WISDOMTREE TRUST
TRUST INSTRUMENT
Dated: December 15, 2005
Table of Contents
ARTICLE I NAME; FORMATION; DEFINITIONS.........................................1
Section 1. NAME...........................................................1
Section 2. FORMATION OF THE TRUST.........................................1
Section 3. DEFINITIONS....................................................1
ARTICLE II THE TRUSTEES........................................................3
Section 1. MANAGEMENT OF THE TRUST........................................3
Section 2. INITIAL TRUSTEES; ELECTION AND NUMBER OF TRUSTEES..............3
Section 3. TERM OF OFFICE OF TRUSTEES.....................................3
Section 4. VACANCIES; APPOINTMENT OF TRUSTEES.............................3
Section 5. TEMPORARY VACANCY OR ABSENCE...................................4
Section 6. CHAIRMAN.......................................................4
Section 7. ACTION BY THE TRUSTEES.........................................4
Section 8. OWNERSHIP OF TRUST PROPERTY....................................4
Section 9. EFFECT OF TRUSTEES NOT SERVING.................................5
Section 10. TRUSTEES AND OTHERS AS SHAREHOLDERS............................5
ARTICLE III POWERS OF THE TRUSTEES.............................................5
Section 1. POWERS.........................................................5
Section 2. CERTAIN TRANSACTIONS...........................................7
ARTICLE IV SERIES; CLASSES; SHARES.............................................8
Section 1. ESTABLISHMENT OF SERIES AND CLASSES............................8
Section 2. SHARES.........................................................8
Section 3. INVESTMENTS IN THE TRUST.......................................8
Section 4. ASSETS AND LIABILITIES OF SERIES...............................9
Section 5. OWNERSHIP AND TRANSFER OF SHARES..............................10
Section 6. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY.........10
ARTICLE V DISTRIBUTIONS AND REDEMPTIONS.......................................10
Section 1. DISTRIBUTIONS.................................................10
Section 2. REDEMPTIONS...................................................11
Section 3. DETERMINATION OF NET ASSET VALUE PER SHARE....................11
Section 4. SUSPENSION OF RIGHT OF REDEMPTION.............................11
ARTICLE VI SHAREHOLDERS' VOTING POWERS AND MEETINGS...........................12
Section 1. VOTING POWERS.................................................12
Section 2. MEETINGS OF SHAREHOLDERS......................................12
Section 3. QUORUM; REQUIRED VOTE.........................................12
ARTICLE VII CONTRACTS WITH SERVICE PROVIDERS..................................13
Section 1. INVESTMENT ADVISORY CONTRACTS.................................13
Section 2. DISTRIBUTION CONTRACTS........................................13
Section 3. CUSTODY AGREEMENTS............................................13
Section 4. OTHER CONTRACTS...............................................13
Section 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS...................13
ARTICLE VIII EXPENSES OF THE TRUST AND SERIES.................................14
ARTICLE IX LIMITATION OF LIABILITY AND INDEMNIFICATION........................14
Section 1. LIMITATION OF LIABILITY.......................................14
Section 2. INDEMNIFICATION...............................................15
Section 3. INDEMNIFICATION OF SHAREHOLDERS...............................16
ARTICLE X MISCELLANEOUS.......................................................16
Section 1. TRUST NOT A PARTNERSHIP.......................................16
Section 2. TRUSTEE ACTION; EXPERT ADVICE; NO BOND OR SURETY..............17
Section 3. RECORD DATES..................................................17
Section 4. TERMINATION OF THE TRUST......................................17
Section 5. REORGANIZATION................................................18
Section 6. TRUST INSTRUMENT..............................................19
Section 7. APPLICABLE LAW................................................19
Section 8. AMENDMENTS....................................................19
Section 9. FISCAL YEAR...................................................20
Section 10. SEVERABILITY..................................................20
Section 11. INTERPRETATION................................................20
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WISDOMTREE TRUST
TRUST INSTRUMENT
This TRUST INSTRUMENT is made as of December 15, 2005, by the Trustees
named hereunder for the purpose of establishing a statutory trust, in accordance
with the provisions hereinafter set forth, for the investment and reinvestment
of funds contributed thereto by investors. The Trustees declare that all cash,
securities, and other property that the Trust now possesses or may hereafter
acquire from time to time in any manner shall be held and managed IN TRUST
pursuant to this Trust Instrument.
ARTICLE I
NAME; FORMATION; DEFINITIONS
Section 1. NAME. The Trust created hereby shall be known as "WisdomTree
Trust," and the Trustees shall conduct its business, and on its behalf make and
execute contracts and other instruments and sue and be sued, under that name or
any other name they from time to time determine in their discretion. Any name
change shall become effective on the execution by a majority of the Trustees of
an instrument setting forth the new name and the filing of a certificate of
amendment pursuant to Section 3810(b) of the Delaware Act. Any such instrument
shall not require the approval of the Shareholders but shall have the status of
an amendment to this Trust Instrument.
Section 2. FORMATION OF THE TRUST. The Trust was formed by the Trustees'
filing the Trust's certificate of trust with the Office of the Secretary of
State of the State of Delaware in accordance with section 3810 of the Delaware
Act. It is the intention of the parties hereto that the Trust created thereby
and governed hereby constitutes a statutory trust under the Delaware Act and
that this Trust Instrument constitutes its governing instrument.
Section 3. DEFINITIONS. Each Unless otherwise provided or required by the
context, wherever they are used herein the following terms have the respective
meanings assigned to them below:
(a) "Administrator" means any party furnishing services to the Trust
pursuant to any administration agreement described in Article VII, Section 4;
(b) "Assets belonging to" a Series has the meaning set forth in Article
IV, Section 4;
(c) "By-laws" means the Trust's By-laws adopted by the Trustees, as
amended and in effect from time to time;
(d) "Class" means a class of Shares of a Series established pursuant to
Article IV;
(e) "Commission" means the Securities and Exchange Commission;
(f) "Covered Person" means a Person so defined in Article IX, Section 2;
(g) "Creation Unit" has the meaning set forth in Article IV, Section 3;
(h) "Custodian" means any party furnishing services to the Trust pursuant
to any agreement described in Article VII, Section 3;
(i) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code,
entitled "Treatment of Delaware Statutory Trusts," as amended from time to time;
(j) "Fundamental Policies" means the investment policies and restrictions
of the Trust that are set forth and designated as fundamental policies in the
registration statement the trust files with the Commission under the 1940 Act,
as it may be amended or supplemented from time to time;
(k) "Interested Person" has the meaning provided in Section 2(a)(19) of
the 1940 Act;
(l) "Investment Adviser" means any party furnishing services to the Trust
pursuant to any investment advisory contract described in Article VII, Section
1;
(m) "Liabilities" means liabilities, debts, obligations, expenses, costs,
charges, and reserves;
(n) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding Voting Securities" as defined in Section 2(a)(42) of the 1940 Act;
(o) "Net Asset Value per Share" means, with respect to each Series at any
time, the value of the Assets belonging to that Series less the Liabilities
chargeable to that Series pursuant to Article IV, Section 4, divided by the
number of Outstanding Shares, all determined as provided in Article V, Section
3;
(p) "Outstanding Shares" means Shares shown in the books of the Trust or
its transfer agent as then issued and outstanding but does not include Shares
that the Trust has repurchased or redeemed and that it holds in its treasury;
(q) "Person" means an individual, corporation, partnership, limited
liability company, trust, association, joint venture, or other entity, whether
or not a legal entity, or a government or agency or political subdivision
thereof;
(r) "Series" means a series of Shares established pursuant to Article IV;
(s) "Shareholder" means a record owner of Outstanding Shares;
(t) "Shares" means 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);
(u) "Tax Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor statute;
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(v) "Trust" means "WisdomTree Trust," the trust established hereby;
(w) "Trust Property" means any and all property, real or personal,
tangible or intangible, that is owned or held by or for the Trust or any Series
or the Trustees on behalf of the Trust or any Series;
(x) "Trustee" means an individual who has signed this Trust Instrument, so
long as he or she continue in office in accordance with the terms hereof, and
each other individual who may from time to time be duly qualified and serving as
a Trustee in accordance with Article II, in all cases in his or her capacities
as Trustee hereunder;
(y) "1940 Act" means the Investment Company Act of 1940, as amended from
time to time.
Whenever reference is made herein to the Trustees' "discretion," it shall mean
their "sole and absolute discretion."
ARTICLE II
THE TRUSTEES
Section 1. MANAGEMENT OF THE TRUST. The Trust's business and affairs 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 the Trustees make in good
faith as to what is in the Trust's interests shall be conclusive.
Section 2. INITIAL TRUSTEES; ELECTION AND NUMBER OF TRUSTEES. The initial
Trustees shall be the individuals initially signing this Trust Instrument. The
number of Trustees (other than the initial Trustees) shall be fixed from time to
time by a majority of the Trustees; provided, that there shall be at least two
Trustees. The Shareholders shall elect the Trustees (other than the initial
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 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 on such delivery or a later date
specified therein, (b) any Trustee may be removed with or without cause at any,
time by a written instrument signed by at least two-thirds of the other
Trustees, specifying the effective date of removal, (c) 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, 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.
Section 4. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy exists
among the Trustees, regardless of the reason for such vacancy, the remaining
Trustees shall appoint any individual they determine in their discretion to fill
that vacancy, consistent with
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the limitations under the 1940 Act, including Section 16(a) thereof. 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 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 shall be deemed a Trustee hereunder.
Section 5. TEMPORARY VACANCY OR ABSENCE. Until a vacancy among the
Trustees 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 exceeding six months at any one time 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 may, without limitation, be the chief executive, financial, and/or
accounting officer of the Trust.
Section 7. ACTION BY THE TRUSTEES. The Trustees shall act by majority vote
at a meeting duly called (including at a telephonic meeting, unless the 1940 Act
requires that a particular action be taken only at a meeting of 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. A majority 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.
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 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 8. OWNERSHIP OF TRUST PROPERTY. The Trust Property shall be held
separate and apart from any assets now or hereafter held by the Trustees or any
successor Trustees in any capacity other than as Trustee hereunder. All of the
Trust Property and legal title thereto shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the name of the
Trust or in the name of any Person (including a Custodian) 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
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right of partition or possession thereof, but each Shareholder shall have, as
provided in Article IV, a proportionate undivided beneficial interest in the
Trust or Series represented by Shares.
Section 9. 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 Trust Instrument.
Section 10. TRUSTEES AND OTHERS AS SHAREHOLDERS. Subject to any
restrictions in the By-laws, 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. 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 III
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 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 express limitation herein or in the By-laws or resolutions of the
Trust, and any applicable Fundamental Policies, 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 and securities of any
kind, and without regard to whether they may mature before the possible
termination of the Trust; and to invest all or any part of its cash and other
property in securities issued by an investment company registered under the 1940
Act or series thereof, subject to the provisions of the 1940 Act;
(b) To operate as and carry on the business of an investment company
registered under the 1940 Act and exercise all the powers necessary and proper
to conduct such a business;
(c) To adopt By-laws not inconsistent with this Trust Instrument providing
for the conduct of the Trust business and to alter, amend and repeal them;
(d) To elect and remove such officers and appoint and terminate such
agents as they deem appropriate;
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(e) To employ as Custodian, subject to any provisions herein or in the
By-laws, 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;
(f) To retain one or more transfer agents and Shareholder servicing
agents, or both;
(g) To provide for the distribution of Shares either through a principal
underwriter (as defined in Section 2(a)(29) of the 1940 Act) as provided herein
or by the Trust itself, or both, or pursuant to a distribution plan of any kind;
(h) To set record dates in the manner provided for herein or in the
By-laws;
(i) To delegate such authority as they consider desirable to any officers
of the Trust and to any agent, independent contractor, manager, Investment
Adviser, Custodian, or underwriter;
(j) To sell or exchange any or all of the assets of the Trust, subject to
Article X, Section 4;
(k) 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;
(1) To exercise powers and rights of subscription or otherwise that in any
manner arise out of ownership of securities;
(m) To hold any security or other 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 or statutory trusts or investment companies;
(n) To establish separate and distinct Series with separately defined
investment objectives and policies, distinct investment purposes, and separate
Shares representing beneficial interests in such Series and to establish
separate Classes, all in accordance with Article IV;
(o) To the full extent permitted by Section 3804(a) of the Delaware Act,
to allocate assets and Liabilities of the Trust to a particular Series, and
Liabilities to a particular Class, or to apportion the same between or among two
or more Series or Classes, provided that any Liabilities incurred by a
particular Series or Class shall be payable solely out of the Assets belonging
to that Series or Class, respectively, as provided for in Article IV, Section 4;
(p) To consent to or participate in any plan for the 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 in the Trust;
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(q) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including claims for taxes;
(r) To make distributions of income and of capital gains to Shareholders
in the manner hereinafter provided for;
(s) To borrow money;
(t) To establish, from time to time, a minimum total investment for
Shareholders and to require the redemption of the Shares of any Shareholders
whose investment is less than such minimum on giving notice to such Shareholder;
(u) To establish committees for such purposes, with such membership, and
with such responsibilities as the Trustees may consider proper, including a
committee consisting of fewer than all of the Trustees then in office, which may
act for and bind the Trustees and the Trust with respect to the institution,
prosecution, dismissal, settlement, review, or investigation of any legal
action, suit, or proceeding, pending or threatened;
(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 IV and V, 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; and
(w) 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 powers and authorities enumerated in the preceding clauses 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 Trust Instrument, 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, distribution disbursing
agent, or Custodian or in any other capacity on customary terms.
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ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. ESTABLISHMENT OF SERIES AND CLASSES. The Trust shall consist of
one or more separate and distinct Series created and maintained in accordance
with Article III, Section 1(n), and this Article IV. 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 rights and
preferences of the Shares of each Series relative to the Shares of any other
Series. The Trustees may divide the Shares of any Series into any number of
Classes representing interests in the Assets belonging to that Series, each
Share of each such Class having an equal beneficial interest in such assets and
identical voting, distribution, liquidation, and other rights and subject to the
same terms and conditions, except that (a) expenses allocated to a Class may be
borne solely by that Class as determined by the Trustees and (b) 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 shall
hold and account for the Assets belonging thereto separately from the other
assets of the Trust or Assets belonging to any other Series. A Series may issue
any number of Shares and need not issue Shares. 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. On redemption of Shares of a Series, the redeeming
Shareholder shall be paid solely out of the Assets belonging to that Series. The
Trustees may change the name of any Series or Class in their discretion.
Section 2. SHARES. The beneficial interest in each Series shall be divided
into Shares of one or more Classes. The number of Shares of each Series and
Class shall be unlimited, and each Share shall have a par value of $0.001. All
Shares issued hereunder shall be fully paid and non-assessable. 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 discretion and without obtaining Shareholder approval, (a)
to issue Shares, in addition to then issued and outstanding Shares and Shares
held in the treasury, at such times and on such terms and conditions as they
deem appropriate, (b) to issue fractional Shares and Shares held in the Trust's
treasury, (c) 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), (d) to divide or combine the Shares of any Series or Classes into a
greater or lesser number, (e) to classify or reclassify any unissued Shares of
any Series or Classes into one or more Series or Classes, (f) to abolish any one
or more Series or Classes, (g) to issue Shares to acquire other assets
(including assets subject to, and in connection with, the assumption of
liabilities) and businesses, and (h) to take such other action with respect to
the Shares as the Trustees may deem desirable. Shares held in the Trust's
treasury shall not confer any voting rights on the Trustees and shall not be
entitled to any distributions declared with respect to the Shares.
Section 3. INVESTMENTS IN THE TRUST. The Trustees, in their discretion,
may from time to time, without a vote of the Shareholders, permit the purchase
of Shares of any Series by such Persons and on such terms as they may from time
to time authorize. At the
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Trustees' discretion, the consideration for such purchases of Shares of a
Series, subject to applicable law, may be in the form of cash and/or securities
in which that Series is authorized to invest, valued as provided in Article V,
Section 3, and the Trustees may in such manner acquire other assets (including
the acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Shares of any Series, if the Trustees so
determine, shall be issued only in aggregations of such number of those Shares
(each, a "Creation Unit") and on such days as the Trustees determine or as
determined pursuant to procedures or methods the Trustees prescribe or approve
from time to time with respect to such Series; a Series will not issue
fractional Creation Units. The Trustees shall have the unrestricted power to
alter the number of Shares constituting a Creation Unit by resolution adopted by
them, at any time. Investment in a Series shall be credited to the investing
Shareholder's account in the form of full (and, unless the Shareholder is
purchasing a Creation Unit, fractional) Shares at the Net Asset Value per Share
next determined after the investment is received or accepted, as the Trustees
determine; provided that the Trustees may, in their discretion, (a) impose a
sales charge, transaction fee, or other fee in connection with the sale of
Shares of any Series or Class, (b) issue fractional Shares, or (c) determine the
Net Asset Value per Share of the initial capital contribution for any Series.
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 and 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)
(collectively "Assets belonging to" that Series), shall be held and accounted
for separately from the other assets of the Trust and Assets belonging to every
other 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, proceeds, funds, and/or
payments that are not readily identifiable as belonging to any particular Series
shall be allocated by the Trustees between or among one or more Series as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding on the Shareholders of all Series for all purposes, and the assets,
income, earnings, profits, proceeds, funds, and payments so allocated to a
Series shall be treated for all purposes as Assets belonging to that Series. The
Assets belonging to a Series shall be so recorded on the Trust's books 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 all Liabilities
of and/or attributable to that Series, except that Liabilities allocated solely
to a particular Class shall be borne by that Class. Any Liabilities of the Trust
that are not readily identifiable as chargeable to any particular Series or
Class shall be allocated and charged by the Trustees between or among any one or
more Series or Classes in such manner as the Trustees deem fair and equitable.
Each such allocation shall be conclusive and binding on the Shareholders of all
Series and Classes for all purposes.
Without limiting the foregoing, but subject to the right of the Trustees
to allocate Liabilities as herein provided, the Liabilities incurred, contracted
for, or otherwise existing with respect to a particular Series shall be
enforceable only against the Assets belonging to that Series and not against the
assets of the Trust generally or the Assets belonging to any other Series.
Notice of this contractual limitation on Liabilities among Series may, in the
Trustees' discretion,
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be set forth in the Trust's certificate of 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 on the giving of such
notice in the certificate of trust, the provisions of Section 3804(a) of the
Delaware Act relating to limitations on Liabilities among Series (and the
statutory effect under Section 3804 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 belonging to that Series to satisfy or
enforce any Liability with respect to that Series. No Shareholder or former
Shareholder of any Series shall have a claim on or any right to any Assets
belonging to any other Series.
Section 5. OWNERSHIP AND TRANSFER OF SHARES. The Trust shall maintain, or
cause a transfer agent to maintain on its behalf, a register containing the
names and addresses of the Shareholders of each Series and Class thereof, the
number of Shares of each Series and Class held by each such Shareholder, and a
record of all Share transfers. The register shall be conclusive as to the
identity of Shareholders of record and the number of 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. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY. Shares
shall be deemed to be personal property giving Shareholders only the rights
provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by this Trust Instrument and to have become a party hereto. No Shareholder
shall be personally liable for the Liabilities 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 be enforced
only against the assets of the Trust or Assets belonging to that Series,
respectively; however, the omission of such statement shall not operate to bind,
or create personal liability for, any Shareholder or Trustee.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
Section 1. DISTRIBUTIONS. The Trustees may declare and pay distributions,
including dividends on Shares of a particular Series and other distributions
from the Assets belonging to that Series. The Trustees shall determine the
amount and payment of distributions and their form, whether in cash, Shares, or
other Trust Property. Distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All
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 distributions shall appropriately reflect expenses allocated to a
particular Class of such Series. The Trustees may adopt and offer to
Shareholders
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any distribution reinvestment plan, cash distribution payout plan, or similar
plan they deem appropriate.
Section 2. REDEMPTIONS. The Trustees may specify conditions, prices (based
on the Net Asset Value per Share next determined after receipt of a proper order
therefor), and places of redemption, binding requirements for the proper form or
forms of requests for redemption, and the amount of any deferred sales charge to
be withheld from redemption proceeds. Payment of the redemption price may be
made in cash and/or securities or other assets at their value used in
determining the Net Asset Value per Share on which such redemption price is
based. After redemption, Shares may be reissued from time to time. The Trustees
may require Shareholders to redeem Shares for any reason under terms the
Trustees set, including the failure of a Shareholder to supply a taxpayer
identification number if required to do so, 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 they require for payment of amounts due and owing by a Shareholder to
the Trust or any Series or any governmental authority. Notwithstanding the
foregoing, the Trustees may postpone payment of the redemption price and may
suspend the right of the Shareholders to require any Series to redeem Shares
during any period of time when and to the extent permissible under the 1940 Act.
The Shares of any Series, if the Trustees so determine, shall be redeemable only
in such Creation Unit aggregations and on such days as the Trustees determine or
as determined pursuant to procedures or methods the Trustees prescribe or
approve from time to time with respect to such Series. Each holder of a Creation
Unit, on request to the Trust in accordance with procedures the Trustees
establish, shall be entitled to require the Trust to redeem all or any number of
such holder's Shares standing in the holder's name on the Trust's books (but
only in full Creation Units in the case of any Series as to which the Trustees
have determined that its Shares shall be redeemable only in full Creation
Units), at a redemption price per share equal to an amount determined by the
Trustees in accordance with applicable laws.
Section 3. DETERMINATION OF NET ASSET VALUE PER SHARE. The Trustees shall
cause the Net Asset Value per Share of each Series and 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 the 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 per
Share shall be determined separately for each Series and Class at times the
Trustees prescribe or, in the absence of action by the Trustees, as of the close
of regular 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 suspend the right of Shareholders to
redeem their Shares, such suspension shall take effect at the time the Trustees
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.
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ARTICLE VI
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 as provided in Section 2 of this
Article, (b) the removal of Trustees as provided in Article II, Section 3(d),
(c) any investment advisory contract as provided in Article VII, Section 1, (d)
any termination of the Trust as provided in Article X, Section 4(a), (e) the
amendment of this Trust Instrument to the extent provided in Article X, Section
8, and (f) additional matters relating to the Trust required or authorized by
law, this Trust Instrument or the By-laws, 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 determine that the matter affects the interests of
more than one Series or Class, 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 By-laws, which may provide that
proxies may be given by any electronic or telecommunications device or in any
other manner, either in all cases or in certain cases described in the Bylaws or
in a resolution of the Trustees. 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 Trust
Instrument, or the By-laws.
Section 2. MEETINGS OF SHAREHOLDERS. The first Shareholders' meeting shall
be held to elect Trustees at such time and place as the Trustees designate.
Special meetings of the Shareholders of any Series or Class may be called by the
Trustees and shall be called by the Trustees on the written request of
Shareholders owning at least ten percent of the Outstanding Shares of such
Series or Class entitled to vote. Shareholders shall be entitled to at least
fifteen 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. Any lesser number shall be
sufficient for adjournments. Any adjourned session of a Shareholders' meeting
may be held within a reasonable time without further notice. Except when a
larger vote is required by law, this Trust Instrument, or the By-laws, a
majority of the Outstanding Shares voted in person or by proxy shall decide any
matters to be voted on with respect to the entire Trust and a plurality of such
Outstanding Shares shall elect a Trustee; provided, that if this Trust
Instrument or applicable law permits or requires that Shares be voted on any
matter by individual Series or Classes, then a majority of the outstanding
Shares of that Series or Class (or, if required by law, a Majority Shareholder
Vote of that Series or Class) voted in person or by proxy voted on the matter
shall decide that matter insofar as that Series or Class is concerned.
Shareholders
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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.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. INVESTMENT ADVISORY CONTRACTS. Subject to a Majority
Shareholder Vote when required by law, 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 investment sub-advisers.
Section 2. DISTRIBUTION CONTRACTS. 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 applicable rules and regulations.
Section 3. CUSTODY AGREEMENTS. 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 on 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 on orders or vouchers, and (d)
employ one or more sub-custodians.
Section 4. OTHER CONTRACTS. The Trustees, on behalf of the Trust or any
Series or Class, may enter into one or more contracts for processing Creation
Units and with respect to the secondary market trading of Shares, transfer
agency agreements, Shareholder service agreements, administration agreements,
calculation agent agreements, and management contracts with any party or parties
on terms and conditions acceptable to the Trustees.
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
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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; provided,
that the contract was reasonable and fair and not inconsistent with this Trust
Instrument or the By-laws. Any contract referred to in Sections 1 or 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 thereof or its 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 VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series shall
pay, or shall reimburse the Trustees from the Trust estate or the Assets
belonging to that Series, respectively, for their expenses and disbursements,
including the following: interest charges, taxes, brokerage fees, and
commissions; expenses of issuing, repurchasing, and redeeming Shares; certain
insurance premiums; applicable fees, interest charges, and expenses of third
parties, including the Trust's Investment Adviser, manager, Administrator,
distributor, Custodian, transfer agent, and fund accountant; 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
thereof, 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 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; state or
foreign securities laws registration fees and related expenses; and other
non-recurring items that may arise, including the expenses of litigation to
which the Trust or a Series (or a Trustee or officer of the Trust acting as
such) is a party, and 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 belonging to 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.
ARTICLE IX
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 Assets belonging to such Series, respectively, for payment under
such contract or claim; and
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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 shall
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
and officers 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,
Investment Adviser, or independent contractor of the Trust, but nothing
contained in this Trust Instrument or in the Delaware Act shall protect any
Trustee or officer 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 or an officer,
employee, or agent of the Trust ("Covered Person") shall be indemnified by
the Trust or the appropriate Series (out of Assets belonging to that
Series) to the fullest extent permitted by law against liability and
against all expenses reasonably incurred or paid by him in connection with
any claim, action, suit, or proceeding in which he becomes involved as a
party or otherwise by virtue of his being or having been a Covered Person
and against amounts paid or incurred by him in the settlement thereof;
provided that the transfer agent of the Trust or any Series shall not be
considered an agent for these purposes unless expressly deemed to be such
by the Trustees in a resolution referring to this Article.
(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, and
the words "liability" and "expenses" shall include attorneys 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 has 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 the best interest 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 on a review of readily available facts (as opposed to
a full trial-type inquiry), or (C) by written opinion
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of independent legal counsel based on a review of readily available facts
(as opposed to a full trial-type inquiry).
(c) The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, 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.
(d) 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 shall be paid by the Trust or applicable Series from time to time prior
to final disposition thereof on receipt of an undertaking by or on behalf of
such Covered Person that such amount will be paid over by him to the Trust or
applicable Series if it is ultimately determined that he is not entitled to
indemnification under this Section, provided that either (i) such Covered Person
has 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, has
determined, based on 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.
(e) Any repeal or modification of this Article IX by the Shareholders, or
adoption or modification of any other provision of this Trust Instrument or the
By-laws inconsistent with this Article, shall be prospective only, to the extent
that such repeal, modification, or adoption 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 that occurred prior to such repeal, modification, or adoption.
Section 3. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or former
Shareholder of any Series is held personally liable solely by reason of his
being or having been a Shareholder and not because of his acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his 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, on request by such Shareholder or former Shareholder, assume the
defense of any claim made against him for any act or obligation of that Series
and satisfy any judgment thereon from the Assets belonging to that Series.
ARTICLE X
MISCELLANEOUS
Section 1. TRUST NOT A PARTNERSHIP. This Trust Instrument creates a trust
and not a partnership, and no Trustee shall have any power to bind personally
either the Trust's officers or any Shareholder. It is intended that the Trust
(or each Series if there is more than one
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Series) be classified as an association (and thus a corporation) for federal tax
purposes, and the Trustees shall do all things they, in their discretion,
determine are necessary to achieve that objective, including affirmatively
electing such classification on Internal Revenue Form 8832. Each Trustee is
hereby authorized to sign such form on behalf of the Trust or any Series, and
the Trustees may delegate such authority to any executive officer(s) of the
Trust's or any Series' investment manager. The Trustees, in their discretion and
without the vote or consent of the Shareholders, may amend this Trust Instrument
to ensure that this objective is achieved.
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 on
everyone interested. Subject to Article IX, 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 Trust
Instrument, and subject to Article IX, 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 90
days before the date of any Shareholders' meeting, the date for the payment of
any distributions, the date for the allotment of rights, or the date when any
change, 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, to receive payment of such distribution, to receive any such
allotment of rights, or to exercise such rights in respect of any such change,
conversion, or exchange of Shares.
Section 4. TERMINATION OF THE TRUST.
(a) The Trust shall have perpetual existence. Subject to a Majority
Shareholder Vote of the Trust or of each Series to be affected, the Trustees
may --
(i) sell and convey or otherwise transfer all or substantially all
of the assets of the Trust or of the Assets belonging to any Series to
another Series or to another entity that is an open-end investment company
as defined in the 1940 Act, or is a series thereof, for adequate
consideration, which may include the assumption of all outstanding taxes
and other Liabilities, accrued or contingent, of the Trust or transferor
Series, and which may include shares of or interests in such transferee
Series, entity, or series thereof or
(ii) at any time sell and convert into money all or substantially
all of the assets of the Trust or of the Assets belonging to any Series.
Pursuant to a transfer or conversion described in clause (i) or (ii), on making
reasonable provision for the payment of all known Liabilities of the Trust or
affected Series, by an assumption described above or otherwise, the Trustees
shall distribute the remaining proceeds or assets (as the case may be) ratably
among the Shareholders of the Trust or affected Series; provided that the
payment to any particular Class of such Series may be reduced by any fees,
expenses, or charges allocated to that Class.
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(b) The Trustees may take any of the actions specified in subsection
(a)(i) and (ii) above without obtaining a Majority Shareholder Vote of the Trust
or any Series if a majority of the Trustees determines that the continuation of
the Trust or Series is not in the best interests of the Trust, such Series, or
their respective Shareholders as a result of factors or events adversely
affecting the ability of the Trust or such Series to conduct its business and
operations in an economically viable manner. Such factors and events may include
the inability of the Trust or a Series to maintain its assets at an appropriate
size, changes in laws or regulations governing the Trust or the Series or
affecting assets of the type in which the Trust or Series invests, or economic
developments or trends having a significant adverse impact on the business or
operations of the Trust or such Series.
(c) On completion of the distribution of the remaining proceeds or assets
pursuant to subsection (a), the Trust or affected Series 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. On 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.
(a) Notwithstanding anything else herein but subject to applicable federal
and state law, the Trustees may, without any Shareholder vote or approval, (a)
cause the Trust to merge or consolidate with or into, or be reorganized as,
another trust, or a corporation, partnership, limited liability company,
association, or other organization, organized under the laws of Delaware or any
other jurisdiction, or a segregated portfolio of assets ("series") of any of the
foregoing (each, as used in this paragraph, an "Entity"), if the surviving or
resulting Entity is the Trust or another open-end management investment company,
within the meaning of the 1940 Act, that will succeed to or assume the Trust's
registration under the 1940 Act, (b) cause any Series to merge or consolidate
with or into, or be reorganized as, a newly organized Entity in a transaction or
series of transactions intended to qualify as a reorganization under section
368(a)(1)(F) of the Tax Code or a successor provision, (c) cause the Trust to
incorporate under the laws of Delaware or any other jurisdiction, and/or (d)
cause to be organized, or assist in organizing, an Entity to acquire all or part
of the Trust Property or of the Assets belonging to a Series or to carry on any
business in which the Trust directly or indirectly has any interest and to sell,
convey, and transfer all or part of the Trust Property or of the Assets
belonging to a Series to any such Entity in exchange for shares or other equity
securities thereof or otherwise and to lend money to, subscribe for the shares
or other equity securities of, and enter into any contracts with any such
Entity; provided that the Trustees shall provide written notice to affected
Shareholders of any transaction whereby the Trust sells, conveys, or otherwise
transfers all or part of the Trust Property or of the Assets belonging to any
Series to another Entity or the Trust or any Series merges or consolidates with
or into, or is reorganized as, another Entity. The transactions described in
this Section 5 may be effected through share-for-share exchanges, transfers or
sale of assets, shareholder in-kind redemptions and purchases, exchange offers,
or any other method the Trustees approve.
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(b) 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. Pursuant to and in
accordance with Section 3815(f) of the Delaware Act, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section 5 may
effect any amendment to this Trust Instrument or effect the adoption of a new
trust instrument of the Trust if it is the surviving or resulting trust in the
merger or consolidation.
Section 6. TRUST INSTRUMENT. The original or a copy of this Trust
Instrument and of each amendment hereto or restatement hereof shall be kept at
the Trust's office, 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 Trust Instrument or any such amendment or
restatement and as to any matters in connection with the Trust. This Trust
Instrument may be executed in any number of counterparts, each of which shall be
deemed an original.
Section 7. APPLICABLE LAW. This Trust Instrument and the Trust created
hereunder are governed by and shall be construed and administered according to
the Delaware Act and the applicable laws of the State of Delaware; provided that
the following shall not apply to the Trust, the Trustees, or this Trust
Instrument: (a) 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 that 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) 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 responsibilities or limitations on the acts or powers of
trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a Delaware statutory
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers that 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 action.
Section 8. AMENDMENTS. The Trustees may, without any Shareholder vote,
amend this Trust Instrument by making an amendment or an amended and restated
trust instrument; provided that Shareholders shall have the right to vote on any
amendment (a) that would affect their voting rights granted in Article VI,
Section 1, (b) to this Section 8, (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 that the Trustees determine would affect the
Shareholders of any Series shall be authorized by vote of the Shareholders of
such Series, and no vote shall be required of Shareholders of Series not
affected. Notwithstanding anything else herein, any
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amendment to Article IX that 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 9. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date set forth in the By-Laws. The Trustees may change the fiscal year
of the Trust without Shareholder approval.
Section 10. SEVERABILITY. The provisions of this Trust Instrument are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the Tax Code provisions that apply
to regulated investment companies, or other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Trust Instrument; provided that such determination shall not affect any of the
remaining provisions of this Trust Instrument or render invalid or improper any
action taken or omitted prior to such determination. If any provision hereof is
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 Trust Instrument.
Section 11. INTERPRETATION. As used herein, the masculine gender includes
all genders, and the singular includes the plural, and vice versa. Headings are
for convenience only and shall not affect the construction of this Trust
Instrument.
IN WITNESS WHEREOF, the undersigned, being the initial Trustees, have
executed this Trust Instrument as of the date first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as Trustee and not
individually
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, as Trustee and not individually
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee and not individually
Address of each: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-20-
SCHEDULE A
SERIES OF THE TRUST
(as of November 8, 2006)
WISDOMTREE DOMESTIC FUNDS
WisdomTree(SM) Total Dividend Fund
WisdomTree High-Yielding Equity(SM) Fund
WisdomTree LargeCap Dividend Fund
WisdomTree Dividend Top 100(SM) Fund
WisdomTree MidCap Dividend Fund
WisdomTree SmallCap Dividend Fund
WisdomTree Communications Sector Fund
WisdomTree Financials Sector Fund
WisdomTree REIT Sector Fund
WisdomTree Utilities Sector Fund
WisdomTree Total Earnings Fund
WisdomTree LargeCap Earnings Fund
WisdomTree MidCap Earnings Fund
WisdomTree SmallCap Earnings Fund
WisdomTree Earnings Top 100 Fund
WisdomTree Low P/E Fund
WISDOMTREE INTERNATIONAL FUNDS
WisdomTree DIEFA(SM) Fund
WisdomTree DIEFA High-Yielding Equity Fund
WisdomTree Europe Total Dividend Fund
WisdomTree Europe High-Yielding Equity Fund
WisdomTree Europe SmallCap Dividend Fund
WisdomTree Japan Total Dividend Fund
WisdomTree Japan High-Yielding Equity Fund
WisdomTree Japan SmallCap Dividend Fund
WisdomTree Pacific ex-Japan Total Dividend Fund
WisdomTree Pacific ex-Japan High-Yielding Equity Fund
WisdomTree International LargeCap Dividend Fund
WisdomTree International Dividend Top 100(SM) Fund
WisdomTree International MidCap Dividend Fund
WisdomTree International SmallCap Dividend Fund
WisdomTree Asia Emerging Markets Total Dividend Fund
WisdomTree Asia Emerging Markets High-Yielding Equity Fund
WisdomTree Emerging Markets Total Dividend Fund
WisdomTree Emerging Markets High Yielding Equity Fund
WisdomTree Emerging Markets Dividend Top 100 Fund
WisdomTree Latin America Dividend Fund
WisdomTree Australia Total Dividend Fund
WisdomTree Canada Total Dividend Fund
WisdomTree China Total Dividend Fund
WisdomTree France Total Dividend Fund
WisdomTree Germany Total Dividend Fund
WisdomTree Hong Kong Total Dividend Fund
WisdomTree India Total Dividend Fund
WisdomTree Malaysia Total Dividend Fund
WisdomTree Singapore Total Dividend Fund
WisdomTree Sweden Total Dividend Fund
WisdomTree South Africa Total Dividend Fund
WisdomTree South Korea Total Dividend Fund
WisdomTree Taiwan Total Dividend Fund
WisdomTree United Kingdom Total Dividend Fund
WisdomTree United Kingdom High-yielding Equity Fund
WisdomTree International Basic Materials Sector Fund
WisdomTree International Communications Sector Fund
WisdomTree International Consumer Cyclical Sector Fund
WisdomTree International Consumer Non-Cyclical Sector Fund
WisdomTree International Energy Sector Fund
WisdomTree International Financial Sector Fund
WisdomTree International Health Care Sector Fund
WisdomTree International Industrial Sector Fund
WisdomTree International Real Estate Sector Fund
WisdomTree International Technology Sector Fund
WisdomTree International Utilities Sector Fund