AGREEMENT AND DECLARATION OF TRUST
of
TD WATERHOUSE FAMILY OF FUNDS
a Delaware Business Trust
Principal Place of Business:
X.X. Xxx 0
Xxxxxxx Xxxxxxxx Tower, 00xx Xxxxx
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Dated August 10, 1999
TABLE OF CONTENTS
Page
ARTICLE I....................................................................1
DEFINITIONS.............................................................1
ARTICLE II...................................................................2
PURPOSE OF TRUST....................................................2
ARTICLE III..................................................................2
THE TRUSTEES........................................................2
Section 1. Management of the Trust...................2
Section 2. Initial Trustee and Number of Trustees....2
Section 3. Term of Office of Trustees................3
Section 4. Vacancies; Appointment of Trustees........3
Section 5. Temporary Vacancy or Absence..............3
Section 6. Chairman..................................3
Section 7. Delegation; Committees....................3
Section 8. Action by the Trustees....................4
Section 9. Ownership of Trust Property...............4
Section 10. Effect of Trustees Not Serving............4
Section 11. Trustees, Etc. as Shareholders............4
ARTICLE IV...................................................................5
POWERS OF THE TRUSTEES..............................................5
Section 1. Powers....................................5
Section 2. Certain Transactions......................7
Section 3. Payment of Expenses by Shareholders.......8
ARTICLE V....................................................................8
SERIES; CLASSES; SHARES.............................................8
Section 1. Establishment of Series or Classes........8
Section 2. Shares....................................8
Section 3. Investment in the Trust...................9
Section 4. Assets and Liabilities of Series..........9
Section 5. Ownership and Transfer of Shares.........10
Section 6. Exchange Privilege.......................10
Section 7. Status of Shares:Limitation of
Shareholder Liability...............10
ARTICLE VI..................................................................10
DISTRIBUTIONS AND REDEMPTIONS......................................10
Section 1. Distributions............................10
Section 2. Redemptions..............................11
Section 3. Determination of Net Asset Value.........11
Section 4. Suspension of Right of Redemption........11
Section 5. Redemptions Necessary for Qualification
as Regulated Investment Company
or Other Regulatory Purpose..............12
ARTICLE VII.................................................................12
SHAREHOLDERS' VOTING POWERS AND MEETINGS...........................12
Section 1. Voting Powers............................12
Section 2. Meetings of Shareholders.................12
Section 3. Quorum; Required Vote....................13
ARTICLE VIII................................................................13
CONTRACTS WITH SERVICE PROVIDERS...................................13
Section 1. Investment Adviser.......................13
Section 2. Principal Underwriter....................13
Section 3. Transfer Agency, Shareholder Services
and Administration Agreements............14
Section 4. Custodian................................14
Section 5. Parties to Contracts with Service
Providers.............................14
ARTICLE IX..................................................................14
EXPENSES OF THE TRUST AND SERIES...................................14
ARTICLE X...................................................................15
LIMITATION OF LIABILITY AND INDEMNIFICATION........................15
Section 1. Limitation of Liability..................15
Section 2. Indemnification..........................15
Section 3. Indemnification of Shareholders..........17
ARTICLE XI..................................................................17
MISCELLANEOUS......................................................17
Section 1. Trust Not a Partnership..................17
Section 2. Trustee Action; Expert Advice; No
Bond or Surety........................17
Section 3. Record Dates.............................18
Section 4. Termination of the Trust.................18
Section 5. Reorganization; Merger; Consolidation....18
Section 6. Derivative Actions.......................19
Section 7. Declaration of Trust.....................20
Section 8. Applicable Law...........................20
Section 9. Amendments...............................21
Section 10. Fiscal Year..............................21
Section 11. Severability.............................21
AGREEMENT AND DECLARATION OF TRUST
OF
TD WATERHOUSE FAMILY OF FUNDS
This AGREEMENT AND DECLARATION OF TRUST is made on August ___,
1999, by the Trustee named hereunder, to establish a business trust under the
law of Delaware for the investment and reinvestment of funds contributed to the
Trust by investors. The Trustee declares that all money and property contributed
to the Trust shall be held and managed in trust pursuant to this Agreement and
Declaration of Trust. The name of the Trust created by this Agreement and
Declaration of Trust is TD Waterhouse Family of Funds.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a)......"Bylaws" means the Bylaws of the Trust adopted by the
Trustees, which Bylaws are incorporated by reference herein in their entirety,
as amended from time to time;
(b)......"Class" means the class of Shares of a Series
established pursuant to Article V;
(c)......"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations thereunder, as adopted
or amended from time to time;
(d)......"Commission," "Interested Person," and "Principal
Underwriter" have the meanings provided in the 1940 Act;
(e)......"Covered Person" means a person so defined in Article
X, Section 2;
(f)......"Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to time;
(g)......"Delaware Act" means Chapter 38 of Title 12 of the
Delaware Code entitled "Treatment of Delaware Business Trusts," as amended from
time to time;
(h)......"Majority Shareholder Vote" means "the vote of a
majority of the outstanding voting securities" as defined in the 1940 Act;
(i)......"Outstanding Shares" means Shares shown in the books
of the Trust or its transfer agent as then outstanding;
(j)......"Series" means a series of Shares established
pursuant to Article V;
(k)......"Shareholder" means a record owner of Outstanding
Shares;
(l)......"Shares" mean the equal proportionate transferable
units of interest into which the beneficial interest of each Series or Class is
divided from time to time (including whole Shares and fractions of Shares);
(m)......"Trust" means TD Waterhouse Family of Funds
established hereby, and reference to the Trust, when applicable to one or more
Series, refers to that Series;
(n)......"Trustees" means the person who has signed this
Declaration of Trust and all other Person or Persons who may from time to time
be duly elected or appointed to serve as Trustee or Trustees in accordance with
the provisions hereof, in each case so long as such Person or Persons shall
continue in office in accordance with the terms of this Declaration of Trust,
and reference herein to the Trustee or the Trustees shall refer to such Person
or Persons in his, her or their capacities as trustee or trustees hereunder;
(o)......"Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the Trust or
the Trustees on behalf of the Trust or any Series;
(p)......The "1940 Act" means the Investment Company Act of
1940, as amended from time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may from time to time determine pursuant to
the Trustees' authority under this Declaration of Trust.
ARTICLE III
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs
of the Trust shall be managed by or under the direction of the Trustees, and
they shall have all powers necessary or desirable to carry out that
responsibility. The Trustees may execute all instruments and take all action
they deem necessary or desirable to promote the interests of the Trust. Any
determination made by the Trustees in good faith as to what is in the interests
of the Trust shall be conclusive.
Section 2. Initial Trustee and Number of Trustees. The initial
Trustee shall be the person signing this Declaration of Trust. The exact number
of Trustees (other than the initial Trustee) shall be fixed from time to time by
a majority of the Trustees. Other than the initial Trustee and Trustees
appointed to fill vacancies pursuant to Section 4 of this Article, the
Shareholders shall elect the Trustees on such dates as the Trustees may fix from
time to time.
Section 3. Term of Office of Trustees. Each Trustee shall hold
office for life or until his successor is elected and qualified or the Trust
terminates; except that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation effective upon such
delivery or a later date specified therein; (b) any Trustee who requests to be
retired, or who has become physically or mentally incapacitated or is otherwise
unable to serve, may be retired by a written instrument signed by a majority of
the other Trustees, specifying the effective date of retirement; (c) any Trustee
shall be retired or removed with or without cause at any time upon the unanimous
written request of the remaining Trustees; and (d) any Trustee may be removed at
any meeting of the Shareholders by a vote of at least two-thirds of the
Outstanding Shares. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee or Trustees resigning and no Trustee or
Trustees removed shall have any right to any compensation for any period
following the effective date of his or her resignation or removal, or any right
of damages on account of such removal.
Section 4. Vacancies; Appointment of Trustees. Whenever a
vacancy shall exist, regardless of the reason for such vacancy, the remaining
Trustees shall appoint any person as they determine in their sole discretion to
fill that vacancy, consistent with the limitations under the 1940 Act. Such
appointment shall be made by a written instrument signed by a majority of the
Trustees or by a resolution of the Trustees, duly adopted and recorded in the
records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation or removal of a
Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Trustee has accepted his or her appointment in writing, the Trust
estate shall vest in the new Trustee, together with the continuing Trustees,
without any further act or conveyance, and he or she shall be deemed a Trustee
hereunder. In the event of death, declination, resignation, retirement, removal,
or incapacity of all the then Trustees within a short period of time and without
the opportunity for at least one Trustee being able to appoint additional
Trustees to replace those no longer serving, the Trust's investment adviser(s)
are empowered to appoint a new Trustee or new Trustees subject to the provisions
of Section 16(a) of the 1940 Act.
Section 5. Temporary Vacancy or Absence. Whenever a vacancy in
the Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence or incapacity shall be conclusive. Any Trustee may, by power of
attorney, delegate his powers as Trustee for a period not to exceed six (6)
months, unless otherwise extended for one or more additional consecutive six (6)
month periods, to any other Trustee or Trustees.
Section 6. Chairman. The Trustees shall appoint one
of their number to be Chairman of the Trustees. The Chairman shall preside
at all meetings of the Trustees, and shall be responsible for the execution
of policies established by the Trustees and the administration of the Trust.
Section 7. Delegation; Committees. The Trustees shall have
power to delegate from time to time to such of their number or to officers,
employees or agents 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 expedient, to the same extent as such
delegation is permitted by the 1940 Act.
Section 8. Action by the Trustees. The Trustees shall act by
majority vote at a meeting duly called (including at a telephonic meeting at
which all participants can hear one another, unless the 1940 Act requires that a
particular action be taken only at a meeting of the Trustees in person) at which
a quorum is present or by written consent of a majority of Trustees (or such
greater number as may be required by applicable law) without a meeting.
One-third of the Trustees shall constitute a quorum at any meeting. Meetings of
the Trustees may be called orally or in writing by the Chairman of the Trustees
or by any two other Trustees. Notice of the time, date and place of all Trustees
meetings shall be given to each Trustee by telephone, facsimile or other
electronic mechanism sent to his home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to his home or
business address at least seventy-two hours in advance of the meeting, unless,
in case of exigency, the Chairman of the Trustees, the President or the
Secretary shall prescribe any shorter notice period with the notice to be given
personally by telephone, facsimile or other electronic mechanism to all of the
Trustees at their respective residences or places of business. Notice need not
be given to any Trustee who attends the meeting without objecting to the lack of
notice or who signs a waiver of notice either before, at or after the meeting.
Subject to the requirements of the 1940 Act, the Trustees by majority vote may
delegate to any Trustee or Trustees authority to approve particular matters or
take particular actions on behalf of the Trust. Any written consent or waiver
may be provided and delivered to the Trust by facsimile or other similar
electronic mechanism.
Section 9. Ownership of Trust Property. The Trust Property of
the Trust and of each Series shall be held separate and apart from any assets
now or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. All of the Trust Property and legal title
thereto shall at all times be considered as vested in the Trust, provided that
the Trustees may cause legal title to any Trust Property to be held by or in the
name of the Trustees acting on behalf of the Trust, or in the name of any person
as nominee. No Shareholder shall be deemed to have a severable ownership in any
individual asset of the Trust or of any Series or any right of partition or
possession thereof, but each Shareholder shall have, as provided in Article V, a
proportionate undivided beneficial interest in the Trust or Series represented
by Shares. The Trust or the Trustees on behalf of the Trust shall be deemed to
hold legal and beneficial ownership of any income earned on securities held by
the Trust issued by any business entity formed, organized or existing under the
laws of any jurisdiction other than a state, commonwealth, possession or colony
of the United States or the laws of the United States.
Section 10. Effect of Trustees Not Serving. The death,
resignation, retirement, removal, incapacity or inability or refusal to serve of
the Trustees, or any one 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.
Section 11. Trustees, Etc. as Shareholders. Subject to
any restrictions in the Bylaws, any Trustee, officer, agent or independent
contractor of the Trust may acquire, own and dispose of Shares to the same
extent as any other Shareholder, and the Trustees may issue and sell Shares
to and buy Shares from any such person or any firm or company in which
such person is interested, subject only to any general limitations herein.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 1. Powers. The Trustees in all instances shall act as
principals, free of the control of the Shareholders. The Trustees shall have
full power and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider necessary or
desirable in the management of the Trust. The Trustees shall not in any way be
bound or limited by current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any investments
which they, in their sole discretion, deem proper to accomplish the purposes of
the Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority. Subject to any applicable limitation herein or in the
Bylaws or resolutions of the Trust, the Trustees shall have power and authority,
without limitation:
(a)......To invest and reinvest cash and other property, and
to hold cash or other property uninvested, without in any event being bound or
limited by any current or future law or custom concerning investments by
trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the Trust Property; to invest in obligations,
securities and assets of any kind, and without regard to whether they may mature
before or after the possible termination of the Trust; and without limitation to
invest all or any part of its cash and other assets and property in securities
issued by any investment company or series thereof;
(b)......To operate as and carry on the business of an
investment company, and exercise all the powers necessary and proper to conduct
such a business;
(c)......To adopt Bylaws not inconsistent with this
Declaration of Trust providing for the conduct of the business of the Trust and
to amend and repeal them to the extent such right is not reserved to the
Shareholders;
(d)......To elect and remove such officers and appoint and
terminate such agents, independent contractors and delegates as they deem
appropriate;
(e)......To employ an investment adviser (subject to such
general or specific instruments as the Trustees may from time to time adopt) to
effect purchases, sales, loans or exchanges of Trust Property on behalf of the
Trustees or to authorize any officer, employee or Trustee to effect such
purchases, sales, loans or exchanges pursuant to recommendations of any such
investment adviser;
(f)......To employ as custodian of any Trust Property, subject
to any provisions herein or in the Bylaws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted by the Commission to serve as such;
(g)......To retain one or more transfer agents, dividend
disbursing agents, placement agents, administrators, or Shareholder servicing
agents, or both;
(h)......To provide for the distribution of Shares, either
through a Principal Underwriter or distributor as provided herein, or by the
Trust itself, or both, or pursuant to a distribution plan of any kind, in the
United States and any foreign jurisdiction selected by the Trustees;
(i)......To set record dates in the manner provided for herein
or in the Bylaws;
(j)......To delegate such authority as they consider desirable
to any officers of the Trust and to any agent, subagent, independent contractor,
delegate, manager, investment adviser, custodian or underwriter;
(k)......To sell or exchange any or all of the Trust Property;
(l)......To vote or give assent, or exercise any rights of
ownership, with respect to securities or other property; and to execute and
deliver powers of attorney delegating such power to other persons;
(m)......To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(n)......To hold any security or other Trust Property (i) in a
form not indicating any trust, whether in bearer, book entry, unregistered or
other negotiable form, or (ii) either in the Trust's or Trustees' own name or in
the name of a custodian or a nominee or nominees, subject to safeguards
according to the usual practice of business trusts or investment companies;
(o)......To establish separate and distinct Series with
separately defined investment objectives, policies or restrictions and distinct
investment purposes, and with separate Shares representing beneficial interests
in such Series, and to establish separate Classes, all in accordance with the
provisions of Article V;
(p)......To the full extent permitted by Section 3806 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust to a
particular Series and liabilities and expenses to a particular Class or to
apportion the same between or among two or more Series or Classes, provided that
any liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series or Class as provided
for in Article V, Section 4;
(q)......To consent to or participate in any plan for the
liquidation, reorganization, consolidation or merger of any corporation or
concern whose securities are held by the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or concern;
and to pay calls or subscriptions with respect to any security held by the
Trust;
(r)......To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(s)......To make distributions of income and of capital gains
to Shareholders in the manner provided in this Declaration of Trust or in the
Bylaws;
(t)......To borrow money and in connection therewith to issue
notes or other evidences of indebtedness and to pledge or grant security
interests in Trust Property as security therefor;
(u)......To establish committees for such purposes, with such
membership, and with such responsibilities, as the Trustees may consider proper;
(v)......To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in Shares; to
establish terms and conditions regarding the issuance, sale, repurchase,
redemption, cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles V and VI, to apply
to any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust or of the particular Series with
respect to which such Shares are issued;
(w)......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;
(x)......To sell all or a portion of the Shares to another
investment company that is registered under the 1940 Act, in the Trustees' sole
discretion, without the vote or approval of any Shareholder or Shareholders,
notwithstanding any other provision of this Declaration of Trust or the Bylaws
to the contrary; and
(y)......To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary or
desirable to accomplish any purpose or to further any of the foregoing powers,
and to take every other action incidental to the foregoing business or purposes,
objects or powers.
The clauses above shall be construed as objects and powers,
and the enumeration of specific powers shall not limit in any way the general
powers of the Trustees. Any action by one or more of the Trustees in their
capacity as such hereunder shall be deemed an action on behalf of the Trust or
the applicable Series, and not an action in an individual capacity. No one
dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their order. In
construing this Declaration of Trust, the presumption shall be in favor of a
grant of power to the Trustees.
Section 2. Certain Transactions. Except as prohibited by
applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to, any Trustee
or officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any investment
adviser, administrator, distributor or transfer agent for the Trust or with any
Interested Person of such person. The Trust may employ any such person or entity
in which such person is an Interested Person, as broker, legal counsel,
registrar, investment adviser, administrator, distributor, transfer agent,
dividend disbursing agent, custodian or in any other capacity upon customary
terms.
Section 3. Payment of Expenses by Shareholders. The Trustees
shall have the power, as frequently as they may determine, to cause each
Shareholder, or each Shareholder of any particular Series, to pay directly, in
advance or arrears, for charges of the Trust's custodian or transfer,
Shareholder servicing or similar agent, an amount fixed from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends owed such Shareholder and/or by reducing the number of
Shares in the account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such charges due
from such Shareholder.
ARTICLE V
SERIES; CLASSES; SHARES
Section 1. Establishment of Series or Classes. The Trust shall
consist of one or more Series. The Trustees hereby establish the Series listed
in Schedule A attached hereto and made a part hereof. Each additional Series
shall be established by the adoption of a resolution of the Trustees. The
Trustees may designate the relative rights and preferences of the Shares of each
Series. The Trustees may divide the Shares of any Series into Classes. In such
case each Class of a Series shall represent interests in the assets of that
Series and have identical voting, dividend, liquidation and other rights and the
same terms and conditions, except that expenses allocated to a Class may be
borne solely by such Class as determined by the Trustees and a Class may have
exclusive voting rights with respect to matters affecting only that Class. The
Trust shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust or
of any other Series. A Series may issue any number of Shares and need not issue
Shares. Each Share of a Series shall represent an equal beneficial interest in
the net assets of such Series. Each holder of Shares of a Series shall be
entitled to receive his pro rata share of all distributions made with respect to
such Series. Upon redemption of his Shares, such Shareholder shall be paid
solely out of the funds and property of such Series. The Trustees may change the
name of any Series or Class. At any time that there are no Shares outstanding of
any particular Series previously established and designated, the Trustees may by
a majority vote abolish that Series and rescind the establishment and
designation thereof.
Section 2. Shares. The beneficial interest in the Trust shall
be divided into Shares of one or more separate and distinct Series or Classes
established by the Trustees. The number of Shares of each Series and Class is
unlimited and each Share shall have a par value of $0.001 per Share. All Shares
issued hereunder shall be fully paid and nonassessable. Shareholders shall have
no preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval:
to issue original or additional Shares at such times and on such terms and
conditions as they deem appropriate; to issue fractional Shares and Shares held
in the treasury; to establish and to change in any manner Shares of any Series
or Classes with such preferences, terms of conversion, voting powers, rights and
privileges as the Trustees may determine (but the Trustees may not change
Outstanding Shares in a manner materially adverse to the Shareholders of such
Shares); to divide or combine the Shares of any Series or Classes into a greater
or lesser number; to classify or reclassify any unissued Shares of any Series or
Classes into one or more Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the
Trustees may deem desirable. Shares held in the treasury shall not confer any
voting rights on the Trustees and shall not be entitled to any dividends or
other distributions declared with respect to the Shares.
Section 3. Investment in the Trust. The Trustees shall accept
investments in any Series from such persons and on such terms as they may from
time to time authorize. At the Trustees' discretion, such investments, subject
to applicable law, may be in the form of cash or securities in which that Series
is authorized to invest, valued as provided in Article VI, Section 3.
Investments in a Series shall be credited to each Shareholder's account in the
form of full Shares at the Net Asset Value per Share next determined after the
investment is received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class, (b) issue fractional
Shares, or (c) determine the Net Asset Value per Share of the initial capital
contribution. The Trustees shall have the right to refuse to accept investments
in any Series at any time without any cause or reason therefor whatsoever.
Section 4. Assets and Liabilities of Series. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof (including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be), shall be held and accounted for separately from the other assets
of the Trust and every other Series and are referred to as "assets belonging to"
that Series. The assets belonging to a Series shall belong only to that Series
for all purposes, and to no other Series, subject only to the rights of
creditors of that Series. Any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Series shall be allocated by the Trustees between and among one
or more Series as the Trustees deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders of all Series for all
purposes, and such assets, earnings, income, profits or funds, or payments and
proceeds thereof shall be referred to as assets belonging to that Series. The
assets belonging to a Series shall be so recorded upon the books of the Trust,
and shall be held by the Trustees in trust for the benefit of the Shareholders
of that Series. The assets belonging to a Series shall be charged with the
liabilities of that Series and all expenses, costs, charges and reserves
attributable to that Series, except that liabilities and expenses allocated
solely to a particular Class shall be borne by that Class. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series or Class shall be
allocated and charged by the Trustees between or among any one or more of the
Series or Classes in such manner as the Trustees deem fair and equitable. Each
such allocation shall be conclusive and binding upon the Shareholders of all
Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of
the Trustees to allocate general liabilities, expenses, costs, charges or
reserves as herein provided, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
Series shall be enforceable against the assets of such Series only, and not
against the assets of the Trust generally or of any other Series. Notice of this
contractual limitation on liabilities among Series may, in the Trustees'
discretion, be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act, and
upon the giving of such notice in the certificate of trust, the statutory
provisions of Section 3806 of the Delaware Act relating to limitations on
liabilities among Series (and the statutory effect under Section 3806 of setting
forth such notice in the certificate of trust) shall become applicable to the
Trust and each Series. Any person extending credit to, contracting with or
having any claim against any Series may look only to the assets of that Series
to satisfy or enforce any debt, liability, obligation or expense incurred,
contracted for or otherwise existing with respect to that Series. No Shareholder
or former Shareholder of any Series shall have a claim on or any right to any
assets allocated or belonging to any other Series.
Section 5. Ownership and Transfer of Shares. The Trust shall
maintain a register containing the names and addresses of the Shareholders of
each Series, the number of Shares of each Series and Class thereof, and a record
of all Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the Shares held by them from time to time. The
Trustees may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates.
Section 6. Exchange Privilege. The Trustees shall have the
authority to provide that the holders of the Shares of any Series shall have the
right to exchange said Shares for Shares of one or more other Series of Shares
in accordance with such requirements and procedures as may be established by the
Trustees.
Section 7. Status of Shares: Limitation of Shareholder
Liability. Shares shall be deemed to be personal property giving Shareholders
only the rights provided in this Declaration of Trust. Every Shareholder, by
virtue of having acquired a Share, shall be held expressly to have assented to
and agreed to be bound by the terms of this Declaration of Trust. No Shareholder
shall be personally liable for the debts, liabilities, obligations and expenses
incurred by, contracted for, or otherwise existing with respect to, the Trust or
any Series. Neither the Trust nor the Trustees shall have any power to bind any
Shareholder personally or to demand payment from any Shareholder for anything,
other than as agreed by the Shareholder. Shareholders shall have the same
limitation of personal liability as is extended to shareholders of a private
corporation for profit incorporated in the State of Delaware. Every written
obligation of the Trust or any Series shall contain a statement to the effect
that such obligation may only be enforced against the assets of the Trust or
such Series; however, the omission of such statement shall not operate to bind
or create personal liability for any Shareholder or Trustee.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may declare and pay
dividends and other distributions, including dividends on Shares of a particular
Series and other distributions from the assets belonging to that Series. The
amount and payment of dividends or distributions and their form, whether they
are in cash, Shares or other Trust Property, shall be determined by the
Trustees. Dividends and other distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All dividends
and other distributions on Shares of a particular Series shall be distributed
pro rata to the Shareholders of that Series in proportion to the number of
Shares of that Series they held on the record date established for such payment,
except that such dividends and distributions shall appropriately reflect
expenses allocated to a particular Class of such Series. The Trustees may adopt
and offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans or similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Each Shareholder of a Series shall
have the right at such times as may be permitted by the Trustees to require the
Series to redeem all or any part of his Shares at a redemption price per Share
equal to the Net Asset Value per Share at such time as the Trustees shall have
prescribed by resolution. In the absence of such resolution, the redemption
price per Share shall be the Net Asset Value next determined after receipt by
the Series of a request for redemption in proper form less such charges as are
determined by the Trustees and described in the Trust's Registration Statement
for that Series under the Securities Act of 1933, as amended from time to time.
The Trustees may specify conditions, prices, and places of redemption, and may
specify binding requirements for the proper form or forms of requests for
redemption. Payment of the redemption price may be wholly or partly in
securities or other assets at the value of such securities or assets used in
such determination of Net Asset Value, or may be in cash. Upon redemption,
Shares may be reissued from time to time. The Trustees may require Shareholders
to redeem Shares for any reason under terms set by the Trustees, including the
failure of a Shareholder to supply a personal identification number if required
to do so, or to have the minimum investment required, or to pay when due for the
purchase of Shares issued to him. To the extent permitted by law, the Trustees
may retain the proceeds of any redemption of Shares required by them for payment
of amounts due and owing by a Shareholder to the Trust or any Series or Class.
Notwithstanding the foregoing, the Trustees may postpone payment of the
redemption price and may suspend the right of the Shareholders to require any
Series or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
Section 3. Determination of Net Asset Value. The Trustees
shall cause the Net Asset Value of Shares of each Series or Class to be
determined from time to time in a manner consistent with applicable laws and
regulations. The Trustees may delegate the power and duty to determine Net Asset
Value per Share to one or more Trustees or officers of the Trust or to a
custodian, depository or other agent appointed for such purpose. The Net Asset
Value of Shares shall be determined separately for each Series or Class at such
times as may be prescribed by the Trustees or, in the absence of action by the
Trustees, as of the close of trading on the New York Stock Exchange on each day
for all or part of which such Exchange is open for unrestricted trading.
Section 4. Suspension of Right of Redemption. If, as referred
to in Section 2 of this Article, the Trustees postpone payment of the redemption
price and suspend the right of Shareholders to redeem their Shares, such
suspension shall take effect at the time the Trustees shall specify, but not
later than the close of business on the business day next following the
declaration of suspension. Thereafter Shareholders shall have no right of
redemption or payment until the Trustees declare the end of the suspension. If
the right of redemption is suspended, a Shareholder may either withdraw his
request for redemption or receive payment based on the Net Asset Value per Share
next determined after the suspension terminates.
Section 5. Redemptions Necessary for Qualification as
Regulated Investment Company or Other Regulatory Purpose. If the Trustees shall
determine that direct or indirect ownership of Shares of any Series by any
person (a) has or may become concentrated in that person to an extent which
would disqualify any Series as a regulated investment company under the Internal
Revenue Code of 1986, as amended or superseded from time to time ("Internal
Revenue Code"), or (b) would conflict with any other applicable regulatory
requirement, then the Trustees shall have the power (but not the obligation) by
lot or other means they deem equitable to (a) call for redemption by any such
person of a number, or principal amount, of Shares sufficient to maintain or
bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification or regulatory requirement and (b) refuse to
transfer or issue Shares to any person whose acquisition of Shares in question
would, in the Trustees' judgment, result in such disqualification or conflict.
Any such redemption shall be effected at the redemption price and in the manner
provided in this Article. Shareholders shall upon demand disclose to the
Trustees in writing such information concerning direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the requirements of any
taxing or regulatory authority.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to
vote only with respect to (a) the election of Trustees; (b) the removal of
Trustees; (c) the amendment of this Declaration of Trust to the extent and as
provided in Article XI, Section 9; and (d) such additional matters relating to
the Trust as may be required by law, this Declaration of Trust, or the Bylaws or
any registration of the Trust with the Commission or any State, or as the
Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all
Shares shall be voted by individual Series or Class, except (a) when required by
the 1940 Act, Shares shall be voted in the aggregate and not by individual
Series or Class, and (b) when the Trustees have determined that the matter
affects the interests of more than one Series or Class, then the Shareholders of
all such Series or Classes shall be entitled to vote thereon. 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 or in any manner provided for in the Bylaws. The
Bylaws may provide that proxies may be given by any electronic or
telecommunications device or in any other manner, but if a proposal by anyone
other than the officers or Trustees is submitted to a vote of the Shareholders
of any Series or Class, or if there is a proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or Trustees, Shares may
be voted only in person or by written proxy. Until Shares of a Series are
issued, as to that Series, the Trustees may exercise all rights of Shareholders
and may take any action required or permitted to be taken by Shareholders by
law, this Declaration of Trust or the Bylaws.
Section 2. Meetings of Shareholders. The first Shareholders'
meeting shall be held to elect Trustees at such time and place as the Trustees
designate, provided, however, that such election may be accomplished by the
Shareholders' written consent. Special meetings of the Shareholders of any
Series or Class may be called by the Trustees and shall be called by the
Trustees upon the written request of Shareholders owning at least ten percent
(10%) of the Outstanding Shares of such Series entitled to vote. Shareholders
shall be entitled to at least ten days' notice of any meeting, given as
determined by the Trustees.
Section 3. Quorum; Required Vote. One third of the Outstanding
Shares of each Series or Class, or one third of the Outstanding Shares of the
Trust, entitled to vote in person or by proxy shall be a quorum for the
transaction of business at a Shareholders meeting with respect to such Series or
Class, or with respect to the entire Trust, respectively. Except when a larger
vote is required by law, this Declaration of Trust or the Bylaws, at any meeting
at which a quorum is present, a majority of the total Shares voted in person or
by proxy shall decide any matters to be voted upon with respect to the entire
Trust and a plurality of such Shares shall elect a Trustee; provided, that if
this Declaration of Trust or applicable law permits or requires that Shares be
voted on any matter by individual Series or Classes, then a majority of the
Shares of that Series or Class (or, if required by law, a Majority Shareholder
Vote of that Series) voted in person or by proxy on the matter shall decide that
matter insofar as that Series or Class is concerned. Shareholders may act as to
the Trust or any Series or Class by the written consent of a majority (or such
greater amount as may be required by applicable law) of the Outstanding Shares
of the Trust or of such Series or Class, as the case may be.
Notwithstanding any other provision herein or in the Bylaws,
any meeting of Shareholders, whether or not a quorum is present, may be
adjourned from time to time by the vote of the majority of the total Shares
represented at that meeting, either in person or by proxy. Any adjourned session
of a meeting of Shareholders may be held within a reasonable time without
further notice.
ARTICLE VIII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. Subject to a Majority
Shareholder Vote, the Trustees may enter into one or more investment advisory
contracts on behalf of the Trust or any Series, providing for investment
advisory services, statistical and research facilities and services, and other
facilities and services to be furnished to the Trust or Series on terms and
conditions acceptable to the Trustees. Any such contract may provide for the
investment adviser to effect purchases, sales or exchanges of portfolio
securities or other Trust Property on behalf of the Trustees or may authorize
any officer or agent of the Trust to effect such purchases, sales or exchanges
pursuant to recommendations of the investment adviser. The Trustees may
authorize the investment adviser to employ one or more subadvisers. Any
reference in this Declaration of Trust to the investment adviser shall be deemed
to include such subadvisers, unless the context otherwise requires.
Section 2. Principal Underwriter. The Trustees may enter into
contracts on behalf of the Trust or any Series or Class, providing for the
distribution and sale of Shares by the other party, either directly or as sales
agent, on terms and conditions acceptable to the Trustees. The Trustees may
adopt a plan or plans of distribution with respect to Shares of any Series or
Class and enter into any related agreements, whereby the Series or Class
finances directly or indirectly any activity that is primarily intended to
result in sales of its Shares, subject to the requirements of Section 12 of the
1940 Act, Rule 12b-1 thereunder, and other applicable rules and regulations.
Section 3. Transfer Agency, Shareholder Services and
Administration Agreements. The Trustees, on behalf of the Trust or any Series or
Class, may enter into transfer agency agreements, Shareholder service agreements
and administration and management agreements with any party or parties on terms
and conditions acceptable to the Trustees or delegate to a service provider the
arrangement of these and other services.
Section 4. Custodian. The Trustees shall at all times place
and maintain the securities and similar investments of the Trust and of each
Series in custody meeting the requirements of Section 17(f) of the 1940 Act and
the rules thereunder. The Trustees, on behalf of the Trust or any Series, may
enter into an agreement with a custodian on terms and conditions acceptable to
the Trustees, providing for the custodian, among other things, to (a) hold the
securities owned by the Trust or any Series and deliver the same upon written
order or oral order confirmed in writing, (b) receive and receipt for any moneys
due to the Trust or any Series and deposit the same in its own banking
department or elsewhere, (c) disburse such funds upon orders or vouchers, and
(d) employ one or more sub-custodians.
Section 5. Parties to Contracts with Service Providers. The
Trustees may enter into any contract referred to in this Article with any
entity, although one or more of the Trustees or officers of the Trust may be an
officer, director, trustee, partner, shareholder or member of such entity, and
no such contract shall be invalidated or rendered void or voidable because of
such relationship. No person having such a relationship shall be disqualified
from voting on or executing a contract in his capacity as Trustee and/or
Shareholder, or be liable merely by reason of such relationship for any loss or
expense to the Trust with respect to such a contract or accountable for any
profit realized directly or indirectly therefrom.
Any contract referred to in Sections 1 and 2 of this Article
shall be consistent with and subject to the applicable requirements of Section
15 of the 1940 Act and the rules and orders thereunder with respect to its
continuance in effect, its termination and the method of authorization and
approval of such contract or renewal. No amendment to a contract referred to in
Section 1 of this Article shall be effective unless assented to in a manner
consistent with the requirements of Section 15 of the 1940 Act, and the rules
and orders thereunder.
ARTICLE IX
EXPENSES OF THE TRUST AND SERIES
Subject to Article V, Section 4, the Trust or a particular
Series shall pay, directly or indirectly through contractual arrangements, or
shall reimburse the Trustees from the Trust estate or the assets belonging to
the particular Series, for their expenses and disbursements, including, but not
limited to, interest charges, taxes, brokerage fees and commissions; expenses of
pricing Trust portfolio securities; expenses of sale, addition and reduction of
Shares; certain insurance premiums; applicable fees, interest charges and
expenses of third parties, including the Trust's investment advisers, managers,
administrators, distributors, custodians, transfer agents and fund accountants;
fees of pricing, interest, dividend, credit and other reporting services; costs
of membership in trade associations; telecommunications expenses; funds
transmission expenses; auditing, legal and compliance expenses; costs of forming
the Trust and its Series and maintaining its existence; costs of preparing and
printing the prospectuses of the Trust and each Series, statements of additional
information and Shareholder reports and delivering them to Shareholders;
expenses of meetings of Shareholders and proxy solicitations therefor; costs of
maintaining books and accounts; costs of reproduction, stationery and supplies;
fees and expenses of the Trustees; compensation of the Trust's officers and
employees and costs of other personnel performing services for the Trust or any
Series; costs of Trustee meetings; Commission registration fees and related
expenses; registration fees and related expenses under state or foreign
securities or other laws; and for such non-recurring items as may arise,
including litigation to which the Trust or a Series (or a Trustee or officer of
the Trust acting as such) is a party, and for all losses and liabilities by them
incurred in administering the Trust. The Trustees shall have a lien on the
assets belonging to the appropriate Series, or in the case of an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto, for the reimbursement to
them of such expenses, disbursements, losses and liabilities. This Article shall
not preclude the Trust from directly paying any of the aforementioned fees and
expenses.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons contracting
with or having any claim against the Trust or a particular Series shall look
only to the assets of the Trust or such Series for payment under such contract
or claim; and neither the Trustees nor any of the Trust's officers, employees or
agents, whether past, present or future, shall be personally liable therefor.
Every written instrument or obligation on behalf of the Trust or any Series may
contain a statement to the foregoing effect, but the absence of such statement
shall not operate to make any Trustee or officer of the Trust liable thereunder.
Provided they have exercised reasonable care and have acted under the reasonable
belief that their actions are in the best interest of the Trust, the Trustees,
officers, employees and managers of the Trust shall not be responsible or liable
for any act or omission or for neglect or wrongdoing of them or any officer,
agent, employee, manager, investment adviser, delegate or independent contractor
of the Trust, but nothing contained in this Declaration of Trust or in the
Delaware Act shall protect any Trustee, officer, employee or manager of the
Trust against liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
Section 2. Indemnification.
(a)......Subject to the exceptions and limitations contained
in subsection (b) below:
(i)......every person who is, or has been, a Trustee, officer,
employee, manager or agent of the Trust (including persons who serve at the
Trust's request as directors, trustees, officers or agents of another
organization in which the Trust has any interest as a shareholder, creditor or
otherwise) ("Covered Person") shall be indemnified by the Trust or the
appropriate Series to the fullest extent permitted by law against liability and
against all expenses reasonably incurred or paid by such person in connection
with any claim, action, suit or proceeding in which such person becomes involved
as a party or otherwise by virtue of being or having been a Covered Person and
against amounts paid or incurred by such person in the settlement thereof,
whether or not such person is a Covered Person at the time such expenses are
incurred;
(ii).....as used herein, the words "claim," "action," "suit,"
or "proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened while in office or
thereafter, and the words "liability" and "expenses" shall include, without
limitation, attorney's fees, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
(b)......No indemnification shall be provided hereunder to a
Covered Person:
(i)......Who shall have been adjudicated by a court or body
before which the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office, or (B)
not to have acted in good faith in the reasonable belief that his action was in
or not opposed to the best interests of the Trust; or
(ii).....In the event of a settlement, unless there has been 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 his office: (A) by the court or other body approving the settlement;
(B) by at least a majority of those Trustees who are neither Interested Persons
of the Trust nor are parties to the matter based upon a review of readily
available facts (as opposed to a full trial type inquiry); or (C) by written
opinion of independent legal counsel based upon a review of readily available
facts (as opposed to a full trial type inquiry).
(c)......To the maximum extent permitted by applicable law,
expenses in connection with the preparation and presentation of a defense to any
claim, action, suit or proceeding of the character described in subsection (a)
of this Section may be paid by the Trust or applicable Series from time to time
prior to final disposition thereof upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by such person
to the Trust or applicable Series if it is ultimately determined that such
person is not entitled to indemnification under this Section; provided, however,
that either (i) such Covered Person shall have provided appropriate security for
such undertaking, (ii) the Trust is insured against losses arising out of any
such advance payments or (iii) either a majority of the Trustees who are neither
Interested Persons of the Trust nor parties to the matter, or independent legal
counsel in a written opinion, shall have determined, based upon a review of
readily available facts (as opposed to a full trial type inquiry) that there is
reason to believe that such Covered Person will not be disqualified from
indemnification under this Section.
(d)......The rights of indemnification herein provided shall
be severable, shall not be exclusive of or affect any other rights to which any
Covered Person may now or hereafter be entitled, and shall inure to the benefit
of the heirs, executors and administrators of a Covered Person.
(e)......By action of the Trustees, and notwithstanding any
interest of the Trustees in the action, the Trust shall have power to purchase
and maintain insurance, in such amounts as the Trustees deem appropriate, on
behalf of any Covered Person, whether or not such person is indemnified against
such liability or expense under the provisions of this Article X and whether or
not the Trust would have the power or would be required to indemnify such person
against such liability under the provisions of this Article X or of the Delaware
Act or by any other applicable law, subject only to any limitations imposed by
the 1940 Act.
(f)......Any repeal or modification of this Article X by the
Shareholders of the Trust, or adoption or modification of any other provision of
the Declaration of Trust or Bylaws inconsistent with this Article, shall be
prospective only, to the extent that such repeal or modification would, if
applied retrospectively, adversely affect any limitation on the liability of any
Covered Person or indemnification available to any Covered Person with respect
to any act or omission which occurred prior to such repeal, modification or
adoption.
Section 3. Indemnification of Shareholders. If any Shareholder
or former Shareholder of any Series shall be held personally liable solely by
reason of being or having been a Shareholder and not because of acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
such person's heirs, executors, administrators or other legal representatives or
in the case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by such Shareholder,
assume the defense of any such claim made against such Shareholder for any act
or obligation of the Series and satisfy any judgment thereon from the assets of
the Series.
ARTICLE XI
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Declaration of Trust
creates a trust and not a partnership, except to the extent such trust is deemed
to constitute a partnership under the Internal Revenue Code and applicable state
tax laws. No Trustee shall have any power to bind personally either the Trust's
officers or any Shareholder.
Section 2. Trustee Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder in good
faith and with reasonable care under the circumstances then prevailing shall be
binding upon everyone interested. Subject to the provisions of Article X, the
Trustees 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 subject to the
provisions of Article X, shall not be liable for any act or omission in
accordance with such advice or 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
obtained.
Section 3. Record Dates. The Trustees may fix in advance a
date up to ninety (90) days before the date of any Shareholders meeting, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of Shares shall go into effect as a record date for the determination
of the Shareholders entitled to notice of, and to vote at, any such meeting, or
to receive any such allotment of rights, or to exercise such rights in respect
of any such change, conversion or exchange of Shares. Any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof.
Section 4. Termination of the Trust.
(a)......Except as provided herein, the Trust shall have
perpetual existence. The Trust may be terminated at any time by vote of a
majority of the Shares of each Series entitled to vote, voting separately by
Series, or by the Trustees by written notice to the Shareholders. Any Series of
Shares or Class thereof may be terminated at any time by vote of a majority of
the Shares of such Series or Class entitled to vote or by the Trustees by
written notice to the Shareholders of such Series or Class.
(b)......Upon the requisite Shareholder vote or action by the
Trustees to terminate the Trust or any one or more Series or any Class thereof,
after making reasonable provision for the payment of all known liabilities of
the Trust or any affected Series, the Trustees shall distribute the remaining
proceeds or assets (as the case may be) ratably among the Shareholders of the
Trust or any affected Series or Class; however, the payment to any particular
Class of such Series may be reduced by any fees, expenses or charges allocated
to that Class. Upon completion of the distribution of the remaining proceeds or
assets, the Trust or affected Series or Class shall terminate and the Trustees
and the Trust shall be discharged of any and all further liabilities and duties
hereunder with respect thereto and the right, title and interest of all parties
therein shall be canceled and discharged.
(c)......Upon termination of the Trust, following completion
of winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust's certificate of trust to be filed in accordance with
the Delaware Act, which certificate of cancellation may be signed by any one
Trustee.
Section 5. Reorganization; Merger; Consolidation.
(a)......Notwithstanding anything else herein, to change the
Trust's form of organization the Trustees may, without Shareholder approval to
the extent permitted by applicable law, (i) cause the Trust to merge or
consolidate with or into one or more entities, if the surviving or resulting
entity is the Trust or another open-end management investment company under the
1940 Act, or a series thereof, that will succeed to or assume the Trust's
registration under the 1940 Act, (ii) cause the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by law, (iii)
sell the assets of the Trust in exchange for shares of another management
investment company, or (iv) cause the Trust to incorporate under the laws of
Delaware. Any agreement of merger or consolidation or certificate of merger may
be signed by a majority of Trustees and facsimile signatures conveyed by
electronic or telecommunication means shall be valid.
(b)......Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, an agreement of merger or consolidation
approved in accordance with this Section 5 may effect any amendment to the
governing instrument of the Trust or effect the adoption of a new declaration of
trust of the Trust if it is the surviving or resulting trust in the merger or
consolidation.
(c)......The Trustees may create one or more business trusts
to which all or any part of the assets, liabilities, profits, or losses of the
Trust or any Series or Class thereof may be transferred and may provide for the
conversion of Shares in the Trust or any Series or Class thereof into beneficial
interests in any such newly created trust or trusts or any series or classes
thereof.
(d)......Notwithstanding anything else herein, the Trustees
may, without Shareholder approval, invest all or a portion of the Trust Property
of any Series, or dispose of all or a portion of the Trust Property of any
Series, and invest the proceeds of such disposition in interests issued by one
or more other investment companies registered under the 1940 Act. Any such other
investment company may (but need not) be a trust (formed under the laws of the
State of Delaware or any other state or jurisdiction) (or subtrust thereto)
which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by applicable law, cause a Series that
is organized in the master/feeder fund structure to withdraw or redeem its Trust
Property from the master fund and cause such Series to invest its Trust Property
directly in securities and other financial instruments or in another master
fund.
Section 6. Derivative Actions. In addition to the
requirements set forth in Section 3816 of the Delaware Act, a Shareholder
may bring a derivative action on behalf of the Trust only if the following
conditions are met:
(a)......The Shareholder or Shareholders must make a pre-suit
demand upon the Trustees to bring the subject action unless an effort to cause
the Trustees to bring such an action is not likely to succeed. For purposes of
this Section 6(a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action, has
a personal financial interest in the transaction at issue, and a Trustee shall
not be deemed interested in a transaction or otherwise disqualified from ruling
on the merits of a Shareholder demand by virtue of the fact that such Trustee
receives remuneration for his service on the Board of Trustees of the Trust or
on the boards of one or more trusts that are under common management with or
otherwise affiliated with the Trust.
(b)......Unless a demand is not required under paragraph (a)
of this Section 6, Shareholders eligible to bring such derivative action under
the Delaware Act who collectively hold at least 10% of the Outstanding Shares of
the Trust, or who collectively hold at least 10% of the Outstanding Shares of
the Series or Class to which such action relates, shall join in the request for
the Trustee to commence such action; and
(c)......Unless a demand is not required under paragraph (a)
of this Section 6, the Trustees must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such claim.
The Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisers in the event that the Trustees determine not to bring such action.
For purposes of this Section 6, if there is more than one
Trustee, the Board of Trustees may designate a committee of one Trustee to
consider a Shareholder demand if necessary to create a committee with a majority
of Trustees who do not have a personal financial interest in the transaction at
issue. The Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and may require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisers in the event that the Trustees determine not to bring such action.
Section 7. Declaration of Trust. The original or a copy of
this Declaration of Trust and of each amendment hereto or Declaration of Trust
supplemental 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 a
Trustee or an officer of the Trust as to the authenticity of the Declaration of
Trust or any such amendments or supplements and as to any matters in connection
with the Trust. The masculine gender herein shall include the feminine and
neuter genders. Headings herein are for convenience only and shall not affect
the construction of this Declaration of Trust. This Declaration of Trust may be
executed in any number of counterparts, each of which shall be deemed an
original.
Section 8. Applicable Law. This Declaration of Trust and the
Trust created hereunder are governed by and construed and administered according
to the Delaware Act and the applicable laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (a) the provisions of Section 3540 of Title 12 of the
Delaware Code, or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts which
relate to or regulate (i) the filing with any court or governmental body or
agency of trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents or
employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards of responsibility or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
on liabilities or authority and powers of the Trustees set forth or referenced
in this Declaration of Trust. The Trust shall be of the type commonly called a
Delaware business trust, and, without limiting the provisions hereof, the Trust
may exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
Section 9. Amendments. The Trustees may, without any
Shareholder vote, amend or otherwise supplement this Declaration of Trust by
making an amendment, a Declaration of Trust supplemental hereto or an amended
and restated declaration of trust; provided, that Shareholders shall have the
right to vote on any amendment (a) which would affect the voting rights of
Shareholders granted in Article VII, Section 1, (b) to this Section 9, (c)
required to be approved by Shareholders by law or by the Trust's registration
statement(s) filed with the Commission, and (d) submitted to them by the
Trustees in their discretion. Any amendment submitted to Shareholders which the
Trustees determine would affect the Shareholders of any Series or Class shall be
authorized by vote of the Shareholders of such Series or Class and no vote shall
be required of Shareholders of a Series or Class not affected.
Notwithstanding anything else herein, any amendment to Article
X which would have the effect of reducing the indemnification and other rights
provided thereby to Trustees, officers, employees and agents of the Trust or to
Shareholders or former Shareholders, and any repeal or amendment of this
sentence, shall each require the affirmative vote of the holders of two-thirds
of the Outstanding Shares of the Trust entitled to vote thereon.
Section 10. Fiscal Year. The fiscal year of the Trust
shall end on the date set by resolution approved by the Trustees. The Trustees
may change the fiscal year of the Trust without Shareholder approval.
Section 11. Severability. The provisions of this Declaration
of Trust are severable. If the Trustees determine, with the advice of counsel,
that any provision hereof conflicts with the 1940 Act, the regulated investment
company or other 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 this Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination. If any provision hereof shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision only in such jurisdiction and shall not affect any
other provision of this Declaration of Trust.
IN WITNESS WHEREOF, the undersigned, being the initial
Trustee, has executed this Declaration of Trust as of the date first above
written.
......... /s/ XXXXXX X'XXXXXX
------------------------------
......... Xxxxxx X'Xxxxxx, as
Trustee and not individually
X.X. Xxx 0
Xxxxxxx Xxxxxxxx Tower, 00xx Xxxxx
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
SCHEDULE A
SERIES OF THE TRUST
XX Xxxxxxxxxx Xxxx Index Fund
TD Waterhouse 500 Index Fund
TD Waterhouse Extended Market Index Fund
TD Waterhouse Systematic Technology Fund
TD Waterhouse Asian Index Fund
TD Waterhouse European Index Fund
TD Waterhouse Tax Managed Growth Fund
