AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN CAPITAL GROWTH FUND
A DELAWARE STATUTORY TRUST
(Original Agreement and Declaration of Trust was adopted March
21, 2000;
current Amended and Restated Agreement and Declaration of Trust
adopted May 21, 2007.)
TABLE OF CONTENTS
PAGE
ARTICLE I. NAME; OFFICES; REGISTERED AGENT; DEFINITIONS......2
Section ▇.▇▇▇▇..............................................2
Section 2.Offices of the Trust..............................2
Section 3.Registered Agent and Registered Office............2
Section 4.Definitions.......................................2
ARTICLE II. PURPOSE OF TRUST..................................2
ARTICLE III. SHARES............................................2
Section 1.Division of Beneficial Interest...................2
Section 2.Ownership of Shares...............................2
Section ▇.▇▇▇▇ of Shares....................................2
Section 4.Status of Shares and Limitation of Personal
Liability.........................................2
Section 5.Power of Board of Trustees to Make Tax Status
Election..........................................2
Section 6.Establishment and Designation of Series and
Classes...........................................2
(a) Assets Held with Respect to a Particular
Series.......................................2
(b) Liabilities Held with Respect to a
Particular Series or Class...................2
(c) Dividends, Distributions and Redemptions.....2
(d) Voting.......................................2
(e) Equality.....................................2
(f) Fractions....................................2
(g) Exchange Privilege...........................2
(h) Combination of Series or Classes.............2
(i) Dissolution or Termination...................2
Section 7.Indemnification of Shareholders...................2
ARTICLE IV. THE BOARD OF TRUSTEES.............................2
Section 1.Number, Election, Term, Removal and
Resignation.......................................2
Section 2.Trustee Action by Written Consent Without a
Meeting...........................................2
Section 3.Powers; Other Business Interests; Quorum and
Required Vote.....................................2
(a) Powers.......................................2
(b) Other Business Interests.....................2
(c) Quorum and Required Vote.....................2
Section 4.Payment of Expenses by the Trust..................2
Section 5.Payment of Expenses by Shareholders...............2
Section 6.Ownership of Trust Property.......................2
Section 7.Service Contracts.................................2
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS..........2
Section ▇.▇▇▇▇▇▇ Powers.....................................2
Section 2.Quorum and Required Vote..........................2
Section 3.Shareholder Action by Written Consent Without
a Meeting.........................................2
Section 4.Record Dates......................................2
Section 5.Additional Provisions.............................2
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS;
TRANSFERS.........................................2
Section 1.Determination of Net Asset Value, Net Income
and Distributions.................................2
Section 2.Redemptions at the Option of a Shareholder........2
Section 3.Redemptions at the Option of the Trust............2
Section 4.Transfer of Shares................................2
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION
OF AGENT..........................................2
Section 1.Limitation of Liability...........................2
Section 2.Indemnification...................................2
(a) Indemnification by Trust.....................2
(b) Exclusion of Indemnification.................2
(c) Required Approval............................2
(d) Advancement of Expenses......................2
(e) Other Contractual Rights.....................2
(f) Fiduciaries of Employee Benefit Plan.........2
Section ▇.▇▇▇▇▇▇▇▇▇.........................................2
Section 4.Derivative Actions................................2
ARTICLE VIII. CERTAIN TRANSACTIONS..............................2
Section 1.Dissolution of Trust or Series....................2
Section 2.Merger or Consolidation; Conversion;
Reorganization....................................2
(a) Merger or Consolidation......................2
(b) Conversion...................................2
(c) Reorganization...............................2
Section 3.Master Feeder Structure...........................2
Section 4.Absence of Appraisal or Dissenters' Rights........2
ARTICLE IX. AMENDMENTS........................................2
Section 1.Amendments Generally..............................2
ARTICLE X. MISCELLANEOUS.....................................2
Section 1.References; Headings; Counterparts................2
Section 2.Applicable Law....................................2
Section 3.Provisions in Conflict with Law or
Regulations.......................................2
Section 4.Statutory Trust Only..............................2
Section 5.Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and/or "Institutional
Fiduciary Trust"..................................2
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN CAPITAL GROWTH FUND
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
is made as of this 21st day of May, 2007, by the Trustees
hereunder, and by the holders of Shares issued or to be issued by
Franklin Capital Growth Fund (the "Trust") hereunder, and (i)
incorporates herein and makes a part of this Amended and Restated
Agreement and Declaration of Trust the resolutions of the Board
of Trustees of the Trust adopted prior to the date set forth
above, pursuant to the provisions of the original Agreement and
Declaration of Trust dated March 21, 2000, as amended or restated
to date, (the "Original Declaration of Trust"), regarding the
establishment and designation of Series and/or Classes of the
Shares of the Trust, and any amendments or modifications to such
resolutions adopted through the date hereof, as of the date of
the adoption of each such resolution, and (ii) amends and
restates the Original Declaration of Trust pursuant to Article
VIII, Section 4, of such Original Declaration of Trust, as
hereinafter provided.
WITNESSETH:
WHEREAS this Trust was formed to carry on the business of an
open-end management investment company as defined in the 1940
Act; and
WHEREAS this Trust is authorized to divide its Shares into
two or more Classes, to issue its Shares in separate Series, to
divide Shares of any Series into two or more Classes and to issue
Classes of the Trust or the Series, if any, all in accordance
with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property
coming into their hands as trustees of a Delaware statutory trust
in accordance with the provisions of the Delaware Statutory Trust
Act, as amended from time to time, and the provisions hereinafter
set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration of Trust is amended and
restated in its entirety in the manner herein set forth;
(ii) the Trustees will hold all cash, securities and other
assets that they may from time to time acquire in any manner as
Trustees hereunder IN TRUST and will manage and dispose of the
same upon the following terms and conditions for the benefit of
the holders from time to time of Shares created hereunder as
hereinafter set forth; and
(iii) this Declaration of Trust and the By-Laws shall be
binding in accordance with their terms on every Trustee, by
virtue of having become a Trustee of the Trust, and on every
Shareholder, by virtue of having become a Shareholder of the
Trust, pursuant to the terms of the Original Declaration of Trust
and/or this Declaration of Trust and the By-Laws.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. NAME. This Trust shall be known as "Franklin
Capital Growth Fund" and the Board of Trustees shall conduct the
business of the Trust under that name, or any other name as it
may from time to time designate.
Section 2. OFFICES OF THE TRUST. The Board may at any time
establish offices of the Trust at any place or places where the
Trust intends to do business.
Section 3. REGISTERED AGENT AND REGISTERED OFFICE. The name
of the registered agent of the Trust and the address of the
registered office of the Trust are as set forth in the Trust's
Certificate of Trust.
Section 4. DEFINITIONS. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) "1940 ACT" shall mean the Investment Company Act of
1940 and the rules and regulations thereunder, all as adopted or
amended from time to time;
(b) "AFFILIATE" shall have the same meaning as "affiliated
person" as such term is defined in the 1940 Act when used with
reference to a specified Person, as defined below.
(c) "BOARD OF TRUSTEES" shall mean the governing body of
the Trust, that is comprised of the number of Trustees of the Trust
fixed from time to time pursuant to Article IV hereof, having the
powers and duties set forth herein;
(d) "BY-LAWS" shall mean By-Laws of the Trust, as amended
or restated from time to time in accordance with Article VIII
therein. Such By-Laws may contain any provision not inconsistent
with applicable law or this Declaration of Trust, relating to the
governance of the Trust;
(e) "CERTIFICATE OF TRUST" shall mean the certificate of
trust of the Trust filed on March 21, 2000 with the office of the
Secretary of State of the State of Delaware as required under the
Delaware Statutory Trust Act, as such certificate has been or
shall be amended or restated from time to time;
(f) "CLASS" shall mean each class of Shares of the Trust
or of a Series of the Trust established and designated under and
in accordance with the provisions of Article III hereof or the
corresponding provisions of the Original Declaration of Trust;
(g) "CODE" shall mean the Internal Revenue Code of 1986
and the rules and regulations thereunder, all as adopted or amended
from time to time;
(h) "COMMISSION" shall have the meaning given that term in
the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 DEL. C. ss. 3801, ET SEQ.), as amended from time to time;
(j) "DECLARATION OF TRUST" shall mean this Amended and
Restated Agreement and Declaration of Trust, including resolutions
of the Board of Trustees of the Trust that have been adopted prior
to the date of this document, or that may be adopted hereafter,
regarding the establishment and designation of Series and/or
Classes of Shares of the Trust, and any amendments or
modifications to such resolutions, as of the date of the adoption
of each such resolution;
(k) "GENERAL LIABILITIES" shall have the meaning given it
in Article III, Section 6(b) of this Declaration of Trust;
(l) "INTERESTED PERSON" shall have the meaning given that
term in the 1940 Act;
(m) "INVESTMENT ADVISER" or "ADVISER" shall mean a Person,
as defined below, furnishing services to the Trust pursuant to any
investment advisory or investment management contract described
in Article IV, Section 7(a) hereof;
(n) "NATIONAL FINANCIAL EMERGENCY" shall mean the whole or
any part of any period during (i) which an emergency exists as a
result of which disposal by the Trust of securities or other
assets owned by the Trust is not reasonably practicable; (ii)
which it is not reasonably practicable for the Trust fairly to
determine the net asset value of its assets; or (iii) such other
period as the Commission may by order permit for the protection
of investors;
(o) "PERSON" shall mean a natural person, partnership,
limited partnership, limited liability company, trust, estate,
association, corporation, organization, custodian, nominee or any
other individual or entity in its own or any representative
capacity, in each case, whether domestic or foreign, and a
statutory trust or a foreign statutory or business trust;
(p) "PRINCIPAL UNDERWRITER" shall have the meaning given
that term in the 1940 Act;
(q) "SERIES" shall mean each Series of Shares established
and designated under and in accordance with the provisions of Article
III hereof, or the corresponding provisions of the Original
Declaration of Trust;
(r) "SHARES" shall mean the transferable shares of beneficial
interest into which the beneficial interest in the Trust have been
or shall be divided from time to time, and shall include fractional
and whole Shares;
(s) "SHAREHOLDER" shall mean a record owner of Shares
pursuant to the By-Laws;
(t) "TRUST" shall mean Franklin Capital Growth Fund, the
Delaware statutory trust formed hereby and by filing of the
Certificate of Trust with the office of the Secretary of State of
the State of Delaware;
(u) "TRUST PROPERTY" shall mean any and all property, real
or personal, tangible or intangible, which is owned or held by or
for the account of the Trust, or one or more of any Series
thereof, including, without limitation, the rights referenced in
Article X, Section 5 hereof; and
(v) "TRUSTEE" or "TRUSTEES" shall mean each Person who
signs this Declaration of Trust as a trustee and all other Persons
who may, from time to time, be duly elected or appointed, qualified
and serving on the Board of Trustees in accordance with the
provisions hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with the terms
hereof and the By-Laws. Reference herein to a Trustee or the
Trustees shall refer to such Person or Persons in such Person's
or Persons' capacity as a trustee or trustees hereunder and under
the By-Laws.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on
the business of a registered management investment company
registered under the 1940 Act, directly, or if one or more Series
is established hereunder, through one or more Series, investing
primarily in securities, and to exercise all of the powers,
rights and privileges granted to, or conferred upon, a statutory
trust formed under the DSTA, including, without limitation, the
following powers:
(a) To hold, invest and reinvest its funds, and in
connection therewith, to make any changes in the investment of the
assets of the Trust, to hold part or all of its funds in cash, to
hold cash uninvested, to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, own, hold, pledge, sell, assign,
mortgage, transfer, exchange, distribute, write options on, lend
or otherwise deal in or dispose of contracts for the future
acquisition or delivery of fixed income or other securities, and
securities or property of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks,
shares, units of beneficial interest, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences
of indebtedness, money market instruments, certificates of
deposit or indebtedness, bills, notes, mortgages, commercial
paper, repurchase or reverse repurchase agreements, bankers'
acceptances, finance paper, and any options, certificates,
receipts, warrants, futures contracts or other instruments
representing rights to receive, purchase or subscribe for the
same, or evidencing or representing any other rights or interests
therein or in any property or assets, and other securities of any
kind, as the foregoing are 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 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;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use and
enjoyment of any of such securities and other instruments or
property of every kind and description, including, but without
limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise or
enjoy any rights, title, interest, powers or privileges under or
with reference to any of such securities and other instruments or
property, 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, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of
any of such securities and other instruments or property;
(c) 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, subject to any requirements of the 1940 Act;
(d) 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;
(e) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of securities
and/or other property;
(f) To hold any security or property in a form not
indicating that it is trust property, whether in bearer,
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 proper safeguards according to the usual
practice of investment companies or any rules or regulations
applicable thereto;
(g) 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;
(h) 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;
(i) To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) 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;
(l) To purchase and pay for entirely out of Trust
Property such insurance as the Board of Trustees may deem
necessary or appropriate for the conduct of the business, including,
without limitation, insurance policies insuring the assets of the
Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Advisers,
Principal Underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature
arising by reason of holding Shares, holding, being or having
held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such Person as
Trustee, officer, employee, agent, Investment Adviser, Principal
Underwriter, or independent contractor, to the fullest extent
permitted by this Declaration of Trust, the By-Laws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-
sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts
as a means of providing such retirement and other benefits, for
any or all of the Trustees, officers, employees and agents of the
Trust;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy, property
of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop, improve,
manage, subdivide, and generally to deal and trade in real
property, improved and unimproved, and wheresoever situated; and
to build, erect, construct, alter and maintain buildings,
structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of
the Trust, and to mortgage or pledge the whole or any part of the
property and franchises of the Trust, real, personal, and mixed,
tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and
undertakings of every kind for any lawful purpose, without limit
as to amount;
(r) To issue, purchase, sell and transfer, reacquire,
hold, trade and deal in stocks, Shares, bonds, debentures and other
securities, instruments or other property of the Trust, from time
to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust,
determine; and to re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise,
abandon, or adjust, by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any
debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include
without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding,
dispute, claim, or demand, derivative or otherwise, brought by
any Person, including a Shareholder in the Shareholder's own name
or the name of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other
states, territories, districts and United States dependencies and
in foreign countries, all of the foregoing powers, rights and
privileges, and the enumeration of the foregoing powers shall not
be deemed to exclude any powers, rights or privileges so granted
or conferred; and
(u) In general, to carry on any other business in
connection with or incidental to its trust purposes, to do
everything necessary, suitable or proper for the accomplishment
of such purposes or for the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone
or in association with others, and to do every other act or thing
incidental or appurtenant to, or growing out of, or connected
with, its business or purposes, objects or powers.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or one or
more of its Series. Neither the Trust nor the Board of Trustees
shall be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that the
foregoing enumeration of specific purposes, objects and powers
shall not be held to limit or restrict in any manner the powers
of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers
conferred upon the Trust by the DSTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one
thing be deemed to exclude another, although it be of like
nature, not expressed.
ARTICLE III
SHARES
Section 1. DIVISION OF BENEFICIAL INTEREST.
(a) The beneficial interest in the Trust shall be divided
into Shares, each Share without a par value. The number of Shares
in the Trust authorized under the Original Declaration of Trust and
authorized hereunder, and of each Series and Class as may be
established from time to time, is unlimited. The Board of
Trustees may authorize the division of Shares into separate
Classes of Shares and into separate and distinct Series of Shares
and the division of any Series into separate Classes of Shares in
accordance with the 1940 Act. As of the effective date of this
Declaration of Trust, any new Series and Classes shall be
established and designated pursuant to Article III, Section 6
hereof. If no separate Series or Classes of Series shall be
established, the Shares shall have the rights, powers and duties
provided for herein and in Article III, Section 6 hereof to the
extent relevant and not otherwise provided for herein, and all
references to Series and Classes shall be construed (as the
context may require) to refer to the Trust.
(i) The fact that the Trust shall have one or more
established and designated Classes of the Trust,
shall not limit the authority of the Board of
Trustees to establish and designate
additional Classes of the Trust. The fact
that one or more Classes of the Trust shall
have initially been established and
designated without any specific establishment
or designation of a Series (i.e., that all
Shares of the Trust are initially Shares of
one or more Classes) shall not limit the
authority of the Board of Trustees to later
establish and designate a Series and
establish and designate the Class or Classes
of the Trust as Class or Classes,
respectively, of such Series.
(ii) The fact that a Series shall have initially been
established and designated without any specific
establishment or designation of Classes
(i.e., that all Shares of such Series are
initially of a single Class) shall not limit
the authority of the Board of Trustees to
establish and designate separate Classes of
said Series. The fact that a Series shall
have more than one established and designated
Class, shall not limit the authority of the
Board of Trustees to establish and designate
additional Classes of said Series.
(b) The Board of Trustees shall have the power to issue
authorized, but unissued Shares of beneficial interest of the
Trust, or any Series and Class thereof, from time to time for
such consideration paid wholly or partly in cash, securities or
other property, as may be determined from time to time by the
Board of Trustees, subject to any requirements or limitations of
the 1940 Act. The Board of Trustees, on behalf of the Trust, may
acquire and hold as treasury shares, reissue for such
consideration and on such terms as it may determine, or cancel,
at its discretion from time to time, any Shares reacquired by the
Trust. The Board of Trustees may classify or reclassify any
unissued Shares of beneficial interest or any Shares of
beneficial interest of the Trust or any Series or Class thereof,
that were previously issued and are reacquired, into one or more
Series or Classes that may be established and designated from
time to time. Notwithstanding the foregoing, the Trust and any
Series thereof may acquire, hold, sell and otherwise deal in, for
purposes of investment or otherwise, the Shares of any other
Series of the Trust or Shares of the Trust, and such Shares shall
not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article
III, each Share shall entitle the holder to voting rights as provided
in Article V hereof. Shareholders shall have no preemptive or
other right to subscribe for new or additional authorized, but
unissued Shares or other securities issued by the Trust or any
Series thereof. The Board of Trustees may from time to time
divide or combine the Shares of the Trust or any particular
Series thereof into a greater or lesser number of Shares of the
Trust or that Series, respectively. Such division or combination
shall not materially change the proportionate beneficial
interests of the holders of Shares of the Trust or that Series,
as the case may be, in the Trust Property at the time of such
division or combination that is held with respect to the Trust or
that Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an economic or
other interest, may acquire, own, hold and dispose of Shares of
beneficial interest in the Trust or any Series and Class thereof,
whether such Shares are authorized but unissued, or already
outstanding, to the same extent as if such Person were not a
Trustee, officer or other agent of the Trust; and the Trust or
any Series may issue and sell and may purchase such Shares from
any such Person or any such organization, subject to the
limitations, restrictions or other provisions applicable to the
sale or purchase of such Shares herein and the 1940 Act.
Section 2. OWNERSHIP OF SHARES. The ownership of Shares
shall be recorded on the books of the Trust kept by the Trust or
by a transfer or similar agent for the Trust, which books shall
be maintained separately for the Shares of the Trust and each
Series and each Class thereof that has been established and
designated. No certificates certifying the ownership of Shares
shall be issued except as the Board of Trustees may otherwise
determine from time to time. The Board of Trustees may make such
rules not inconsistent with the provisions of the 1940 Act as it
considers appropriate for the issuance of Share certificates, the
transfer of Shares of the Trust and each Series and Class
thereof, if any, and similar matters. 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 who are the
Shareholders of the Trust and each Series and Class thereof and
as to the number of Shares of the Trust and each Series and Class
thereof held from time to time by each such Shareholder.
Section 3. SALE OF SHARES. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but unissued
Shares of beneficial interest to such Persons, at such times, on
such terms, and for such consideration as the Board of Trustees
may from time to time authorize. Each sale shall be credited to
the individual purchaser's account in the form of full or
fractional Shares of the Trust or such Series thereof (and Class
thereof, if any), as the purchaser may select, at the net asset
value per Share, subject to Section 22 of the 1940 Act, and the
rules and regulations adopted thereunder; PROVIDED, HOWEVER, that
the Board of Trustees may, in its sole discretion, permit the
Principal Underwriter to impose a sales charge upon any such
sale. Every Shareholder by virtue of having become a Shareholder
shall be deemed to have expressly assented and agreed to the
terms of this Declaration of Trust and to have become bound as a
party hereto.
Section 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property giving
to Shareholders only the rights provided in this Declaration of
Trust, the By-Laws, and under applicable law. Ownership of
Shares shall not entitle the Shareholder to any title in or to
the whole or any part of the Trust Property or right to call for
a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders as
partners. Subject to Article VIII, Section 1 hereof, the death,
incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series
thereof shall not operate to dissolve the Trust or any such
Series, nor entitle the representative of any deceased,
incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against
the Trust, the Trustees or any such Series, but entitles such
representative only to the rights of said deceased,
incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust, shall
have any power to bind personally any Shareholder, nor, except as
specifically provided herein, to call upon any Shareholder for
the payment of any sum of money other than such as the
Shareholder may at any time personally agree to pay. Each Share,
when issued on the terms determined by the Board of Trustees,
shall be fully paid and nonassessable. As provided in the DSTA,
Shareholders shall be entitled to the same limitation of personal
liability as that extended to stockholders of a private
corporation organized for profit under the General Corporation
Law of the State of Delaware.
Section 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS
ELECTION. The Board of Trustees shall have the power, in its
discretion, to make such elections as to the tax status of the
Trust and any Series as may be permitted or required under the
Code, without the vote of any Shareholder.
Section 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND
Classes. The establishment and designation of any Series or Class
shall be effective, without the requirement of Shareholder
approval, upon the adoption of a resolution by not less than a
majority of the then Board of Trustees, which resolution shall
set forth such establishment and designation and may provide, to
the extent permitted by the DSTA, for rights, powers and duties
of such Series or Class (including variations in the relative
rights and preferences as between the different Series and
Classes) otherwise than as provided herein. Each such resolution
shall be incorporated herein upon adoption, and the resolutions
that have been adopted prior to May 21, 2007 regarding the
establishment and designation of Series and/or Classes of Shares
of the Trust pursuant to the applicable provisions of the
Original Declaration of Trust, and any amendments or
modifications to such resolutions through the date hereof, are
hereby incorporated herein as of the date of their adoption. Any
such resolution may be amended by a further resolution of a
majority of the Board of Trustees, and if Shareholder approval
would be required to make such an amendment to the language set
forth in this Declaration of Trust, such further resolution shall
require the same Shareholder approval that would be necessary to
make such amendment to the language set forth in this Declaration
of Trust. Each such further resolution shall be incorporated
herein by reference upon adoption.
Each Series shall be separate and distinct from any other
Series, separate and distinct records on the books of the Trust
shall be maintained for each Series, and the assets and
liabilities belonging to any such Series shall be held and
accounted for separately from the assets and liabilities of the
Trust or any other Series. Each Class of the Trust shall be
separate and distinct from any other Class of the Trust. Each
Class of a Series shall be separate and distinct from any other
Class of the Series. As appropriate, in a manner determined by
the Board of Trustees, the liabilities belonging to any such
Class shall be held and accounted for separately from the
liabilities of the Trust, the Series or any other Class and
separate and distinct records on the books of the Trust for the
Class shall be maintained for this purpose. Subject to Article
II hereof, each such Series shall operate as a separate and
distinct investment medium, with separately defined investment
objectives and policies.
Shares of each Series (and Class where applicable)
established and designated pursuant to this Section 6, or the
corresponding provisions of the Original Declaration of Trust
shall have the following rights, powers and duties, unless
otherwise provided to the extent permitted by the DSTA, in the
resolution establishing and designating such Series or Class:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES.
All consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof 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 with respect to that 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. 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 Board of
Trustees, or an appropriate officer as determined by the Board of
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 Board of Trustees, in its sole discretion, deems 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 or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders of all
Series for all purposes.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES
OR CLASS. The assets of the Trust held with respect to a particular
Series shall be charged with the liabilities, debts, obligations,
costs, charges, reserves and expenses of the Trust incurred,
contracted for or otherwise existing with respect to such
Series. Such liabilities, debts, obligations, costs, charges,
reserves and expenses incurred, contracted for or otherwise
existing with respect to a particular Series are herein referred
to as "liabilities held with respect to" that Series. Any
liabilities, debts, obligations, costs, charges, reserves and
expenses of the Trust which are not readily identifiable as being
liabilities held with respect to any particular Series
(collectively "General Liabilities") shall be allocated by the
Board of Trustees, or an appropriate officer as determined by the
Board of Trustees, to and among any one or more of the Series in
such manner and on such basis as the Board of Trustees in its
sole discretion deems fair and equitable. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and
expenses by or under the direction of the Board of Trustees shall
be conclusive and binding upon the Shareholders of all Series for
all purposes. All Persons who have extended credit that has been
allocated to a particular Series, or who have a claim or contract
that has been allocated to any particular Series, shall look
exclusively to the assets of that particular Series for payment
of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and
contract provider shall be deemed nevertheless to have impliedly
agreed to such limitation.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided herein,
the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
Series, whether such Series is now authorized and existing
pursuant to the Original Declaration of Trust, or is hereafter
authorized and existing pursuant to this Declaration of Trust,
shall be enforceable against the assets held with respect to that
Series only, and not against the assets of any other Series or
the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series
thereof shall be enforceable against the assets held with respect
to such Series. Notice of this limitation on liabilities between
and among Series has been set forth in the Certificate of Trust
filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DSTA, and having given such notice in
the Certificate of Trust, the statutory provisions of Section
3804 of the DSTA relating to limitations on liabilities between
and among Series (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) are
applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves
and expenses related to the distribution of, and other identified
expenses that should or may properly be allocated to, the Shares
of a particular Class may be charged to and borne solely by such
Class. The bearing of expenses solely by a particular Class of
Shares may be appropriately reflected (in a manner determined by
the Board of Trustees) and may affect the net asset value
attributable to, and the dividend, redemption and liquidation
rights of, such Class. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or under
the direction of the Board of Trustees shall be conclusive and
binding upon the Shareholders of all Classes for all purposes.
All Persons who have extended credit that has been allocated to a
particular Class, or who have a claim or contract that has been
allocated to any particular Class, shall look, and may be
required by contract to look, exclusively to that particular
Class for payment of such credit, claim, or contract.
(c) DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI hereof, no dividend or
distribution including, without limitation, any distribution paid
upon dissolution of the Trust or of any Series with respect to,
nor any redemption of, the Shares of any Series or Class of such
Series shall be effected by the Trust other than from the assets
held with respect to such Series, nor, except as specifically
provided in Section 7 of this Article III, shall any Shareholder
of any particular Series otherwise have any right or claim
against the assets held with respect to any other Series or the
Trust generally except, in the case of a right or claim against
the assets held with respect to any other Series, to the extent
that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Board of Trustees shall
have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and
which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote
on a matter shall vote in the aggregate without differentiation
between the Shares of the separate Series, if any, or separate
Classes, if any; provided that (i) with respect to any matter
that affects only the interests of some but not all Series, then
only the Shares of such affected Series, voting separately, shall
be entitled to vote on the matter, (ii) with respect to any
matter that affects only the interests of some but not all
Classes, then only the Shares of such affected Classes, voting
separately, shall be entitled to vote on the matter; and (iii)
notwithstanding the foregoing, with respect to any matter as to
which the 1940 Act or other applicable law or regulation requires
voting, by Series or by Class, then the Shares of the Trust shall
vote as prescribed in such law or regulation.
(e) EQUALITY. Each Share of any particular Series shall
be equal to each other Share of such Series (subject to the rights
and preferences with respect to separate Classes of such Series).
(f) FRACTIONS. A fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share
of such Series, including rights with respect to voting, receipt
of dividends and distributions, redemption of Shares and
dissolution of the Trust or that Series.
(g) EXCHANGE PRIVILEGE. The Board of Trustees shall have
the authority to provide that the holders of Shares of any Series
shall have the right to exchange said Shares for Shares of one or
more other Series in accordance with such requirements and
procedures as may be established by the Board of Trustees, and in
accordance with the 1940 Act.
(h) COMBINATION OF SERIES OR CLASSES.
(i) The Board of Trustees shall have the
authority, without the approval, vote or consent of the
Shareholders of any Series, unless otherwise required by
applicable law, to combine the assets and liabilities held with
respect to any two or more Series into assets and liabilities
held with respect to a single Series; PROVIDED that upon
completion of such combination of Series, the interest of each
Shareholder, in the combined assets and liabilities held with
respect to the combined Series shall equal the interest of each
such Shareholder in the aggregate of the assets and liabilities
held with respect to the Series that were combined.
(ii) The Board of Trustees shall have the
authority, without the approval, vote or consent of the
Shareholders of any Series or Class, unless otherwise required by
applicable law, to combine, merge or otherwise consolidate the
Shares of two or more Classes of Shares of a Series with and/or
into a single Class of Shares of such Series, with such
designation, preference, conversion or other rights, voting
powers, restrictions, limitations as to dividends,
qualifications, terms and conditions of redemption and other
characteristics as the Trustees may determine; provided, however,
that the Trustees shall provide written notice to the affected
Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above may be
effected through share-for-share exchanges, transfers or sales of
assets, Shareholder in-kind redemptions and purchases, exchange
offers, or any other method approved by the Trustees.
(i) DISSOLUTION OR TERMINATION. Any particular Series
shall be dissolved upon the occurrence of the applicable dissolution
events set forth in Article VIII, Section 1 hereof. Upon
dissolution of a particular Series, the Trustees shall wind up
the affairs of such Series in accordance with Article VIII,
Section 1 hereof and thereafter, rescind the establishment and
designation thereof. The Board of Trustees shall terminate any
particular Class and rescind the establishment and designation
thereof: (i) upon approval by a majority of votes cast at a
meeting of the Shareholders of such Class, provided a quorum of
Shareholders of such Class are present, or by action of the
Shareholders of such Class by written consent without a meeting
pursuant to Article V, Section 3; or (ii) at the discretion of
the Board of Trustees either (A) at any time there are no Shares
outstanding of such Class, or (B) upon prior written notice to
the Shareholders of such Class; PROVIDED, HOWEVER, that upon the
rescission of the establishment and designation of any particular
Series, every Class of such Series shall thereby be terminated
and its establishment and designation rescinded. Each resolution
of the Board of Trustees pursuant to this Section 6(i) shall be
incorporated herein by reference upon adoption.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. No shareholder
as such shall be subject to any personal liability whatsoever to
any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. If any Shareholder or
former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or
liability of the Trust, by reason of a claim or demand relating
exclusively to his or her being or having been a Shareholder of
the Trust or a Shareholder of a particular Series thereof, and
not because of such Shareholder's actions or omissions, such
Shareholder or former Shareholder (or, in the case of a natural
person, his or her heirs, executors, administrators, or other
legal representatives or, in the case of a corporation or other
entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out of the
assets of the Trust or out of the assets of such Series thereof,
as the case may be, against all loss and expense, including
without limitation, attorneys' fees, arising from such claim or
demand; PROVIDED, HOWEVER, such indemnity shall not cover (i) any
taxes due or paid by reason of such Shareholder's ownership of
any Shares and (ii) expenses charged to a Shareholder pursuant to
Article IV, Section 5 hereof.
ARTICLE IV.
THE BOARD OF TRUSTEES
Section 1. ....NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION.
(a) In accordance with Section 3801 of the DSTA, each
Trustee shall become a Trustee and be bound by this Declaration of
Trust and the By-Laws when such Person signs this Declaration of
Trust as a trustee and/or is duly elected or appointed, qualified
and serving on the Board of Trustees in accordance with the
provisions hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with the terms
hereof.
(b) The number of Trustees constituting the entire Board
of Trustees may be fixed from time to time by the vote of a majority
of the then Board of Trustees; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than one (1) nor more than
fifteen (15). The number of Trustees shall not be reduced so as
to shorten the term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of
the Trust or until such Trustee's earlier death, resignation,
removal, retirement or inability otherwise to serve, or, if
sooner than any of such events, until the next meeting of
Shareholders called for the purpose of electing Trustees or
consent of Shareholders in lieu thereof for the election of
Trustees, and until the election and qualification of his or her
successor.
(d) Any Trustee may be removed, with or without cause,
by the Board of Trustees, by action of a majority of the Trustees
then in office, or by vote of the Shareholders at any meeting called
for that purpose.
(e) Any Trustee may resign at any time by giving written
notice to the secretary of the Trust or to a meeting of the Board
of Trustees. Such resignation shall be effective upon receipt,
unless specified to be effective at some later time.
Section 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. To the extent not inconsistent with the provisions of
the 1940 Act, any action that may be taken at any meeting of the
Board of Trustees or any committee thereof may be taken without a
meeting and without prior written notice if a consent or consents
in writing setting forth the action so taken is signed by the
Trustees having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting
at which all Trustees on the Board of Trustees or any committee
thereof, as the case may be, were present and voted. Written
consents of the Trustees may be executed in one or more
counterparts. A consent transmitted by electronic transmission
(as defined in Section 3806 of the DSTA) by a Trustee shall be
deemed to be written and signed for purposes of this Section.
All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM AND
REQUIRED VOTE.
(a) POWERS. Subject to the provisions of this Declaration
of Trust, the business of the Trust (including every Series thereof)
shall be managed by or under the direction of the Board of
Trustees, and such Board of Trustees shall have all powers
necessary or convenient to carry out that responsibility. The
Board of Trustees shall have full power and authority to do any
and all acts and to make and execute any and all contracts and
instruments that it may consider necessary or appropriate in
connection with the operation and administration of the Trust
(including every Series thereof). The Board of Trustees shall
not be bound or limited by present or future laws or customs with
regard to investments by trustees or fiduciaries, but, subject to
the other provisions of this Declaration of Trust and the
By-Laws, shall have full authority and absolute power and control
over the assets and the business of the Trust (including every
Series thereof) to the same extent as if the Board of Trustees
was the sole owner of such assets and business in its own right,
including such authority, power and control to do all acts and
things as it, in its sole discretion, shall deem proper to
accomplish the purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to the requisite
vote for such actions as set forth in this Declaration of Trust
and the By-Laws: (1) adopt By-Laws not inconsistent with
applicable law or this Declaration of Trust; (2) amend, restate
and repeal such By-Laws, subject to and in accordance with the
provisions of such By-Laws; (3) fill vacancies on the Board of
Trustees in accordance with this Declaration of Trust and the
By-Laws; (4) elect and remove such officers and appoint and
terminate such agents as it considers appropriate, in accordance
with this Declaration of Trust and the By-Laws; (5) establish and
terminate one or more committees of the Board of Trustees
pursuant to the By-Laws; (6) place Trust Property in custody as
required by the 1940 Act, employ one or more custodians of the
Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust
Property with a custodian or a custodial system meeting the
requirements of the 1940 Act; (7) retain a transfer agent,
dividend disbursing agent, a shareholder servicing agent or
administrative services agent, or any number thereof or any other
service provider as deemed appropriate; (8) provide for the
issuance and distribution of shares of beneficial interest in the
Trust or other securities or financial instruments directly or
through one or more Principal Underwriters or otherwise; (9)
retain one or more Investment Adviser(s); (10) re-acquire and
redeem Shares on behalf of the Trust and transfer Shares pursuant
to applicable law; (11) set record dates for the determination of
Shareholders with respect to various matters, in the manner
provided in Article V, Section 4 of this Declaration of Trust;
(12) declare and pay dividends and distributions to Shareholders
from the Trust Property, in accordance with this Declaration of
Trust and the By-Laws; (13) establish, designate and redesignate
from time to time, in accordance with the provisions of Article
III, Section 6 hereof, any Series or Class of the Trust or of a
Series; (14) hire personnel as staff for the Board of Trustees
or, for those Trustees who are not Interested Persons of the
Trust, the Investment Adviser, or the Principal Underwriter, set
the compensation to be paid by the Trust to such personnel,
exercise exclusive supervision of such personnel, and remove one
or more of such personnel, at the discretion of the Board of
Trustees; (15) retain special counsel, other experts and/or
consultants for the Board of Trustees, for those Trustees who are
not Interested Persons of the Trust, the Investment Adviser, or
the Principal Underwriter, and/or for one or more of the
committees of the Board of Trustees, set the compensation to be
paid by the Trust to such special counsel, other experts and/or
consultants, and remove one or more of such special counsel,
other experts and/or consultants, at the discretion of the Board
of Trustees; (16) engage in and prosecute, defend, compromise,
abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating to the
Trust, and out of the assets of the Trust to pay or to satisfy
any debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include,
without limitation, the power of the Trustees, or any appropriate
committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding,
dispute, claim or demand, derivative or otherwise, brought by any
person, including a shareholder in its own name or in the name of
the Trust, whether or not the Trust or any of the Trustees may be
named individually therein or the subject matter arises by reason
of business for or on behalf of the Trust; and (17) in general
delegate such authority as it considers desirable to any Trustee
or officer of the Trust, to any committee of the Trust, to any
agent or employee of the Trust or to any custodian, transfer,
dividend disbursing, shareholder servicing agent, Principal
Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this
Section 3(a) are without prejudice to any other powers of the
Board of Trustees set forth in this Declaration of Trust and the
By-Laws. Any determination as to what is in the best interests
of the Trust or any Series or Class thereof and its Shareholders
made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Board of
Trustees.
(b) OTHER BUSINESS INTERESTS. The Trustees shall devote
to the affairs of the Trust (including every Series thereof) such
time as may be necessary for the proper performance of their duties
hereunder, but neither the Trustees nor the officers, directors,
shareholders, partners or employees of the Trustees, if any,
shall be expected to devote their full time to the performance of
such duties. The Trustees, or any Affiliate, shareholder,
officer, director, partner or employee thereof, or any Person
owning a legal or beneficial interest therein, may engage in, or
possess an interest in, any business or venture other than the
Trust or any Series thereof, of any nature and description,
independently or with or for the account of others. None of the
Trust, any Series thereof or any Shareholder shall have the right
to participate or share in such other business or venture or any
profit or compensation derived therefrom.
(c) QUORUM AND REQUIRED VOTE. At all meetings of the
Board of Trustees, a majority of the Board of Trustees then in
office shall be present in person in order to constitute a quorum
for the transaction of business. A meeting at which a quorum is
initially present may continue to transact business
notwithstanding the departure of Trustees from the meeting, if
any action taken is approved by at least a majority of the
required quorum for that meeting. Subject to Article III,
Sections 1 and 6 of the By-Laws and except as otherwise provided
herein or required by applicable law, the vote of not less than a
majority of the Trustees present at a meeting at which a quorum
is present shall be the act of the Board of Trustees.
Section 4. PAYMENT OF EXPENSES BY THE TRUST. Subject to the
provisions of Article III, Section 6 hereof, an authorized
officer of the Trust shall pay or cause to be paid out of the
principal or income of the Trust or any particular Series or
Class thereof, or partly out of the principal and partly out of
the income of the Trust or any particular Series or Class
thereof, and charge or allocate the same to, between or among
such one or more of the Series or Classes that may be established
or designated pursuant to Article III, Section 6 hereof, as such
officer deems fair, all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection with the
maintenance or operation of the Trust or a particular Series or
Class thereof, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and
such expenses, fees, charges, taxes and liabilities associated
with the services of the Trust's officers, employees, Investment
Adviser(s), Principal Underwriter, auditors, counsel, custodian,
sub-custodian, transfer agent, dividend disbursing agent,
shareholder servicing agent, and such other agents or independent
contractors and such other expenses, fees, charges, taxes and
liabilities as the Board of Trustees may deem necessary or proper
to incur.
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Board of
Trustees shall have the power, as frequently as it may determine,
to cause any Shareholder to pay directly, in advance or arrears,
an amount fixed from time to time by the Board of Trustees or an
officer of the Trust for charges of the Trust's custodian or
transfer, dividend disbursing, shareholder servicing or similar
agent which are not customarily charged generally to the Trust, a
Series or a Class, where such services are provided to such
Shareholder individually, rather than to all Shareholders
collectively, by setting off such amount due from such
Shareholder from the amount of (i) declared but unpaid dividends
or distributions owed such Shareholder, or (ii) proceeds from the
redemption by the Trust of Shares from such Shareholder pursuant
to Article VI hereof.
Section 6. OWNERSHIP OF TRUST PROPERTY. Legal title to all
of the Trust Property shall at all times be vested in the Trust,
except that the Board of Trustees shall have the power to cause
legal title to any Trust Property to be held by or in the name of
any Person as nominee, on such terms as the Board of Trustees may
determine, in accordance with applicable law.
Section 7. .SERVICE CONTRACTS.
(a) Subject to this Declaration of Trust, the By-Laws
and the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive investment
advisory or investment management services for the Trust or for
any Series thereof with any corporation, trust, association or
other organization, including any Affiliate; and any such contract
may contain such other terms as the Board of Trustees may determine,
including without limitation, delegation of authority to the
Investment Adviser to determine from time to time without prior
consultation with the Board of Trustees what securities and other
instruments or property shall be purchased or otherwise acquired,
owned, held, invested or reinvested in, sold, exchanged,
transferred, mortgaged, pledged, assigned, negotiated, or
otherwise dealt with or disposed of, and what portion, if any, of
the Trust Property shall be held uninvested and to make changes
in the Trust's or a particular Series' investments, or to engage
in such other activities, including administrative services, as
may specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from
time to time, contract with any Person, including any Affiliate,
appointing it or them as the exclusive or nonexclusive placement
agent, distributor or Principal Underwriter for the Shares of
beneficial interest of the Trust or one or more of the Series or
Classes thereof, or for other securities or financial instruments
to be issued by the Trust, or appointing it or them to act as the
administrator, fund accountant or accounting agent, custodian,
transfer agent, dividend disbursing agent and/or shareholder
servicing agent for the Trust or one or more of the Series or
Classes thereof.
(c) The Board of Trustees is further empowered, at any
time and from time to time, to contract with any Persons, including
any Affiliates, to provide such other services to the Trust or one
or more of its Series, as the Board of Trustees determines to be in
the best interests of the Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances shall
affect the validity of any of the contracts provided for in this
Article IV, Section 7, or disqualify any Shareholder, Trustee,
employee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust, any
Series thereof or the Shareholders, provided that the
establishment of and performance of each such contract is
permissible under the 1940 Act, and provided further that such
Person is authorized to vote upon such contract under the 1940
Act:
(i) the fact that any of the Shareholders, Trustees,
employees or officers of the Trust is a
shareholder, director, officer, partner,
trustee, employee, manager, Adviser, placement
agent, Principal Underwriter, distributor, or
Affiliate or agent of or for any Person, or
for any parent or Affiliate of any Person,
with which any type of service contract
provided for in this Article IV, Section 7
may have been or may hereafter be made, or
that any such Person, or any parent or
Affiliate thereof, is a Shareholder or has an
interest in the Trust, or
(ii) the fact that any Person with which any type of
service contract provided for in this Article
IV, Section 7 may have been or may hereafter be
made also has such a service contract with
one or more other Persons, or has other
business or interests.
(e) Every contract referred to in this Section 7 is required
to comply with this Declaration of Trust, the By-Laws, the 1940 Act,
other applicable law and any stipulation by resolution of the Board of
Trustees.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. Subject to the provisions of
Article III, Section 6 hereof, the Shareholders shall have the
power to vote only (i) on such matters required by this
Declaration of Trust, the By-Laws, the 1940 Act, other applicable
law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on
such other matters as the Board of Trustees may consider
necessary or desirable. Subject to Article III hereof, the
Shareholder of record (as of the record date established pursuant
to Section 4 of this Article V) of each Share shall be entitled
to one vote for each full Share, and a fractional vote for each
fractional Share. Shareholders shall not be entitled to
cumulative voting in the election of Trustees or on any other
matter.
Section 2. QUORUM AND REQUIRED VOTE.
(a) Forty percent (40%) of the outstanding Shares entitled
to vote at a Shareholders' meeting, which are present in person or
represented by proxy, shall constitute a quorum at the
Shareholders' meeting, except when a larger quorum is required by
this Declaration of Trust, the By-Laws, applicable law or the
requirements of any securities exchange on which Shares are
listed for trading, in which case such quorum shall comply with
such requirements. When a separate vote by one or more Series or
Classes is required, forty percent (40%) of the outstanding
Shares of each such Series or Class entitled to vote at a
Shareholders' meeting of such Series or Class, which are present
in person or represented by proxy, shall constitute a quorum at
the Shareholders' meeting of such Series or Class, except when a
larger quorum is required by this Declaration of Trust, the
By-Laws, applicable law or the requirements of any securities
exchange on which Shares of such Series or Class are listed for
trading, in which case such quorum shall comply with such
requirements.
(b) Subject to the provisions of Article III, Section 6(d),
when a quorum is present at any meeting, a majority of the votes
cast shall decide any questions and a plurality shall elect a Trustee,
except when a larger vote is required by any provision of this
Declaration of Trust or the By-Laws or by applicable law.
Pursuant to Article III, Section 6(d) hereof, where a separate
vote by Series and, if applicable, by Class is required, the
preceding sentence shall apply to such separate votes by Series
and Classes.
(c) Abstentions and broker non-votes will be treated as
votes present at a Shareholders' meeting; abstentions and broker
non-votes will not be treated as votes cast at such meeting.
Abstentions and broker non-votes, therefore (i) will be included
for purposes of determining whether a quorum is present; and (ii)
will have no effect on proposals that require a plurality for
approval, or on proposals requiring an affirmative vote of a
majority of votes cast for approval.
Section 3. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. Any action which may be taken at any meeting of
Shareholders may be taken without a meeting if a consent or
consents in writing setting forth the action so taken is or are
signed by the holders of a majority of the Shares entitled to
vote on such action (or such different proportion thereof as
shall be required by law, the Declaration of Trust or the By-Laws
for approval of such action) and is or are received by the
secretary of the Trust either: (i) by the date set by resolution
of the Board of Trustees for the shareholder vote on such action;
or (ii) if no date is set by resolution of the Board, within 30
days after the record date for such action as determined by
reference to Article V, Section 4(b) hereof. The written consent
for any such action may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which when
taken together shall constitute one and the same instrument. A
consent transmitted by electronic transmission (as defined in the
DSTA) by a Shareholder or by a Person or Persons authorized to
act for a Shareholder shall be deemed to be written and signed
for purposes of this Section. All such consents shall be filed
with the secretary of the Trust and shall be maintained in the
Trust's records. Any Shareholder that has given a written
consent or the Shareholder's proxyholder or a personal
representative of the Shareholder or its respective proxyholder
may revoke the consent by a writing received by the secretary of
the Trust either: (i) before the date set by resolution of the
Board of Trustees for the shareholder vote on such action; or
(ii) if no date is set by resolution of the Board, within 30 days
after the record date for such action as determined by reference
to Article V, Section 4(b) hereof.
Section 4. RECORD DATES.
(a) For purposes of determining the Shareholders entitled
to notice of, and to vote at, any meeting of Shareholders, the Board
of Trustees may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted by the Board of Trustees, and which record date shall
not be more than one hundred and twenty (120) days nor less than
ten (10) days before the date of any such meeting. A
determination of Shareholders of record entitled to notice of or
to vote at a meeting of Shareholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Trustees may fix a new record date for the adjourned meeting and
shall fix a new record date for any meeting that is adjourned for
more than sixty (60) days from the date set for the original
meeting. For purposes of determining the Shareholders entitled
to vote on any action without a meeting, the Board of Trustees
may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted
by the Board of Trustees, and which record date shall not be more
than thirty (30) days after the date upon which the resolution
fixing the record date is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record
date:
(i) the record date for determining Shareholders
entitled to notice of, and to vote at, a meeting
of Shareholders shall be at the close of
business on the day next preceding the day on
which notice is given or, if notice is
waived, at the close of business on the day
next preceding the day on which the meeting
is held.
(ii) the record date for determining Shareholders
entitled to vote on any action by consent in
writing without a meeting of Shareholders,
(1) when no prior action by the Board of Trustees
has been taken, shall be the day on which the
first signed written consent setting forth
the action taken is delivered to the Trust,
or (2) when prior action of the Board of
Trustees has been taken, shall be at the
close of business on the day on which the
Board of Trustees adopts the resolution
taking such prior action.
(c) For the purpose of determining the Shareholders of the
Trust or any Series or Class thereof who are entitled to receive
payment of any dividend or of any other distribution of assets of
the Trust or any Series or Class thereof (other than in
connection with a dissolution of the Trust or a Series, a merger,
consolidation, conversion, reorganization, or any other
transactions, in each case that is governed by Article VIII of
the Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which record
date shall not precede the date upon which the
resolution fixing the record date is adopted,
and which record date shall not be more than
sixty (60) days before the date for the
payment of such dividend and/or such other
distribution;
(ii) adopt standing resolutions fixing record dates
and related payment dates at periodic intervals
of any duration for the payment of such dividend
and/or such other distribution; and/or
(iii) delegate to an appropriate officer or officers of
the Trust the determination of such periodic record
and/or payments dates with respect to such
dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding the
Board of Trustees from setting different record dates for
different Series or Classes.
Section 5. ADDITIONAL PROVISIONS. The By-Laws may include
further provisions for Shareholders' votes, meetings and related
matters.
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS.
(a) Subject to Article III, Section 6 hereof, the Board
of Trustees shall have the power to determine from time to time the
offering price for authorized, but unissued, Shares of beneficial
interest of the Trust or any Series or Class thereof,
respectively, that shall yield to the Trust or such Series or
Class not less than the net asset value thereof, in addition to
any amount of applicable sales charge to be paid to the Principal
Underwriter or the selling broker or dealer in connection with
the sale of such Shares, at which price the Shares of the Trust
or such Series or Class, respectively, shall be offered for sale,
subject to any other requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board
of Trustees may, subject to the 1940 Act, prescribe and shall set
forth in the By-Laws, this Declaration of Trust or in a
resolution of the Board of Trustees such bases and time for
determining the net asset value per Share of the Trust or any
Series or Class thereof, or net income attributable to the Shares
of the Trust or any Series or Class thereof or the declaration
and payment of dividends and distributions on the Shares of the
Trust or any Series or Class thereof, as it may deem necessary or
desirable, and such dividends and distributions may vary between
the Classes to reflect differing allocations of the expenses of
the Trust between such Classes to such extent and for such
purposes as the Trustees may deem appropriate.
(c) The Shareholders of the Trust or any Series or Class,
if any, shall be entitled to receive dividends and distributions,
when, if and as declared by the Board of Trustees with respect
thereto, provided that with respect to Classes, such dividends
and distributions shall comply with the 1940 Act. The right of
Shareholders to receive dividends or other distributions on
Shares of any Class may be set forth in a plan adopted by the
Board of Trustees and amended from time to time pursuant to the
1940 Act. No Share shall have any priority or preference over
any other Share of the Trust with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to
Article VIII, Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into
Series thereof, no Share of a particular Series
shall have any priority or preference over any
other Share of the same Series with respect to
dividends or distributions paid in the
ordinary course of business or distributions
upon dissolution of the Trust or of such
Series made pursuant to Article VIII, Section
1 hereof;
(ii) if the Shares of the Trust are divided into Classes
thereof, no Share of a particular Class shall have
any priority or preference over any other Share
of the same Class with respect to dividends
or distributions paid in the ordinary course
of business or distributions upon dissolution
of the Trust made pursuant to Article VIII,
Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes
thereof, no Share of a particular Class of such
Series shall have any priority or preference over
any other Share of the same Class of such
Series with respect to dividends or
distributions paid in the ordinary course of
business or distributions upon dissolution of
such Series made pursuant to Article VIII,
Section 1 hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular Class of the Trust, a
particular Series, or a particular Class of a Series from the
Trust Property held with respect to the Trust, such Series or
such Class, respectively, according to the number of Shares of
the Trust, such Series or such Class held of record by such
Shareholders on the record date for any dividend or distribution;
provided however, that
(iv) if the Shares of the Trust are divided into
Series thereof, all dividends and distributions
from the Trust Property and, if applicable, held
with respect to such Series, shall be distributed
to each Series thereof according to the net
asset value computed for such Series and
within such particular Series, shall be
distributed ratably to the Shareholders of
such Series according to the number of Shares
of such Series held of record by such
Shareholders on the record date for any
dividend or distribution; and
(v) if the Shares of the Trust or of a Series are
divided into Classes thereof, all dividends and
distributions from the Trust Property and, if
applicable, held with respect to the Trust or
such Series, shall be distributed to each
Class thereof according to the net asset
value computed for such Class and within such
particular Class, shall be distributed
ratably to the Shareholders of such Class
according to the number of Shares of such
Class held of record by such Shareholders on
the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set aside out of
any funds of the Trust, or the applicable Series thereof,
available for dividends such sum or sums as the Board of Trustees
may from time to time, in its absolute discretion, think proper
as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
Trust, or any Series thereof, or for such other lawful purpose as
the Board of Trustees shall deem to be in the best interests of
the Trust, or the applicable Series, as the case may be, and the
Board of Trustees may abolish any such reserve in the manner in
which the reserve was created.
Section 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER.
Unless otherwise provided in the prospectus of the Trust relating
to the Shares, as such prospectus may be amended from time to
time:
(a) The Trust shall purchase such Shares as are offered
by any Shareholder for redemption upon the presentation of a proper
instrument of transfer together with a request directed to the
Trust or a Person designated by the Trust that the Trust purchase
such Shares and/or in accordance with such other procedures for
redemption as the Board of Trustees may from time to time
authorize. If certificates have been issued to a Shareholder,
any request for redemption by such Shareholder must be
accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock transfer
stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset
value thereof (excluding any applicable redemption fee or sales load),
in accordance with this Declaration of Trust, the By-Laws, the
1940 Act and other applicable law. Payments for Shares so
redeemed by the Trust shall be made in cash, except payment for
such Shares may, at the option of the Board of Trustees, or such
officer or officers as it may duly authorize in its complete
discretion, be made in kind or partially in cash and partially in
kind. In case of any payment in kind, the Board of Trustees, or
its authorized officers, shall have absolute discretion as to
what security or securities of the Trust or the applicable Series
shall be distributed in kind and the amount of the same; and the
securities shall be valued for purposes of distribution at the
value at which they were appraised in computing the then current
net asset value of the Shares, provided that any Shareholder who
cannot legally acquire securities so distributed in kind shall
receive cash to the extent permitted by the 1940 Act.
Shareholders shall bear the expenses of in-kind transactions,
including, but not limited to, transfer agency fees, custodian
fees and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares
shall be made by the Trust to the Shareholder within seven days
after the date on which the redemption request is received in proper
form and/or such other procedures authorized by the Board of Trustees
are complied with; provided, however, that if payment shall be
made other than exclusively in cash, any securities to be
delivered as part of such payment shall be delivered as promptly
as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur within
such seven-day period. 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.
(d) The obligations of the Trust set forth in this Section
2 are subject to the provision that such obligations may be suspended
or postponed by the Board of Trustees (1) during any time the New
York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays; (2) if permitted by the rules of the
Commission, during periods when trading on the Exchange is
restricted; or (3) during any National Financial Emergency. The
Board of Trustees may, in its discretion, declare that the
suspension relating to a National Financial Emergency shall
terminate, as the case may be, on the first business day on which
the Exchange shall have reopened or the period specified above
shall have expired (as to which, in the absence of an official
ruling by the Commission, the determination of the Board of
Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any
Series or Class thereof to receive dividends or other distributions
on Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed, except the right of such
Shareholder to receive payment for such Shares, shall cease at
the time the purchase price of such Shares shall have been fixed,
as provided above.
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. At the
option of the Board of Trustees the Trust may, from time to time,
without the vote of the Shareholders, but subject to the 1940
Act, redeem Shares or authorize the closing of any Shareholder
account, subject to such conditions as may be established from
time to time by the Board of Trustees.
Section 4. TRANSFER OF SHARES. Shares shall be transferable
in accordance with the provisions of the By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. LIMITATION OF LIABILITY.
(a) For the purpose of this Article, "Agent" means any
Person who is or was a Trustee, officer, employee or other agent
of the Trust or is or was serving at the request of the Trust as
a trustee, director, officer, employee or other agent of another
foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; "Proceeding" means any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "Expenses" include
without limitation attorneys' fees and any expenses of
establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a bad faith
violation of the implied contractual covenant of good faith and
fair dealing, for such Agent's own willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of such Agent (such conduct referred to herein as
"Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to
the fullest extent that limitations on the liability of Agents are
permitted by the DSTA, the Agents shall not be responsible or
liable in any event for any act or omission of any other Agent of
the Trust or any Investment Adviser or Principal Underwriter of
the Trust.
(d) No Agent, when acting in its respective capacity as
such, shall be personally liable to any Person, other than the Trust
a Shareholder to the extent provided in subsections (b) and (c)
or of this Section 1, for any act, omission or obligation of the
Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall,
in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of
account or other records of the Trust, upon an opinion of
counsel, or upon reports made to the Trust by any of its officers
or employees or by the Investment Adviser, the Principal
Underwriter, any other Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with
reasonable care by the Trustees, officers or employees of the
Trust, regardless of whether such counsel or expert may also be a
Trustee. The officers and Trustees may obtain the advice of
counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, the By-Laws, applicable
law and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in
accordance with such advice, records and/or reports and no
inference concerning liability shall arise from a failure to
follow such advice, records and/or reports. The officers and
Trustees shall not be required to give any bond hereunder, nor
any surety if a bond is required by applicable law.
(f) The failure to make timely collection of dividends or
interest, or to take timely action with respect to entitlements,
on the Trust's securities issued in emerging countries, shall not
be deemed to be negligence or other fault on the part of any
Agent, and no Agent shall have any liability for such failure or
for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect
the liquidity of the Trust's assets or from any war or political
act of any foreign government to which such assets might be
exposed, except, in the case of a Trustee or officer, for
liability resulting from such Trustee's or officer's
Disqualifying Conduct.
(g) The limitation on liability contained in this Article
applies to events occurring at the time a Person serves as an
Agent whether or not such Person is an Agent at the time of any
Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely
affect any right or protection of an Agent that exists at the
time of such amendment or repeal.
Section 2. INDEMNIFICATION.
(a) INDEMNIFICATION BY TRUST. The Trust shall indemnify,
out of Trust Property, to the fullest extent permitted under
applicable law, any Person who was or is a party or is threatened to
be made a party to any Proceeding by reason of the fact that such
Person is or was an Agent of the Trust, against Expenses, judgments,
fines, settlements and other amounts actually and reasonably
incurred in connection with such Proceeding if such Person acted
in good faith or in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such Person was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or plea of nolo contendere or its
equivalent shall not of itself create a presumption that the
Person did not act in good faith or that the Person had
reasonable cause to believe that the Person's conduct was
unlawful.
(b) EXCLUSION OF INDEMNIFICATION. Notwithstanding any
provision to the contrary contained herein, there shall be no
right to indemnification for any liability arising by reason of the
Agent's Disqualifying Conduct. In respect of any claim, issue or
matter as to which that Person shall have been adjudged to be
liable in the performance of that Person's duty to the Trust or
the Shareholders, indemnification shall be made only to the
extent that the court in which that action was brought shall
determine, upon application or otherwise, that in view of all the
circumstances of the case, that Person was not liable by reason
of that Person's Disqualifying Conduct.
(c) REQUIRED APPROVAL. Any indemnification under this
Article shall be made by the Trust if authorized in the specific
case on a determination that indemnification of the Agent is
proper in the circumstances by (i) a final decision on the merits
by a court or other body before whom the proceeding was brought that
the Agent was not liable by reason of Disqualifying Conduct
(including, but not limited to, dismissal of either a court
action or an administrative proceeding against the Agent for
insufficiency of evidence of any Disqualifying Conduct) or, (ii)
in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the Agent was not liable
by reason of Disqualifying Conduct, by (1) the vote of a majority
of a quorum of the Trustees who are not (x) "interested persons"
of the Trust as defined in Section 2(a)(19) of the 1940 Act, (y)
parties to the proceeding, or (z) parties who have any economic
or other interest in connection with such specific case (the
"disinterested, non-party Trustees"); or (2) by independent legal
counsel in a written opinion.
(d) ADVANCEMENT OF EXPENSES. Expenses incurred by an
Agent in defending any Proceeding may be advanced by the Trust
before the final disposition of the Proceeding on receipt of an
undertaking by or on behalf of the Agent to repay the amount of
the advance if it shall be determined ultimately that the Agent
is not entitled to be indemnified as authorized in this Article;
provided, that at least one of the following conditions for the
advancement of expenses is met: (i) the Agent shall provide a
security for his undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or (iii)
a majority of a quorum of the disinterested, non-party Trustees
of the Trust, or an independent legal counsel in a written
opinion, shall determine, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the Agent ultimately will be found
entitled to indemnification.
(e) OTHER CONTRACTUAL RIGHTS. Nothing contained in this
Article shall affect any right to indemnification to which Persons
other than Trustees and officers of the Trust or any subsidiary thereof
may be entitled by contract or otherwise.
(f) FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This Article
does not apply to any Proceeding against any trustee, investment
manager or other fiduciary of an employee benefit plan in that
Person's capacity as such, even though that Person may also be an
Agent of the Trust as defined in Section 1 of this Article.
Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or
other fiduciary may be entitled by contract or otherwise which
shall be enforceable to the extent permitted by applicable law
other than this Article.
Section 3. INSURANCE. To the fullest extent permitted by
applicable law, the Board of Trustees shall have the authority to
purchase with Trust Property, insurance for liability and for all
Expenses reasonably incurred or paid or expected to be paid by an
Agent in connection with any Proceeding in which such Agent
becomes involved by virtue of such Agent's actions, or omissions
to act, in its capacity or former capacity with the Trust,
whether or not the Trust would have the power to indemnify such
Agent against such liability.
Section 4. DERIVATIVE ACTIONS. Subject to the requirements
set forth in Section 3816 of the DSTA, a Shareholder or
Shareholders may bring a derivative action on behalf of the Trust
only if the Shareholder or Shareholders first make a pre-suit
demand upon the Board of Trustees to bring the subject action
unless an effort to cause the Board of Trustees to bring such
action is excused. A demand on the Board of Trustees shall only
be excused if a majority of the Board of Trustees, or a majority
of any committee established to consider the merits of such
action, has a material personal financial interest in the action
at issue. A Trustee shall not be deemed to have a material
personal financial interest in an action or otherwise be
disqualified from ruling on a Shareholder demand by virtue of the
fact that such Trustee receives remuneration from his or her
service on the Board of Trustees of the Trust or on the boards of
one or more investment companies with the same or an affiliated
investment adviser or underwriter.
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. DISSOLUTION OF TRUST OR SERIES. The Trust and
each Series shall have perpetual existence, except that the Trust
(or a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders
of not less than a majority of the Shares of the Trust cast, or
(ii) at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of the Trust, or (B) upon
prior written notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote
of the holders of not less than a majority of the Shares of such
Series cast, or (ii) at the discretion of the Board of Trustees
either (A) at any time there are no Shares outstanding of such
Series, or (B) upon prior written notice to the Shareholders of
such Series; or
(c) With respect to the Trust (or a particular Series),
upon the occurrence of a dissolution or termination event pursuant
to any other provision of this Declaration of Trust (including Article
VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that causes
the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as
the case may be), the Board of Trustees shall (in accordance with
Section 3808 of the DSTA) pay or make reasonable provision to pay
all claims and obligations of the Trust and/or each Series (or
the particular Series, as the case may be), including all
contingent, conditional or unmatured claims and obligations known
to the Trust, and all claims and obligations which are known to
the Trust, but for which the identity of the claimant is
unknown. If there are sufficient assets held with respect to the
Trust and/or each Series of the Trust (or the particular Series,
as the case may be), such claims and obligations shall be paid in
full and any such provisions for payment shall be made in full.
If there are insufficient assets held with respect to the Trust
and/or each Series of the Trust (or the particular Series, as the
case may be), such claims and obligations shall be paid or
provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets
available therefor. Any remaining assets (including, without
limitation, cash, securities or any combination thereof) held
with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be) shall be distributed to
the Shareholders of the Trust and/or each Series of the Trust (or
the particular Series, as the case may be) ratably according to
the number of Shares of the Trust and/or such Series thereof (or
the particular Series, as the case may be) held of record by the
several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the Trust
or a Series are divided into Classes thereof, any remaining
assets (including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust or such
Series, as applicable, shall be distributed to each Class of the
Trust or such Series according to the net asset value computed
for such Class and within such particular Class, shall be
distributed ratably to the Shareholders of such Class according
to the number of Shares of such Class held of record by the
several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance
with Section 3808 of the DSTA and its termination, any one (1)
Trustee shall execute, and cause to be filed, a certificate of
cancellation, with the office of the Secretary of State of the
State of Delaware in accordance with the provisions of Section
3810 of the DSTA.
Section 2. MERGER OR CONSOLIDATION; CONVERSION;
REORGANIZATION.
(a) MERGER OR CONSOLIDATION. Pursuant to an agreement
of merger or consolidation, the Board of Trustees, by vote of a
majority of the Trustees, may cause the Trust to merge or consolidate
with or into one or more statutory trusts or "other business entities"
(as defined in Section 3801 of the DSTA) formed or organized or
existing under the laws of the State of Delaware or any other
state of the United States or any foreign country or other
foreign jurisdiction. Any such merger or consolidation shall not
require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees
shall provide at least thirty (30) days' prior written notice to
the Shareholders of such merger or consolidation. By reference
to Section 3815(f) of the DSTA, any agreement of merger or
consolidation approved in accordance with this Section 2(a) may,
without a Shareholder vote, unless required by the 1940 Act, the
requirements of any securities exchange on which Shares are
listed for trading or any other provision of this Declaration of
Trust or the By-Laws, effect any amendment to this Declaration of
Trust or the By-Laws or effect the adoption of a new governing
instrument if the Trust is the surviving or resulting statutory
trust in the merger or consolidation, which amendment or new
governing instrument shall be effective at the effective time or
date of the merger or consolidation. In all respects not
governed by the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are
listed for trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to
accomplish a merger or consolidation, including the power to
create one or more separate statutory trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares
into beneficial interests in such separate statutory trust or
trusts. Upon completion of the merger or consolidation, if the
Trust is the surviving or resulting statutory trust, any one (1)
Trustee shall execute, and cause to be filed, a certificate of
merger or consolidation in accordance with Section 3815 of the
DSTA.
(b) CONVERSION. The Board of Trustees, by vote of a
majority of the Trustees, may cause (i) the Trust to convert to an
"other business entity" (as defined in Section 3801 of the DSTA)
formed or organized under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DSTA; (ii) the Shares of
the Trust or any Series to be converted into beneficial interests
in another statutory trust (or series thereof) created pursuant to
this Section 2 of this Article VIII, or (iii) the Shares to be
exchanged under or pursuant to any state or federal statute to
the extent permitted by law. Any such statutory conversion,
Share conversion or Share exchange shall not require the vote of
the Shareholders unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall provide at
least thirty (30) days' prior written notice to the Shareholders
of the Trust of any conversion of Shares of the Trust pursuant to
Subsections (b)(i) or (b)(ii) of this Section 2 or exchange of
Shares of the Trust pursuant to Subsection (b)(iii) of this
Section 2, and at least thirty (30) days' prior written notice to
the Shareholders of a particular Series of any conversion of
Shares of such Series pursuant to Subsection (b)(ii) of this
Section 2 or exchange of Shares of such Series pursuant to
Subsection (b)(iii) of this Section 2. In all respects not
governed by the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are
listed for trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to
accomplish a statutory conversion, Share conversion or Share
exchange, including the power to create one or more separate
statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred
and to provide for the conversion of Shares of the Trust or any
Series thereof into beneficial interests in such separate
statutory trust or trusts (or series thereof).
(c) REORGANIZATION. The Board of Trustees, by vote of a
majority of the Trustees, may cause the Trust to sell, convey and
transfer all or substantially all of the assets of the Trust
("sale of Trust assets") or all or substantially all of the assets
associated with any one or more Series ("sale of such Series'
assets"), to another trust, statutory trust, partnership, limited
partnership, limited liability company, corporation or other
association organized under the laws of any state, or to one or
more separate series thereof, or to the Trust to be held as
assets associated with one or more other Series of the Trust, in
exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the
Trust, Shares of such other Series) with such sale, conveyance
and transfer either (a) being made subject to, or with the
assumption by the transferee of, the liabilities associated with
the Trust or the liabilities associated with the Series the
assets of which are so transferred, as applicable, or (b) not
being made subject to, or not with the assumption of, such
liabilities. Any such sale, conveyance and transfer shall not
require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees
shall provide at least thirty (30) days' prior written notice to
the Shareholders of the Trust of any such sale of Trust assets,
and at least thirty (30) days prior written notice to the
Shareholders of a particular Series of any sale of such Series'
assets. Following such sale of Trust assets, the Board of
Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of the Trust (giving due effect to
the assets and liabilities associated with and any other
differences among the various Series the assets associated with
which have been so sold, conveyed and transferred, and due effect
to the differences among the various Classes within each such
Series). Following a sale of such Series' assets, the Board of
Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of such Series (giving due effect
to the differences among the various Classes within each such
Series). If all of the assets of the Trust have been so sold,
conveyed and transferred, the Trust shall be dissolved; and if
all of the assets of a Series have been so sold, conveyed and
transferred, such Series and the Classes thereof shall be
dissolved. In all respects not governed by the DSTA, the 1940
Act or other applicable law, the Board of Trustees shall have the
power to prescribe additional procedures necessary or appropriate
to accomplish such sale, conveyance and transfer, including the
power to create one or more separate statutory trusts to which
all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion of
Shares into beneficial interests in such separate statutory trust
or trusts.
Section 3. MASTER FEEDER STRUCTURE. If permitted by the 1940
Act, the Board of Trustees, by vote of a majority of the
Trustees, and without a Shareholder vote, may cause the Trust or
any one or more Series to convert to a master feeder structure (a
structure in which a feeder fund invests all of its assets in a
master fund, rather than making investments in securities
directly) and thereby cause existing Series of the Trust to
either become feeders in a master fund, or to become master funds
in which other funds are feeders.
Section 4. ABSENCE OF APPRAISAL OR DISSENTERS' RIGHTS. No
Shareholder shall be entitled, as a matter of right, to relief as
a dissenting Shareholder in respect of any proposal or action
involving the Trust or any Series or any Class thereof.
ARTICLE IX.
AMENDMENTS
Section 1. AMENDMENTS GENERALLY. This Declaration of Trust
may be restated and/or amended at any time by an instrument in
writing signed by not less than a majority of the Board of
Trustees and, to the extent required by this Declaration of
Trust, the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval of
such amendment by the Shareholders in accordance with Article
III, Section 6 hereof and Article V hereof. Any such restatement
and/or amendment hereto shall be effective immediately upon
execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated
and/or amended at any time by the Board of Trustees, without
Shareholder approval, to correct any inaccuracy contained
therein. Any such restatement and/or amendment of the
Certificate of Trust shall be executed by at least one (1)
Trustee and shall be effective immediately upon its filing with
the office of the Secretary of State of the State of Delaware or
upon such future date as may be stated therein.
ARTICLE X.
MISCELLANEOUS
Section 1. REFERENCES; HEADINGS; COUNTERPARTS. In this
Declaration of Trust and in any restatement hereof and/or
amendment hereto, references to this instrument, and all
expressions of similar effect to "herein," "hereof" and
"hereunder," shall be deemed to refer to this instrument as so
restated and/or amended. 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. Any
references herein to specific sections of the DSTA, the Code or
the 1940 Act shall refer to such sections as amended from time to
time or any successor sections thereof. This instrument may be
executed in any number of counterparts, each of which shall be
deemed an original.
Section 2. 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 applicable provisions of the 1940 Act and the Code. The
Trust shall be a Delaware statutory trust pursuant to the DSTA,
and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
statutory trust.
Section 3. ....PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are
severable, and if the Board of Trustees shall determine, with the
advice of counsel, that any of such provisions is in conflict with
the 1940 Act, the Code, the DSTA, or with other applicable laws
and regulations, the conflicting provision shall be deemed not to
have constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with such laws or
regulations; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of
Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this 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 this Declaration
of Trust in any jurisdiction.
Section 4. STATUTORY TRUST ONLY. It is the intention of the
Trustees to create hereby a statutory trust pursuant to the DSTA,
and thereby to create the relationship of trustee and beneficial
owners within the meaning of the DSTA between, respectively, the
Trustees and each Shareholder. It is not the intention of the
Trustees to create a general or limited partnership, limited
liability company, joint stock association, corporation,
bailment, or any form of legal relationship other than a
statutory trust pursuant to the DSTA. Nothing in this
Declaration of Trust shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners or members of
a joint stock association.
Section 5. USE OF THE NAMES "FRANKLIN," "▇▇▇▇▇▇▇▇▇,"
"FIDUCIARY TRUST," AND/OR "INSTITUTIONAL FIDUCIARY TRUST". The
Board of Trustees expressly agrees and acknowledges that the
names "Franklin," "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust," and
"Institutional Fiduciary Trust" are the sole property of Franklin
Resources, Inc. ("FRI"). FRI has granted to the Trust a
non-exclusive license to use such names as part of the name of
the Trust now and in the future. The Board of Trustees further
expressly agrees and acknowledges that the non-exclusive license
granted herein may be terminated by FRI if the Trust ceases to
use FRI or one of its Affiliates as Investment Adviser or to use
other Affiliates or successors of FRI for such purposes. In such
event, the nonexclusive license may be revoked by FRI and the
Trust shall cease using the names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," "Institutional Fiduciary Trust" or any name
misleadingly implying a continuing relationship between the Trust
and FRI or any of its Affiliates, as part of its name unless
otherwise consented to by FRI or any successor to its interests
in such names.
The Board of Trustees further understands and agrees that so
long as FRI and/or any future advisory Affiliate of FRI shall
continue to serve as the Trust's Investment Adviser, other
registered open- or closed-end investment companies ("funds") as
may be sponsored or advised by FRI or its Affiliates shall have
the right permanently to adopt and to use the names "Franklin",
"▇▇▇▇▇▇▇▇▇," "Fiduciary Trust" and/or "Institutional Fiduciary
Trust" in their names and in the names of any series or Class of
shares of such funds.
IN WITNESS WHEREOF, the Trustees of Franklin Capital Growth
Fund named below do hereby make and enter into this Agreement and
Declaration of Trust as of the date first written above.
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/s/ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. HOLIDAY
▇▇▇ ▇. ▇▇▇▇, Trustee ▇▇▇▇▇ ▇. Holiday, Trustee
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