AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE PRODUCTS TRUST
A DELAWARE STATUTORY TRUST
TABLE OF CONTENTS
PAGE
ARTICLE I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS......1
Section 1 Name ............................................... 1
Section 2 Offices of the Trust ................................2
Section 3 Registered Agent and Registered Office ..............2
Section 4 Definitions .........................................2
ARTICLE II PURPOSE OF TRUST .......................................4
ARTICLE III SHARES .................................................7
Section 1 Division of Beneficial Interest .....................7
Section 2 Ownership of Shares .................................9
Section 3 Sale of Shares ......................................9
Section 4.Status of Shares and Limitation of Personal Liability 9
Section 5.Power of Board of Trustees to Make Tax Status Election 10
Section 6.Establishment and Designation of Series and Classes 10
Section 7...................Indemnification of Shareholders 14
ARTICLE IV THE BOARD OF TRUSTEES ...................................14
Section 1..Number, Election, Term, Removal and Resignation.......14
Section 2.Trustee Action by Written Consent Without a Meeting ...15
Section 3.Powers; Other Business Interests; Quorum and Required Vote...15
Section 4 Payment of Expenses by the Trust .....................17
Section 5 Payment of Expenses by Shareholders ..................18
Section 6 Ownership of Trust Property ..........................18
Section 7 Service Contracts ....................................18
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS ................19
Section 1 Voting Powers ........................................19
Section 2 Quorum and Required Vote .............................19
Section 3. Shareholder Action by Written Consent Without a Meeting ...20
Section 4 Record Dates .........................................20
Section 5 Additional Provisions ................................22
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS ..................................22
Section 1.Determination of Net Asset Value, Net Income and Distributions. 22
Section 2 Redemptions at the Option of a Shareholder ...........24
Section 3 Redemptions at the Option of the Trust ...............25
Section 4 Transfer of Shares ...................................25
ARTICLE VII LIMITATION OF LIABILITY AND INDEMNIFICATION
OF AGENT.................................................26
Section 1 Limitation of Liability ..............................26
Section 2 Indemnification ......................................27
Section 3 Insurance ............................................28
Section 4 Derivative Actions ...................................28
ARTICLE VIII CERTAIN TRANSACTIONS ...................................29
Section 1 Dissolution of Trust or Series .......................29
Section 2.Merger or Consolidation; Conversion; Reorganization.....30
Section 3 Master Feeder Structure ..............................32
Section 4 Absence of Appraisal or Dissenters' Rights ...........32
ARTICLE IX AMENDMENTS Amendments Generally .........................32
Section 1 .......................................................32
ARTICLE X MISCELLANEOUS ...........................................32
Section 1 References; Headings; Counterparts ...................32
Section 2 Applicable Law .......................................33
Section 3 Provisions in Conflict with Law or Regulations .......33
Section 4 Statutory Trust Only .................................33
Section 5.Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust,"
and/or "Institutional Fiduciary Trust" ....................33
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE PRODUCTS TRUST
AGREEMENT AND DECLARATION OF TRUST made as of this 18th day of October,
2006, by the Trustees hereunder, and by the holders of Shares to be issued by
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust (the "Trust") hereunder as
hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being 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 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
(ii) 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 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 ▇▇▇▇▇▇▇▇▇ Variable
Insurance Products Trust" 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 to
be filed with the office of the Secretary of State of the State of Delaware as
required under the Delaware Statutory Trust Act, as amended from time to time,
to form the Trust, as such certificate shall be amended or restated from time to
time and filed with such office;
(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;
(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 Agreement and Declaration of Trust,
as amended or restated from time to time;
(k) "GENERAL LIABILITIES" shall have the meaning given it in Article III,
Section 6(b) of this Declaration 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;
(r) "SHARES" shall mean the transferable shares of beneficial interest into
which the beneficial interest in the Trust 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 ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust, 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 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. The different 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 by reference upon 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, unless otherwise provided to the extent
permitted by the DSTA, in the resolution establishing and designating such
Series or Class, shall have the following rights, powers and duties:
(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 this 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 shall be set forth in the Certificate of
Trust to be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DSTA, and upon the giving of 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) shall become 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 eachsuch 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.
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(a) The initial Board of Trustees shall be comprised of the Trustees entering
into this Declaration of Trust on the date first written above, who shall hold
office until the initial holder of a Share executes a consent in writing to
elect a Board of Trustees that holds office in accordance with paragraph (c) of
this Section 1. The initial Trustees shall (i) execute and file or cause to be
filed the Certificate of Trust with the office of the Secretary of State of the
State of Delaware and (ii) adopt the By-Laws. 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.
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(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.
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(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
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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.
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(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 or a Shareholder to the
extent provided in subsections (b) and (c) 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.
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(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.
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(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 ▇▇▇▇▇▇▇▇▇ Variable Insurance
Products Trust 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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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
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▇▇▇▇▇ ▇. Holiday, Trustee ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, Trustee
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee