Exhibit (a)(iv)
EXECUTION COPY
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
WT INVESTMENT TRUST I,
formerly, Kiewit Investment Trust,
a Delaware Business Trust
Effective March 15, 2002
Table of Contents
ARTICLE I Name and Definitions................................................................ 1
Section 1.1. Name..................................................................... 1
Section 1.2. Definitions.............................................................. 1
ARTICLE II Purpose of Trust................................................................... 3
ARTICLE III Interests......................................................................... 3
Section 3.1. Interests................................................................ 3
Section 3.2. Establishment and Designation of Interests............................... 4
Section 3.3. Relative Rights and Preferences.......................................... 4
Section 3.4. Ownership of Interests................................................... 6
Section 3.5. Investments in the Trust................................................. 6
Section 3.6. Status of Interests and Limitation of Personal Liability................. 6
Section 3.7. Actions Affecting Series................................................. 7
Section 3.8. Series Established as a Partnership...................................... 7
ARTICLE IV The Board of Trustees.............................................................. 7
Section 4.1. Number................................................................... 7
Section 4.2. Election and Tenure...................................................... 7
Section 4.3. Effect of Death, Resignation, etc. of a Trustee.......................... 8
Section 4.4. Trustee Compensation..................................................... 8
ARTICLE V Power of the Trustees............................................................... 8
Section 5.1. Management of the Trust.................................................. 8
Section 5.2. Action by Written Consent................................................ 8
Section 5.3. Powers of the Trustees................................................... 8
Section 5.4. Payment of Expenses by the Trust......................................... 12
Section 5.5. Ownership of Assets of the Trust......................................... 12
Section 5.6. Issuance and Repurchase of Interests..................................... 12
Section 5.7. Power of Board of Trustees to Change Provisions Relating to Interests.... 12
ARTICLE VI Service Contracts.................................................................. 13
Section 6.1. Investment Manager....................................................... 13
Section 6.2. Principal Underwriter.................................................... 13
Section 6.3. Other Service Contracts.................................................. 13
Section 6.4. Validity of Contracts.................................................... 13
ARTICLE VII Holders' Voting Powers and Meetings............................................... 14
Section 7.1. Voting Powers............................................................ 14
Section 7.2. Voting Power and Meetings................................................ 14
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Section 7.3. Quorum and Required Vote................................................. 14
Section 7.4. Action by Written Consent................................................ 14
Section 7.5. Record Dates............................................................. 15
ARTICLE VIII Capital Accounts, Net Asset Value, Distributions, and Redemptions................ 15
Section 8.1. Book Capital Accounts.................................................... 15
Section 8.2. Allocations for Tax Purposes............................................. 15
Section 8.3. Determination of Net Asset Value, Net Income, and Distributions.......... 16
Section 8.4. Redemptions and Repurchases.............................................. 16
Section 8.5. Redemptions at the Option of the Trust................................... 16
Section 8.6. Transfer of Interests.................................................... 17
ARTICLE IX Limitation of Liability............................................................ 17
Section 9.1. Indemnification and Limitation of Liability.............................. 17
Section 9.2. Trustee's Good Faith Action, Expert Advice, No Bond or Surety............ 17
Section 9.3. Liability of Third Persons Dealing with Trustees......................... 18
Section 9.4. Insurance................................................................ 18
ARTICLE X Termination and Merger.............................................................. 18
Section 10.1. Termination of Trust or Series........................................ 18
Section 10.2. Merger and Consolidation.............................................. 18
ARTICLE XI Miscellaneous...................................................................... 19
Section 11.1. Amendments............................................................ 19
Section 11.2. Filing of Copies...................................................... 19
Section 11.3. References and Headings............................................... 19
Section 11.4. Applicable Law........................................................ 19
Section 11.5. Provisions in Conflict with Law or Regulations........................ 19
Section 11.6. Business Trust Only................................................... 20
Section 11.7. Counterparts.......................................................... 20
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
WT INVESTMENT TRUST I
(formerly, Kiewit Investment Trust)
The Agreement and Declaration of Trust of Kiewit Investment Trust
(the "Trust"), dated as of February 19, 1997, is hereby amended and restated as
of March 15, 2002, among the individuals listed on the signatory page attached
hereto (each, a "Trustee") and each person who becomes a Holder in accordance
with the terms hereinafter set forth.
WHEREAS, pursuant to Section 1.1, the Trustees are authorized to
conduct the business of the Trust under any name that they may determine;
WHEREAS, the Trustees have determined that the business of the Trust
shall be conducted under the name of "WT Investment Trust I" and that a
Certificate of Amendment was filed with the Secretary of State of the State of
Delaware on October 20, 1998 to change the name of the Trust from "Kiewit
Investment Trust" to "WT Investment Trust I";
WHEREAS, the Trustees desire to amend and restate the Agreement and
Declaration of Trust;
NOW, THEREFORE, the Trustees do hereby declare that all money and
property contributed to the trust hereunder shall be held and managed in trust
under this Agreement and Declaration of Trust, as amended and restated, for the
benefit of the Holders as set forth below.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. This trust shall be known as "WT Investment Trust
I" and the Trustees shall conduct the business of the Trust under that name or
any other name as they may from time to time determine.
Section 1.2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
1.2.1. "Book Capital Account" shall mean the Book Capital
Account of a Holder with respect to such Holder's Interests in any Series of the
Trust, as established and adjusted in accordance with Section 8.1 hereof.
1.2.2. "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time.
1.2.3. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.2.4. "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time.
1.2.5. "Delaware Act" refers to the Delaware Business Trust
Act, 12 Del. C. Section 3801 et seq., as such Act may be amended from time to
time.
1.2.6. "Commission" shall mean the Securities and Exchange
Commission.
1.2.7. "General Assets" shall have the meaning set forth in
Section 3.3.1 hereof.
1.2.8. "Holder" shall mean a record owner of Interests of a
Series of the Trust.
1.2.9. "Interests" shall mean the beneficial interests of each
Holder in the profits, losses, distributions, capital and assets of a Series of
the Trust.
1.2.10. "Interested Person" shall have the meaning set forth
in Section 2(a)(19) of the 0000 Xxx.
1.2.11. "Investment Manager" or "Manager" means a party
furnishing services to the Trust pursuant to any contract described in Section
6.1 hereof.
1.2.12. "Percentage Interest" shall mean with respect to each
Holder of interests in a Series, the ratio of the Book Capital Account of such
Holder to the total of the Book Capital Accounts of all Holders of such Series.
1.2.13. "Person" shall mean and include any of the following:
individuals, corporations, partnerships, trusts, foundations, plans,
associations, joint ventures, estates and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign.
1.2.14. "Principal Underwriter" shall have the meaning set
forth in Section (2)(a)(29) of the 0000 Xxx.
1.2.15. "Series" refers to each separate series of the Trust
as provided in Section 3806(b)(2) of the Delaware Act, and as established and
designated under or in accordance with the provisions of Article III hereof.
1.2.16. "Trust" refers to the Delaware business trust
established by this Declaration of Trust.
1.2.17. "Trustees" refers to the persons who have signed this
Declaration of Trust, so long as they continue in office in accordance with the
terms hereof, and all other
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persons who may from time to time be duly elected or appointed to serve on the
Board of Trustees in accordance with the provisions hereof, and reference herein
to a Trustee or the Trustees shall refer to such person or persons in their
capacity as trustees hereunder.
1.2.18. "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of the Trust, each and every asset of which shall be allocated and belong to a
specific Series of the Trust to the exclusion of all other Series.
1.2.19. "1940 Act" refers to the Investment Company Act of
1940, and the rules and regulations promulgated thereunder, each as amended from
time to time. References herein to specific sections of the 1940 Act shall be
deemed to include such rules and regulations as are applicable to such sections
as determined by the Trustees or their designees.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of an open-end management investment company registered under the 1940
Act through one or more Series investing primarily in securities and to carry on
such other business as the Trustees may from time to time determine pursuant to
authority under this Declaration of Trust.
ARTICLE III
INTERESTS
Section 3.1. Interests.
3.1.1. The beneficial interest in each Series of the Trust
shall at all times be divided into an unlimited number of Interests, with no par
value. All Interests shall be validly issued, fully paid and nonassessable when
issued for such consideration as the Trustees shall determine.
3.1.2. Pursuant to Section 3806(b) of the Delaware Act, the
Trustees shall have authority, from time to time, to establish Interests of a
Series, each of which shall be separate and distinct from the Interests in any
other Series. The Series shall include, without limitation, those Series
specifically established and designated in Section 3.2.1 hereof, and such other
Series as the Trustees may deemed necessary or desirable. The Trustees shall
have exclusive power, without the requirement of Holder approval, from time to
time, to establish and designate such separate and distinct Series, and, subject
to the provisions of this Declaration and the 1940 Act, to fix and determine the
rights of Holders of Interests in such Series.
3.1.3. This Trust is a series trust pursuant to Sections
3804(a) and 3806(b) of the Delaware Act, and each Series shall be a separate
series of the Trust within the meaning of Section 3806(b)(2) of the Delaware
Act. As such, separate and distinct records shall be maintained for each Series
and the assets of the Trust associated with each Series shall be held and
accounted for separately from the other assets of the Trust or any other Series.
The debts,
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liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to each Series shall be enforceable against the assets of
such Series only, and not against the assets of the Trust generally or the
assets of any other Series nor shall the assets of any Series be charged with
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to another Series, or, except as otherwise
provided herein, the Trust generally.
Section 3.2. Establishment and Designation of Interests.
3.2.1. The Trust shall consist of one or more separate and
distinct Series, each with an unlimited number of Interests unless otherwise
specified. The Trustees hereby establish and designate the Series listed on
Schedule A attached hereto and made a part hereof. Each additional Series shall
be established by the adoption of a resolution adopted by a majority of the
Trustees. Each such resolution is incorporated herein by this reference and made
a part of the Declaration of Trust whether or not expressly stated in such
resolution, and shall be effective upon the occurrence of both (i) the date
stated therein (or, if no such date is stated, upon the date of such adoption)
and (ii) the execution of an amendment either to this Declaration of Trust or to
Schedule A hereto establishing and designated such additional Series.
Section 3.3. Relative Rights and Preferences. Interests of
each Series established pursuant to Section 3.2, unless otherwise provided in
the resolution establishing such Series, shall have the following relative
rights and preferences:
3.3.1. Assets Held with Respect to a Particular Series.
(a) Specific Assets. All consideration received by the
Trust for the issue or sale of Interests of a Series, including distributions
paid by, and reinvested in, such Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall irrevocably be held with respect to that Series for
all purposes, subject only to the rights of creditors of such Series, and shall
be so recorded upon the books of account of the Trust. Such consideration,
assets, income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds, in whatever form the same may be, are herein
referred to as "assets held with respect to" that Series.
(b) General Assets. In the event that there are any
assets, income, earnings, profits and proceeds thereof, funds or payments which
are not readily identifiable as assets held with respect to any particular
Series (collectively "General Assets"), the Trustees shall allocate such General
Assets to, between or among any one or more of the Series in such manner and on
such basis as the Trustees, in their sole discretion, deem fair and equitable,
and any General Asset so allocated to a particular Series shall be held with
respect to that Series. Each such allocation by the Trustees shall be conclusive
and binding upon the Holders of all Series for all purposes in absence of
manifest error.
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3.3.2. Liabilities Held with Respect to a Particular Series.
(a) Specific Liabilities. The assets of the Trust held
with respect to each Series shall be charged with the liabilities of the Trust
with respect to such Series and all expenses, costs, charges and reserves
attributable to such Series, and any general liabilities of the Trust which are
not readily identifiable as being held in respect of a Series shall be allocated
and charged by the Trustees to and among any one or more Series in such manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable.
(b) General Liabilities. The liabilities, expenses,
costs, charges, and reserves so charged to a Series are herein referred to as
"liabilities held with respect to" that Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Holders of all Series for all purposes in absence of manifest
error.
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 a
Series, shall look exclusively to the assets held with respect to such Series
for payment of such credit, claim, or contract. None of the debts, liabilities,
obligations and expenses incurred, contracted or otherwise existing with respect
to the Trust generally that have not been allocated to a specified Series, or
with respect to any other Series, shall be enforceable against the assets of
such specified Series. Each creditor, claimant and contracting party shall be
deemed nevertheless to have agreed to such limitation unless an express
provision to the contrary has been incorporated in the written contract or other
document establishing the contractual relationship.
3.3.3. Distributions, Redemptions, and Repurchases. Holders of
any Series shall be entitled to receive distributions, when, if and as declared
with respect thereto in the manner provided in Section 8.3 hereof. The Trustees
shall have full discretion to determine which items shall be treated as income
and which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Holders in absence of manifest error. No
Interest shall have any priority or preference over any other Interest of the
same Series with respect to distributions of the Trust or otherwise. All
distributions shall be made ratably among all Holders of a Series from the
assets held with respect to such Series according to the Percentage Interests of
the Holders of such Series on the record date for any distribution or on the
date of termination of the Trust, as the case may be. No distribution including,
without limitation, any distribution paid upon termination of the Trust or of
any Series with respect to, or any redemption or repurchase of, the Interests of
any Series shall be effected by the Trust other than from the assets held with
respect to such Series, nor shall any Holder of any Series otherwise have any
right or claim against the assets held with respect to any other Series except
to the extent that such Holder has such a right or claim hereunder as a Holder
of such other Series.
3.3.4. Voting. Each Interest shall have voting rights as
provided in Article VII hereof. On each matter submitted to a vote of the
Holders of a Series, each Holder shall be entitled to a proportionate vote based
upon such Holder's Percentage Interest in such Series. As to any matter which
affects the Interests of more than one Series, the Holders of each affected
Series shall be entitled to a proportionate vote based upon such Holder's
Percentage
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Interest, which in such case shall be the ratio of the Book Capital Account of
such Holder to the total of the Book Capital Accounts of all Holders of all
affected Series.
3.3.5. Exchange Privilege. The Trustees shall have the
authority to provide that the Holders of any Series shall have the right to
exchange such Interests for Interests of one or more other Series in accordance
with such requirements and procedures as may be established by the Trustees.
3.3.6. Transferability. The Trustees shall have the authority
to provide that the Interests of a Series are non-transferable.
3.3.7. Preemptive Rights. Holders shall have no preemptive or
other right to subscribe to any additional Interests or other securities issued
by the Trust or any Series.
Section 3.4. Ownership of Interests. The ownership of Interests
shall be recorded on the books of the Trust or a transfer or similar agent for
the Trust, which books shall be maintained separately for the Interests of each
Series. No certificates evidencing the ownership of Interests shall be issued
except as the Board of Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the transfer of
Interests of each Series and similar matters and, by resolution, may restrict
the transfer of Interests of a Series. The record books of the Trust as kept by
the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to the identity of the Holders of Interests of each Series and as
to the Book Capital Account of each Holder of Interests of a Series.
Section 3.5. Investments in the Trust. Investments may be accepted
by the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize. Each investment
shall be credited to the Holder's Book Capital Account as provided in Section
8.1 hereof.
Section 3.6. Status of Interests and Limitation of Personal
Liability. Interests shall be deemed to be personal property giving only the
rights provided in this Declaration of Trust, the By-Laws of the Trust and the
resolutions of the Board of Trustees. Every Holder by virtue of having become a
Holder shall be held to have expressly assented and agreed to the terms thereof.
The death of a Holder during the existence of the Trust shall not operate to
terminate the Trust, nor entitle the representative of any deceased Holder to an
accounting or to take any action in court or elsewhere against the Trust or the
Trustees, but shall entitle such representative only to the rights of said
deceased Holder under this Declaration of Trust. Ownership of Interests shall
not entitle a Holder to any title in or to the whole or any part of the Trust
Property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Interests constitute the Holders as
partners or joint venturers except as specifically provided for pursuant to
Article III herein or by resolution of the Board of Trustees. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind personally any Holder, or to call upon any Holder for the payment
of any sum of money or assessment whatsoever other than such as the Holder may
at any time agree to pay.
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Section 3.7. Actions Affecting Series. Subject to the right of
Holders, if any to vote pursuant to Section 7.1, the Trustees shall have full
power and authority, in their sole discretion without obtaining any prior
authorization or vote of the Holders of any Series to fix or change such
preferences, voting powers, rights and privileges of any Series, as the Trustees
may from time to time determine, including any change that may adversely affect
a Holder; to divide or combine the Interests of any Series into a greater or
lesser number; to classify into one or more Series; and to take such other
action with respect to the Interests as the Trustees may deem desirable. A
Series may issue any number of Interests but need not issue any Interests. At
any time that there are no outstanding Interests of any particular Series
previously established and designated, the Trustees may abolish that Series and
the establishment or and designation thereof.
Section 3.8. Series Established as a Partnership. Each Series of the
Trust is intended to be classified as a partnership for federal and state income
tax purposes. A Book Capital Account shall be established for each Holder of
Interests of a Series, and shall be adjusted from time to time in accordance
with Section 8.1 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 4.1. Number. The number of Trustees constituting the Board
of Trustees shall be fixed from time to time by a written instrument signed, or
by resolution approved at a duly constituted meeting, by a majority of the Board
of Trustees, provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15).
Section 4.2. Election and Tenure. Subject to the requirements of
Section 16(a) of the 1940 Act, the Board of Trustees, by action of a majority of
the then Trustees at a duly constituted meeting, may fill vacancies in the Board
of Trustees and remove Trustees with or without cause. Each Trustee shall serve
during the continued lifetime of the Trust until he or she dies, resigns, is
declared bankrupt or incompetent by a court of competent jurisdiction, or is
removed. Any Trustee may resign at any time by written instrument signed by him
and delivered to any officer of the Trust or to a meeting of the Trustees. Such
resignation shall be effective upon receipt unless specified to be effective at
some other time. Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall have any right
to any compensation for any period following his or her resignation or removal,
or any right to damages or other payment on account of such removal. Any Trustee
may be removed at any meeting of Holders by a vote of Holders owning in the
aggregate a two-thirds percentage interest of the Trust, which percentage
interest in such case shall be the ratio of the Book Capital Account of such
Holders to the total of the Book Capital Accounts of all Holders of all Series
of the Trust. A meeting of Holders for the purpose of electing or removing one
or more Trustees may be called (i) by the Trustees upon their own vote, or (ii)
upon the demand of Holders owning a percentage interest of 10% or more of the
Trust in the aggregate, which percentage interest in such case shall be the
ratio of the Book Capital Account of such Holders to the total of the Book
Capital Accounts of all Holders of all Series of the Trust.
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Section 4.3. Effect of Death, Resignation, etc. of a Trustee. The
death, declination, resignation, retirement, removal, or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration of Trust.
Whenever a vacancy in the Board of Trustees shall occur, until such vacancy is
filled as provided in Section 4.2, the Trustees in office, regardless of their
number, shall have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Declaration of Trust.
Section 4.4. Trustee Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust. They may fix the amount of
their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Trust.
ARTICLE V
POWER OF THE TRUSTEES
Section 5.1. Management of the Trust. The Trustees shall have
exclusive and absolute control over the Trust Property and over the business of
the Trust to the extent as if the Trustees were the sole owners of the Trust
Property and business in their own right, but with such powers of delegations as
may be permitted by this Declaration of Trust. The Trustees shall have power to
conduct the business of the Trust and carry on its operations in any and all of
its branches and maintain offices both within and without the State of Delaware,
in any and all states of the United States America, in the District of Columbia,
in any and all commonwealths, territories, dependencies, colonies, or possession
of the United Sates of America, and in any and all foreign jurisdictions and to
do all such other things and execute any and all such instruments that they may
consider desirable, necessary or appropriate in order to promote the interests
of the Trust although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Trustees
in good faith shall be conclusive . In construing the provisions of this
Agreement, the presumption shall be in favor of a grant of power to the Trustees
and unless otherwise specified herein or required by the 1940 Act or other
applicable law, any action by the Board of Trustees shall be deemed effective if
approved or taken by a majority of the Trustees then in office or a majority of
any duly constituted committee of Trustees. The enumeration of any specific
power in this Declaration of Trust shall not be construed as limiting the
aforesaid power. The powers of the Trustees may be exercised without order of or
resort to any court or other authority.
Section 5.2. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Trustees, or any committee
thereof, may be taken without a meeting if all members of the Board of Trustees
or committee (as the case may be) consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board of Trustees,
or committee, except as otherwise provided in the 1940 Act.
Section 5.3. Powers of the Trustees. Without limiting the provisions
of Section 5.1, the Trust shall have power and authority:
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5.3.1. To operate as, and to carry on the business of, an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations;
5.3.2. To invest and reinvest cash and cash items, to hold cash
uninvested, and to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, write
options on, lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of all types of securities, futures contracts and
options thereon, and forward currency contracts of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any kind,
issued, created, guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political subdivision of
the U.S. Government or any foreign government, or any international
instrumentality or organization, or by any bank or savings institution, or by
any corporation or organization organized under the laws of the United States or
of any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, futures contracts and options thereon, and forward currency
contracts, to change the investments of the assets of the Trust; and to exercise
any and all rights, powers, and privileges of ownership or interest in respect
of any and all such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments;
5.3.3. To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series;
5.3.4. To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the Trustees
shall deem proper, granting to such person or persons such power and discretion
with relation to securities or property as the Trustees shall deem proper;
5.3.5. To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
5.3.6. To hold any security or property in a form not indicating
that it is Trust Property, whether in bearer, book entry, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize the custodian
or a subcustodian or a nominee or nominees to deposit the same in a securities
depository, subject in each case to the applicable provisions of the 1940 Act;
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5.3.7. To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
5.3.8. To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
5.3.9. To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any matter in
controversy, including but not limited to claims for taxes;
5.3.10. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
5.3.11. To borrow funds or other property in the name of the
Trust or Series exclusively for Trust purposes;
5.3.12. To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
5.3.13. Subject to Article IX, to purchase and pay for
entirely out of Trust Property such insurance as the Trustees may deem
necessary, desirable or appropriate for the conduct of the business, including,
without limitation, insurance policies insuring the assets of the Trust or
payment of distributions and principal on its Series investments, and insurance
policies insuring the Holders, Trustees, officers, employees, agents, Investment
Manager, principal underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature arising by
reason of holding Interests, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or omitted by
any such Person as Trustee, officer, employee, agent, Investment Manager,
Principal Underwriter, or independent contractor, including any action taken or
omitted that may be determined to constitute negligence;
5.3.14. Subject to the provisions of Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust to a
particular Series or to apportion the same between or among two or more Series,
provided that any liabilities or expenses incurred by a particular Series shall
be payable solely out of the assets of that Series;
5.3.15. To adopt, establish and carry out pension,
profit-sharing, Interest bonus, Interest 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
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5.3.16. To adopt, amend and repeal By-Laws not inconsistent
with this Declaration of Trust providing for the regulation and management of
the affairs of the Trust;
5.3.17. To elect and remove such officers and appoint and
terminate such agents as they consider appropriate;
5.3.18. To appoint from their own and establish and terminate
one or more committees consisting of two or more Trustees who may exercise the
powers and authority of the Board of Trustees to the extent that the Trustees
determine and to adopt a committee charter providing for such responsibilities;
5.3.19. To employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities or with a Federal Reserve Bank,
5.3.20. To retain a transfer agent or a Holder servicing
agent, or both;
5.3.21. To provide for the issuance and distribution of
Interests by the Trust directly or through one or more Principal Underwriters or
otherwise;
5.3.22. To set record dates for the determination of Holders
with respect to various matters; declare and pay distributions to Holders of
each Series from the assets of such Series;
5.3.23. To establish from time to time separate and distinct
Series with separately defined investment objectives and policies and distinct
investment purpose in accordance with Article III hereof;
5.3.24. To interpret the investment policies, practices or
limitations of any Series;
5.3.25. To establish, from time to time, a minimum investment
for Holders in the Trust or in one or more Series, or to require the redemption
of the Interests of any Holder whose investment is less than such minimum upon
giving notice to such Holder or in accordance with Section 8.5;
5.3.26. To delegate such authority as they consider desirable
to any officer of the Trust, to any committee of the Trustees and to any agent
or employee of the Trust or to any such custodian, transfer or servicing agents,
Investment Manager or Principal Underwriter.
5.3.27. In general to carry on any other business in
connection with or incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power set forth herein,
either alone or in association with others, and to do every other act or thing
incidental or appurtenant to or arising from the businesses, purposes, objects
or powers set forth above.
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The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
Section 5.4. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or Series, or partly out of the principal and partly out of income, and to
charge or allocate the same to, between or among such one or more of the Series,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust or Series, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
Investment Manager, Principal Underwriter, auditors, counsel, custodian,
transfer agent, servicing agents, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
Section 5.5. Ownership of Assets of the Trust. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in the
name of the Trust, or in the name of any other Person as nominee, on such terms
as the Trustees may determine. Upon the resignation, incompetency, bankruptcy,
removal, or death of a Trustee he or she shall automatically cease to have any
such title in any of the Trust Property, and the title of such Trustee in the
Trust Property shall vest automatically in the remaining Trustees. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered. The Trustees may determine that the Trust or
the Trustees, acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by the Trust,
whether domestic or foreign.
Section 5.6. Issuance and Repurchase of Interests. The Trustees
shall have the power to issue, sell, transfer, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, or other wise deal in
Interests and, subject to applicable law and the provisions set forth in Section
3.3 hereof, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Interests any funds or property of the Trust, or
any assets belonging to the particular Series, with respect to which such
Interests are issued.
Section 5.7. Power of Board of Trustees to Change Provisions
Relating to Interests. Notwithstanding any other provision of this Declaration
of Trust to the contrary, and without limiting the power of the Board of
Trustees to amend the Declaration of Trust, the Board of Trustees shall have the
power to amend this Declaration of Trust, at any time and from time to time, in
such manner as the Board of Trustees may determine in their sole discretion,
without the need for action by any Holder, so as to add to, delete, replace or
otherwise modify any provisions relating to the Interests contained in this
Declaration of Trust, provided that before adopting any such amendment without
approval of the Holders, the Board of Trustees shall determine that it is
consistent with the fair and equitable treatment of all Holders or that approval
of the Holders is not required by the 1940 Act or other applicable law. If
Interests have been issued, approval of the Holders shall be required to adopt
any amendments to this Declaration of Trust which would
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adversely affect to a material degree the rights and preferences of the
Interests of any Series or to increase or decrease the par value of the
Interests of any Series.
ARTICLE VI
SERVICE CONTRACTS
Section 6.1. Investment Manager. The Trustees may, at any time and
from time to time, contract for exclusive or nonexclusive advisory, management
and/or administrative services for the Trust or for any Series with any Person;
and any such contract may contain such other terms as the Trustees may
determine, including without limitation, authority for the Investment Manager to
determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held, sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes in
the Trust's investments, and such other responsibilities as may specifically be
delegated to such Person.
The Trustees may authorize the Investment Manager to employ, from
time to time, one or more sub-advisers to perform such of the acts and services
of the Investment Manager, and upon such terms and conditions, as may be agreed
among the Trustees, the Investment Manager and sub-adviser. Any reference in
this Declaration of Trust to the Investment Manager shall be deemed to include
such sub-advisers, unless the context otherwise requires.
Section 6.2. Principal Underwriter. The Trustees may also, at any
time and from time to time, contract with any Persons, appointing such Persons
exclusive or nonexclusive distributor or Principal Underwriter for the Interests
of one or more of the Series or other securities to be issued by the Trust.
Every such contract may contain such other terms as the Trustees may determine.
Section 6.3. Other Service Contracts. The Trustees are also
empowered, at any time and from time to time, to contract with any Persons,
appointing such Person(s) to serve as custodian(s), transfer agent and/or Holder
servicing agent for the Trust or one or more of its Series. Every such contract
shall comply with such terms as may be required by the Trustees. The Trustees
are further empowered, at any time and from time to time, to contract with any
Persons to provide such other services to the Trust or one or more of the
Series, as the Trustees determine to be in the best interests of the Trust and
the applicable Series.
Section 6.4. Validity of Contracts. The fact that:
(a) any of the Holders, Trustees, or officers of the
Trust is a Holder, director, officer, partner, trustee, employee, Manager,
adviser, Principal Underwriter, distributor, or affiliate or agent of or for any
Person with which an advisory, management or administration contract, or
Principal Underwriter's or distributor's contract, or transfer, Holder servicing
or other type of service contract may be made, or
(b) any Person with which an advisory, management or
administration contract or Principal Underwriter's or distributor's contract, or
transfer, Holder servicing or other type of service contract may be made also
has an advisory, management or
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administration contract, or Principal Underwriter's or distributor's contract,
or transfer, Holder servicing or other service contract, or has other business
or interests with any other Person, shall not affect the validity of any such
contract or disqualify any Holder, Trustee or officer of the Trust from voting
upon or executing the same, or create any liability or accountability to the
Trust or its Holders, provided approval of each such contract is made pursuant
to the applicable requirements of the 1940 Act.
ARTICLE VII
HOLDERS' VOTING POWERS AND MEETINGS
Section 7.1. Voting Powers. Subject to the provisions of Section
3.3.4, the Holders shall have right to vote only (i) for removal of Trustees as
provided in Section 4.2 hereof, and (ii) with respect to such additional matters
relating to the Trust as may be required by the applicable provisions of the
1940 Act, including Section 16(a) thereof, (iii) with respect to matters
specified in Section 10.3, and (iv) on such other matters as the Trustees may
consider necessary or desirable. Each Holder shall be entitled to a
proportionate vote as provided in Section 3.3.4 hereof. There shall be no
cumulative voting in the election of Trustees. Interests may be voted in person
or by proxy. A proxy purporting to be executed by or on behalf of a Holder shall
be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Section 7.2. Voting Power and Meetings. Meetings of the Holders may
be called by the Trustees for the purposes described in Section 7.1. A meeting
of Holders may be held at any place designated by the Trustees. Written notice
of any meeting of Holders shall be given or caused to be given by the Trustees
by delivering personally or mailing such notice at least seven (7) days before
such meeting, postage prepaid, stating the time and place of the meeting, to
each Holder at the Holder's address as it appears on the records of the Trust.
Whenever notice of a meeting is required to be given to a Holder under this
Declaration of Trust, a written waiver thereof, executed before or after the
meeting by such Holder or his or her attorney thereunto authorized and filed
with the records of the meeting, or actual attendance at the meeting of Holders
in person or by proxy, shall be deemed equivalent to such notice.
Section 7.3. Quorum and Required Vote. Except when a larger quorum
is required by the applicable provisions of the 1940 Act, a quorum at a meeting
shall consist of Holders of forty percent (40%) of the percentage interests of
Holders entitled to vote on a matter. Any meeting of Holders may be adjourned
from time to time by a vote of a Holders of a majority of the percentage
interests cast upon the question of adjourning a meeting to another date and
time, whether or not a quorum is present, and the meeting may be held as
adjourned within a reasonable time after the date set for the original meeting
without further notice. Subject to the provisions of Section 3.3.4 and the
applicable provisions of the 1940 Act, when a quorum is present at any meeting,
a vote of a majority of the percentage interests of Holders representing the
quorum shall decide any questions except only a plurality vote shall be
necessary to elect Trustees.
Section 7.4. Action by Written Consent. Any action taken by Holders
may be taken without a meeting if Holders holding a majority of the percentage
interests entitled to vote
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on the matter (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust or by the By-Laws) and holding a
majority (or such larger proportion as aforesaid) of the percentage interests of
any Series entitled to vote separately on the matter consent to the action in
writing and such written consents are filed with the records of the meetings of
Holders. Such consent shall be treated for all purposes as a vote taken at a
meeting of Holders.
Section 7.5. Record Dates. For the purpose of determining the
Holders who are entitled to vote or act at any meeting or any adjournment
thereof, the Trustees may fix a time, which shall be not more than ninety (90)
days before the date of any meeting of Holders, as the record date for
determining the Holders having the right to notice of and to vote at such
meeting and any adjournment thereof, and in such case only Holders of record on
such record date shall have such right, notwithstanding any transfer of
Interests on the books of the Trust after the record date. For the purpose of
determining the Holders who are entitled to receive payment of any distribution,
the Trustees may fix a date, which shall be before the date for the payment of
such distribution, as the record date for determining the Holders having the
right to receive such distribution. Nothing in this Section shall be construed
as precluding the Trustees from setting different record dates for different
Series.
ARTICLE VIII
CAPITAL ACCOUNTS, NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS
Section 8.1. Book Capital Accounts.
8.1.1. A capital account shall be established for each Holder
on the books of the Series in which an Interest is owned ("Book Capital
Account"). The Book Capital Accounts of Holders with respect to each Series
shall be determined and adjusted on such days and at such time or times as the
Trustees may determine, consistent with the requirements of the 1940 Act, and in
accordance with Section 704(b) of the Code and Treasury Regulations promulgated
thereunder (and any successor provision thereto).
8.1.2. All income, gains and losses of each Series shall be
allocated among the Holders of Interests in such Series, in accordance with
their respective Percentage Interests.
8.1.3. Notwithstanding the foregoing, in the event that the
Trustees determine (after taking into account any distributions to be made to
such Holder during the taxable year) that any allocation would produce a deficit
in the Book Capital Account of such Holder, the portion of such allocation that
would create a deficit shall instead be allocated pro rata to the book capital
accounts of the remaining Holders (subject to the same limitation).
Section 8.2. Allocations for Tax Purposes. The Trustees shall
allocate items of taxable income, gain, loss and deduction with respect to each
Series to Holders of the Interests in such Series in accordance with their
Percentage Interests, except that (1) where the book value of assets differs
from their adjusted tax basis, the Trustees shall make allocations for tax
purposes using any permissible method under Section 704(c) of the Code and the
Treasury Regulations
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thereunder, and (2) the Trustees shall make allocations for tax purposes to take
account of the varying interests of the Holders during a taxable year using any
permissible method under Section 706 of the Code and the Treasury Regulations
thereunder.
Section 8.3. Determination of Net Asset Value, Net Income, and
Distributions. The Trustees, in their absolute discretion, may prescribe and
shall set forth in the By-laws or in a duly adopted resolution of the Trustees
such bases and time for determining the net asset value of the Interests of any
Series and the net income attributable to the Interests of any Series and the
declaration and payment of distributions on the Interests of any Series, as they
may deem necessary or desirable, provided, however, that any distribution made
with respect to an Interest in a Series shall not exceed the Book Capital
Account of the Holder in such Series.
Section 8.4. Redemptions and Repurchases. The Trust shall purchase
such Interests as are offered by any Holder for redemption, upon the
presentation of a proper instrument of transfer together with a request directed
to the Trust or a Person designated by the Trust that the Trust redeem such
Interests or in accordance with such procedures for redemption as the Trustees
may from time to time authorize; and the Trust will pay therefor the net asset
value thereof, in accordance with the By-Laws, the applicable provisions of the
1940 Act or as further provided by resolution of the Trustees, and an
appropriate adjustment shall be made to such Holder's Book Capital Account.
Payment for said Interests shall be made by the Trust to the Holder within seven
days after the date on which the request for redemption is received in proper
form. The obligation set forth in this Section 8.4 is subject to the provision
that in the event that any time the New York Stock Exchange (the "Exchange") is
closed for other than weekends or holidays, or if permitted by the Rules of the
Commission during periods when trading on the Exchange is restricted or during
any emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the net
assets held with respect to such Series or during any other period permitted by
order of the Commission for the protection of investors, such obligations may be
suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid in cash or
wholly or partly in kind in accordance with Rule l8f-1 under the 1940 Act if the
Trustees determine that such payment is advisable in the interest of the
remaining Holders of the Series of which the Interests are being redeemed.
Subject to the foregoing, the selection and quantity of securities or other
property so paid or delivered as all or part of the redemption price shall be
determined by or under authority of the Trustees. In no case shall the Trust be
liable for any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in kind.
Section 8.5. Redemptions at the Option of the Trust. The Trust shall
have the right, at its option, upon sixty (60) days notice to the affected
Holder at any time to redeem Interests of such Holder at the net asset value
thereof as described in Section 8.4 herein or as further provided by resolution
of Trustees: (i) if at such time such Holder owns Interests of any Series having
an aggregate net asset value of less than a minimum value determined from time
to time by the Trustees; or (ii) to the extent that such Holder owns Interests
of a Series equal to or in excess of a maximum percentage of the outstanding
Interests of such Series determined from time to time by the Trustees; or (iii)
to the extent that such Holder owns Interests equal to or in
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excess of a maximum percentage, determined from time to time by the Trustees, of
the outstanding Interests of the Trust.
The Trustees may also, at their option, call for the redemption of
Interests of any Holder or may refuse to transfer or issue Interests to any
Person to the extent that the same is necessary to comply with applicable law or
advisable to further the purpose for which the Trust was established to the
extent permitted by law, the Trustees may retain the proceeds of any redemption
of Interests required by them for payments of amounts due and owing by a Holder
of the Trust or any Series.
Section 8.6. Transfer of Interests. Except to the extent that the
Trustees have provided by resolution that the Interests of a Series are
non-transferrable, the Trust shall transfer Interests held of record by any
Person to any other Person upon receipt by the Trust or a Person designated by
the Trust of a written request therefore in such form and pursuant to such
procedures as may be approved by the Trustees.
ARTICLE IX
LIMITATION OF LIABILITY
Section 9.1. Indemnification and Limitation of Liability. The
Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or Principal Underwriter of
the Trust, nor shall any Trustee be responsible for the act or omission of any
other Trustee, and, subject to the provisions of the Bylaws, the Trust out of
its assets may indemnify and hold harmless each and every Trustee and officer of
the Trust from and against any and all claims, demands, costs, losses, expenses,
and damages whatsoever arising out of or related to such Trustee's performance
of his or her duties as a Trustee or officer of the Trust; provided that nothing
herein contained shall indemnify, hold harmless or protect any Trustee or
officer from or against any liability to the Trust or any Holder to which he or
she would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office.
Every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever issued, executed or done by or on behalf
of the Trust or the Trustees or any of them in connection with the Trust shall
be conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 9.2. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers hereunder shall be binding
upon everyone interested in or dealing with the Trust. A Trustee shall be liable
to the Trust and to any Holder solely for his or her own wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice nor for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
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Section 9.3. Liability of Third Persons Dealing with Trustees. No
Person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
Section 9.4. Insurance. The Trustees shall be entitled and empowered
to the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust.
ARTICLE X
TERMINATION AND MERGER
Section 10.1. Termination of Trust or Series.
(a) Unless terminated as provided herein, the Trust
shall continue without limitation of time. The Trust may be terminated at any
time by the Trustees upon sixty (60) days prior written notice to the Holders.
Any Series may be terminated at any time by the Trustees upon sixty (60) days
prior written notice to the Holders of that Series.
(b) Upon termination of the Trust (or any Series, as the
case may be), after paying or otherwise providing for all charges, taxes,
expenses and liabilities held, severally, with respect to each Series (or the
applicable Series, as the case may be), whether due or accrued or anticipated as
may be determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining assets
held, severally, with respect to each Series (or the applicable Series, as the
case may be), to distributable form in cash or Interests or other securities,
and any combination thereof, and distribute the proceeds held with respect to
each Series (or the applicable Series, as the case may be), to the Holders of
Interests of such Series, in accordance with the positive Book Capital Account
balances of the Holders.
Section 10.2. Merger and Consolidation. The Trustees may cause (i)
the Trust or one or more of its Series to the extent consistent with applicable
law to be merged into or consolidated with another Trust, Series or Person, (ii)
the Interests of the Trust or any Series to be converted into beneficial
interests in another business trust (or Series thereof), (iii) the Interests to
be exchanged for assets or property under or pursuant to any state or federal
statute to the extent permitted by law or (iv) a sale of assets of the Trust or
one or more of its Series. Such merger or consolidation, Interest conversion,
Interest exchange or sale of assets must be authorized by vote as provided in
Article VII herein; provided that in all respects not governed by statute or
applicable law, the Trustees shall have power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, Interest exchange,
merger or consolidation including the power to create one or more separate
business trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion of
Interests of the Trust or any Series into beneficial interests in such separate
business trust or trusts (or Series thereof).
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ARTICLE XI
MISCELLANEOUS
Section 11.1. Amendments. The Trustees may amend this Declaration of
Trust by making an amendment to this Agreement or to Schedule A hereto, an
agreement supplemental hereto, or by amending and restating the trust
instrument. Any such amendment having been approved by a majority of the
Trustees then holding office shall become effective unless otherwise provided by
such Trustees upon execution by a duly authorized officer of the Trust. The
Certificate of Trust of the Trust may be restated and/or amended by a similar
procedure, and any such restatement and/or amendment shall be effective
immediately upon filing with the Office of the Secretary of State of the State
of Delaware or upon such future date as may be stated therein.
Section 11.2. Filing of Copies. The original or a copy of this
instrument and of each restatement and/or amendment hereto shall be kept at the
office of the Trust where it may be inspected by any Holder. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such restatements and/or amendments have been made and as to any matters
in connection with the Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by an officer of the Trust to be a
copy of this instrument or of any such restatements and/or amendments.
Section 11.3. References and Headings. In this instrument and in any
such restatements and/or amendment, references to this instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable.
Section 11.4. Applicable Law. This Declaration of Trust is created
under and is to be governed by and construed and administered according to the
laws of the State of Delaware and the Delaware Act. The Trust shall be a
Delaware business trust pursuant to such act, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a business trust.
Section 11.5. Provisions in Conflict with Law or Regulations.
11.5.1. The provisions of the Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of the Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
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11.5.2. If any provision of the Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 11.6. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Act, and thereby to create
only the relationship of trustee and beneficial owners within the meaning of
such Act between the Trustees and each Holder. Except that each Series is
intended to be classified as a partnership for federal and state income tax
purposes, it is not the intention of the Trustees to create a general
partnership, limited partnership, joint stock association, corporation,
bailment, joint venture, or any form of legal relationship other than a business
trust pursuant to such Act, and nothing in this Declaration of Trust shall be
construed to make the Holders, either by themselves or with the Trustees,
partners or members of a joint stock association.
Section 11.7. Counterparts. This instrument may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which, when taken together, shall be deemed a single document.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Trustees named below do hereby make and
enter into this Declaration of Trust of WT Investment Trust I as of March 15,
2002.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxx, Xx.
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Xxxxx Xxxxx, Xx.
/s/ Xxxxxxx X. Xxxxx, XX
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Xxxxxxx X. Xxxxx, XX
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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SCHEDULE A
Schedule of Series
Balanced Series
Large Cap Value Series
Mid Cap Value Series
Mid Cap Series
Science and Technology Series
Socially Responsible Series
Intermediate Bond Series
International Multi-Manger Series
Large Cap Core Series
Large Cap Growth Series
Municipal Bond Series
Premier Money Market Series
Prime Money Market Series
Short/Intermediate Bond Series
Small Cap Core Series
Small Cap Growth Series
Small Cap Value Series
Tax-Exempt Series
U.S. Government Series
WT Balanced Series
WT Large Cap Growth Series
