NAME OF REGISTRANT:
FRANKLIN FUND ALLOCATOR SERIES
File No. 811-07851
EXHIBIT ITEM: Copies of any material amendments to
the registrant's charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE
PRODUCTS TRUST
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust
was adopted October 18, 2006;
current Amended and Restated Agreement and
Declaration of Trust
adopted May 18, 2018.)
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED
AGENT; DEFINITIONS 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
ARTICLE II PURPOSE OF TRUST 4
ARTICLE III SHARES 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal Liability 10
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 16
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 19
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote 20
Section 3. Shareholder Action by Written Consent Without a Meeting 21
Section 4. Record Dates 21
Section 5. Additional Provisions 22
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 23
Section 1. Determination of Net Asset Value, Net Income and
Distributions 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
ARTICLE VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 27
Section 1. Limitation of Liability 27
Section 2. Indemnification 28
Section 3. Insurance 29
Section 4. Derivative Actions 30
Section 5. Jurisdiction and Waiver of Jury Trial 30
ARTICLE VIII CERTAIN TRANSACTIONS 31
Section 1. Dissolution of Trust or Series 31
Section 2. Merger or Consolidation; Conversion; Reorganization 32
Section 3. Master Feeder Structure 34
Section 4. Absence of Appraisal or Dissenters' Rights 34
ARTICLE IX AMENDMENTS 34
Section 1. Amendments Generally 34
ARTICLE X MISCELLANEOUS 35
Section 1. References; Headings; Counterparts 35
Section 2. Applicable Law 35
Section 3. Provisions in Conflict with Law or Regulations 36
Section 4. Statutory Trust Only 36
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and/or "Institutional Fiduciary Trust" 36
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE PRODUCTS TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made as of this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust
(the "Trust") was formed on October 18, 2006 under the name
"Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust" by
its Trustees by the filing of the Certificate of Trust
with the Office of the Secretary of State of the State
of Delaware pursuant to an Agreement and Declaration of
Trust dated as of October 18, 2006 (the
"Original Declaration of Trust"); and
WHEREAS this Trust has been 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) all cash, securities and other assets that the
Trust may from time to time acquire in any manner shall
be managed and disposed of upon the following terms and
conditions 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
"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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. The Trustees
may, without Shareholder approval, change the name of the Trust or
any Series or Class. Any name change of any Series or Class shall
become effective upon approval by the Trustees of such change or
any document (including any registration statement) reflecting such
change, or at such later time as may be approved by the Trustees.
Any name change of the Trust shall become effective upon the
filing of a certificate of amendment under the DSTA reflecting
such change, or at such later time specified in such certificate
of amendment. Any such action shall have the status of an
amendment to this Declaration of Trust. In the event of any
name change, the Trustees shall cause notice to be given to
the affected Shareholders within a reasonable time after the
implementation of such change, which notice will be deemed
given if the changed name is reflected in any registration
statement. The Trust shall constitute a Delaware statutory
trust in accordance with the DSTA.
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,
restated or supplemented from time to time in accordance with
Article VIII therein. Such By-Laws may contain any provision not
inconsistent with applicable law or this Declaration of Trust,
relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust
of the Trust filed with the office of the Secretary of State of the
State of Delaware as required under the DSTA to form the Trust,
as such certificate shall be amended, restated or supplemented
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. 3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended, restated
or supplemented from time to time;
(k) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that
term in the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as
defined below, furnishing services to the Trust pursuant to any
investment advisory or investment management contract described
in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any
part of any period during (i) which an emergency exists as a result
of which disposal by the Trust of securities or other assets owned by
the Trust is not reasonably practicable; (ii) which it is not
reasonably practicable for the Trust fairly to determine the net
asset value of its assets; or (iii) such other period as the
Commission may by order permit for the protection of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other
individual or entity in its own or any representative capacity,
in each case, whether domestic or foreign, and a statutory trust
or a foreign statutory or business trust;
(p) "Principal Underwriter" shall have the meaning given that
term in the 1940 Act;
(q) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of
Article III hereof;
(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 under the
Original Declaration of Trust, as amended, and by filing of the
Certificate of Trust with the office of the Secretary of State of
the State of Delaware, and governed by this Declaration of Trust;
(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 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, reclassify or convert any unissued
Shares or any Shares 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 and,
in connection therewith, cause some or all of the Shareholders of the
Trust, such Series or Class to become Shareholders of such other Series
or Class. 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 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 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
bound by the terms of this Declaration of Trust. Ownership of Shares
shall not make any Shareholder a third-party beneficiary of any
contract entered into by the Trust or any Series.
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 whether directly in such resolutions
or by reference to, or approval of, another document that sets
forth the designation or otherwise identifies such Series or
Class, including any registration statement of the Trust and
any amendment of this Declaration of Trust, 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.
Any action that may be taken by the Board of Trustees with
respect to any Series or Class, including any addition,
modification, division, combination, classification,
reclassification, change of name or termination, may be made
in the same manner as the establishment of such Series or Class.
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
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 the Trust or a Series
shall carry proportionately all the rights and obligations of a
whole Share of the Trust or such Series, including rights with
respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series shall
have the right to exchange said Shares for Shares of one or more
other Series in accordance with such requirements and procedures
as may be established by the Board of Trustees, and in accordance
with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series, unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series; provided that
upon completion of such combination of Series, the interest of each
Shareholder, in the combined assets and liabilities held with respect
to the combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities held with
respect to the Series that were combined.
(ii) The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series or Class,
unless otherwise required by applicable law, to combine, merge or
otherwise consolidate the Shares of two or more Classes of Shares
of a Series with and/or into a single Class of Shares of such
Series, with such designation, preference, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, terms and conditions of redemption and other
characteristics as the Trustees may determine; provided, however,
that the Trustees shall provide written notice to the affected
Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above may be effected
through share-for-share exchanges, transfers or sales of assets,
Shareholder in-kind redemptions and purchases, exchange offers,
or any other method approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall
be dissolved and terminated 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. The Board of Trustees shall terminate any
particular Class: (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
termination of any particular Series, every Class of such Series
shall thereby be terminated.
Section 7. Indemnification of Shareholders. No Shareholder as
such shall be subject to any personal liability whatsoever to any
Person in connection with Trust Property or the acts, obligations
or affairs of the Trust. If any Shareholder or former Shareholder
shall be exposed to liability, charged with liability, or
held personally liable, for any obligations or liability of the Trust,
by reason of a claim or demand relating exclusively to his or her
being or having been a Shareholder of the Trust or a Shareholder
of a particular Series thereof, and not because of such
Shareholder's actions or omissions, such Shareholder or former
Shareholder (or, in the case of a natural person, his or her heirs,
executors, administrators, or other legal representatives or,
in the case of a corporation or other entity, its corporate or
other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust or out
of the assets of such Series thereof, as the case may be,
against all loss and expense, including without limitation,
attorneys' fees, arising from such claim or demand; provided,
however, such indemnity shall not cover (i) any taxes due or
paid by reason of such Shareholder's ownership of any Shares
and (ii) expenses charged to a Shareholder pursuant to Article
IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The 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 in accordance with paragraph (c) of
this Section 1 and as otherwise provided herein. 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. Shareholders
shall not be entitled to elect Trustees except as required by the
1940 Act. To the extent required by the 1940 Act, the Shareholders
shall elect the Trustees on such dates as the Trustees may fix from
time to time. The Shareholders may elect Trustees at any meeting of
Shareholders called for that purpose pursuant to the By-Laws.
In the event that after the proxy material approved by the Trustees
has been printed for a meeting of Shareholders at which Trustees are
to be elected any one or more nominees approved by the Trustees named
in such proxy material dies or become incapacitated or is otherwise
unable or unwilling to serve, the authorized number of Trustees shall
be automatically reduced by the number of such nominees, unless the
Board of Trustees prior to the meeting shall otherwise determine.
A meeting of Shareholders for the purpose of electing or removing
one or more Trustees shall be called as provided in the By-Laws.
(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.
(f) The declination to serve, death, resignation, retirement,
removal, incapacity, or inability of the Trustees, or any one of them,
shall not operate to dissolve or terminate the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration
of Trust.
Section 2. Trustee Action by Written Consent Without a Meeting.
To the extent not inconsistent with the provisions of the 1940 Act,
any action that may be taken at any meeting of the Board of Trustees
or any committee thereof may be taken without a meeting and without
prior written notice if a consent or consents in writing setting
forth the action so taken is signed by the Trustees having not less
than the minimum number of votes that would be necessary to authorize
or take that action at a meeting at which all Trustees on the Board
of Trustees or any committee thereof, as the case may be, were present
and voted. Written consents of the Trustees may be executed in one or
more counterparts. A consent transmitted by electronic transmission
(as defined in Section 3806 of the DSTA) by a Trustee shall be deemed
to be written and signed for purposes of this Section. All such
consents shall be filed with the secretary of the Trust and shall be
maintained in the Trust's records.
Section 3. Powers; Other Business Interests; Quorum and Required Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust (including every Series thereof) shall
be managed by or under the direction of the Board of Trustees,
and such Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility. The Board of Trustees
shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that it may consider
necessary or appropriate in connection with the operation and
administration of the Trust (including every Series thereof).
The Board of Trustees shall not be bound or limited by present
or future laws or customs with regard to investments by trustees
or fiduciaries, but, subject to the other provisions of this
Declaration of Trust and the By-Laws, shall have full authority and
absolute power and control over the assets and the business of the
Trust (including every Series thereof) to the same extent as if the
Board of Trustees was the sole owner of such assets and business in
its own right, including such authority, power and control to do
all acts and things as it, in its sole discretion, shall deem proper
to accomplish the purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to the requisite
vote for such actions as set forth in this Declaration of Trust
and the By-Laws: (1) adopt By-Laws not inconsistent with applicable
law or this Declaration of Trust; (2) amend, restate and repeal such
By-Laws, subject to and in accordance with the provisions of such
By-Laws; (3) fill vacancies on the Board of Trustees in accordance
with this Declaration of Trust and the By-Laws; (4) elect and remove
such officers and appoint and terminate such agents as it considers
appropriate, in accordance with this Declaration of Trust and the
By-Laws; (5) establish and terminate one or more committees of the
Board of Trustees pursuant to the By-Laws; (6) place Trust Property
in custody as required by the 1940 Act, employ one or more custodians
of the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property
with a custodian or a custodial system meeting the requirements of
the 1940 Act; (7) retain a transfer agent, dividend disbursing
agent, a shareholder servicing agent or administrative services
agent, or any number thereof or any other service provider as
deemed appropriate; (8) provide for the issuance and distribution
of Shares 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.
The Trustees shall be subject to the same fiduciary duties to
which the directors of a Delaware corporation would be subject
if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were
directors of such Delaware corporation, and such modified duties
shall replace any fiduciary duties to which the Trustees would
otherwise be subject. Without limiting the generality of the
foregoing, all actions and omissions of the Trustees shall be
evaluated under the doctrine commonly referred to as the
"business judgment rule," as defined and developed under
Delaware law, to the same extent that the same actions or
omissions of directors of a Delaware corporation in a substantially
similar circumstance would be evaluated under such doctrine.
Notwithstanding the foregoing, the provisions of this Declaration
of Trust and the By-Laws, to the extent that they restrict or
eliminate the duties (including fiduciary duties) and liabilities
relating thereto of a Trustee otherwise applicable under the
foregoing standard or otherwise existing at law or in equity,
are agreed by each Shareholder and the Trust to replace such
other duties and liabilities of such Trustee.
(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, the
Trustees or 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 the Trustees or 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. No creditor of any
Trustee shall have any right to obtain possession, or otherwise
exercise legal or equitable remedies with respect to, any Trust
Property with respect to any claim against, or obligation of,
such Trustee in its individual capacity and not related to the
Trust or any Series or Class of the Trust. No Shareholder shall
be deemed to have a severable ownership in any individual asset
of the Trust, or belonging to any Series, or allocable to any
Class thereof, or any right of partition or possession thereof,
but each Shareholder shall have, except as otherwise provided
for herein, a proportionate undivided beneficial interest in the
Trust or in assets belonging to the Series (or allocable to the Class)
in which the Shareholder holds Shares. The Shares shall be personal
property giving only the rights specifically set forth in this
Declaration of Trust or the DSTA.
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 the Trust
or one or more of the Series or Classes thereof, or for other
securities or financial instruments to be issued by the Trust, or
appointing it or them to act as the administrator, fund accountant
or accounting agent, custodian, transfer agent, dividend disbursing
agent and/or shareholder servicing agent for the Trust or one or
more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and
from time to time, to contract with any Persons, including any
Affiliates, to provide such other services to the Trust or one or
more of its Series, as the Board of Trustees determines to be in
the best interests of the Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances shall affect
the validity of any of the contracts provided for in this Article
IV, Section 7, or disqualify any Shareholder, Trustee, employee or
officer of the Trust from voting upon or executing the same, or
create any liability or accountability to the Trust, any Series
thereof or the Shareholders, provided that the establishment of
and performance of each such contract is permissible under the
1940 Act, and provided further that such Person is authorized to
vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or
for any Person, or for any parent or Affiliate of any Person,
with which any type of service contract provided for in this
Article IV, Section 7 may have been or may hereafter be made,
or that any such Person, or any parent or Affiliate thereof,
is a Shareholder or has an interest in the Trust, or
(ii) the fact that any Person with which any type of
service contract provided for in this Article IV, Section 7
may have been or may hereafter be made also has such a service
contract with one or more other Persons, or has other business
or interests.
(e) Every contract referred to in this Section 7 is required
to comply with this Declaration of Trust, the By-Laws, the 1940
Act, other applicable law and any stipulation by resolution of
the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of
Article III, Section 6 hereof, the Shareholders shall have the
power to vote only (i) on such matters required by this Declaration
of Trust, the By-Laws, the 1940 Act, other applicable law and any
registration statement of the Trust filed with the Commission, the
registration of which is effective; and (ii) on such other matters
as the Board of Trustees may consider necessary or desirable.
Subject to Article III hereof, the Shareholder of record (as of
the record date established pursuant to Section 4 of this Article V)
of each Share shall be entitled to one vote for each full Share,
and a fractional vote for each fractional Share. Shareholders
shall not be entitled to cumulative voting in the election of Trustees
or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares entitled to vote
at a Shareholders' meeting, which are present in person or represented
by proxy, shall constitute a quorum at the Shareholders' meeting,
except when a larger quorum is required by this Declaration of Trust,
the By-Laws, applicable law or the requirements of any securities
exchange on which Shares are listed for trading, in which case
such quorum shall comply with such requirements. When a separate
vote by one or more Series or Classes is required, forty percent
(40%) of the outstanding Shares of each such Series or Class
entitled to vote at a Shareholders' meeting of such Series or
Class, which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders' meeting of such
Series or Class, except when a larger quorum is required by this
Declaration of Trust, the By-Laws, applicable law or the
requirements of any securities exchange on which Shares of
such Series or Class are listed for trading, in which case
such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III, Section 6(d),
when a quorum is present at any meeting, a majority of the votes
cast shall decide any questions and a plurality shall elect a Trustee,
except when a larger vote is required by any provision of this
Declaration of Trust or the By-Laws or by applicable law. Pursuant
to Article III, Section 6(d) hereof, where a separate vote by Series
and, if applicable, by Class is required, the preceding sentence
shall apply to such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes
present at a Shareholders' meeting; abstentions and broker non-votes
will not be treated as votes cast at such meeting. Abstentions
and broker non-votes, therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii) will have no effect
on proposals that require a plurality for approval, or on proposals
requiring an affirmative vote of a majority of votes cast for approval.
Section 3. Shareholder Action by Written Consent Without a Meeting.
Any action which may be taken at any meeting of Shareholders may be
taken without a meeting if a consent or consents in writing setting
forth the action so taken is or are signed by the holders of a
majority of the Shares entitled to vote on such action (or such
different proportion thereof as shall be required by law, the
Declaration of Trust or the By-Laws for approval of such action)
and is or are received by the secretary of the Trust either: (i)
by the date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date
for such action as determined by reference to Article V, Section
4(b) hereof. The written consent for any such action may be executed
in one or more counterparts, each of which shall be deemed an
original, and all of which when taken together shall constitute one
and the same instrument. A consent transmitted by electronic
transmission (as defined in the DSTA) by a Shareholder or by
a Person or Persons authorized to act for a Shareholder shall
be deemed to be written and signed for purposes of this
Section. All such consents shall be filed with the secretary
of the Trust and shall be maintained in the Trust's records.
Any Shareholder that has given a written consent or the
Shareholder's proxyholder or a personal representative of the
Shareholder or its respective proxyholder may revoke the consent
by a writing received by the secretary of the Trust either: (i)
before the date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date
for such action as determined by reference to Article V, Section
4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to
notice of, and to vote at, any meeting of Shareholders, the Board
of Trustees may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record
date is adopted by the Board of Trustees, and which record
date shall not be more than one hundred and twenty (120)
days nor less than ten (10) days before the date of any such
meeting. A determination of Shareholders of record entitled
to notice of or to vote at a meeting of Shareholders shall
apply to any adjournment of the meeting; provided, however,
that the Board of Trustees may fix a new record date for the
adjourned meeting and shall fix a new record date for any
meeting that is adjourned for more than one hundred and eighty
(180) days from the record date set for the original meeting.
For purposes of determining the Shareholders entitled to vote
on any action without a meeting, the Board of Trustees may fix
a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by
the Board of Trustees, and which record date shall not be more
than thirty (30) days after the date upon which the resolution
fixing the record date is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall be at
the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held.
(ii) the record date for determining Shareholders entitled to vote
on any action by consent in writing without a meeting of Shareholders,
(1) when no prior action by the Board of Trustees has been taken,
shall be the day on which the first signed written consent setting
forth the action taken is delivered to the Trust, or (2) when prior
action of the Board of Trustees has been taken, shall be at the
close of business on the day on which the Board of Trustees adopts
the resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the Trust
or any Series or Class thereof who are entitled to receive
payment of any dividend or of any other distribution of assets of
the Trust or any Series or Class thereof (other than in connection
with a dissolution of the Trust or a Series, a merger,
consolidation, conversion, reorganization, or any other transactions,
in each case that is governed by Article VIII of the
Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be more
than sixty (60) days before the date for the payment of such
dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates and related
payment dates at periodic intervals of any duration for the payment
of such dividend and/or such other distribution; and/or
(iii) delegate to an appropriate officer or officers of the Trust
the determination of such periodic record and/or payments dates
with respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding the
Board of Trustees from setting different record dates for
different Series or Classes.
Section 5. Additional Provisions. The By-Laws may
include further provisions for Shareholders' votes, meetings
and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and
Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of
Trustees shall have the power to determine from time to time the
offering price for authorized, but unissued, Shares of 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 (or delegate to any officer of
the Trust or any other Person the right to prescribe) such bases and
time (including any methodology or plan) 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, and the method of determining the Shareholders to whom
dividends and distributions are payable, 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. Without limiting the generality
of the foregoing, but subject to applicable federal law, including
the 1940 Act, any dividend or distribution may be paid in cash
and/or securities or other property, and the composition of any
such distribution shall be determined by the Trustees (or by any
officer of the Trust or any other Person to whom such authority has
been delegated by the Trustees) and may be different among
Shareholders
including differences among Shareholders of the same Series or Class.
(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
as determined by the Trustees (or by such Person to whom
such determination has been delegated) (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 or other Person
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). In the case of a suspension of the
right of redemption as provided herein, a Shareholder may either
withdraw the request for redemption or receive payment based on
the net asset value per Share next determined after the termination
of such suspension, less any fees imposed on such redemption.
(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 and for such reasons as may be established
from time to time by the Board of Trustees, including, without
limitation, (i) the determination of the Trustees that direct or
indirect ownership of Shares of the Trust or any Series has or
may become concentrated in such Shareholder to an extent that would
disqualify any Series as a regulated investment company under the
Code (or any successor statute thereto), (ii) the failure of a
Shareholder to supply a tax identification number if required to
do so, or to have the minimum investment required (which may vary
by Series or Class), (iii) if the Share activity of the account
or ownership of Shares by a particular Shareholder is deemed by
the Trustees either to affect adversely the management of the
Trust or any Series or Class or not to be in the best interests
of the remaining Shareholders of the Trust or any Series or Class
or (iv) the failure of a Shareholder to pay when due for the
purchase of Shares issued to him. Any such redemption shall be
effected at the redemption price and in the manner provided in
this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable
in accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person
who is or was a Trustee, officer, employee or other agent of the
Trust or is or was serving at the request of the Trust as a trustee,
director, officer, employee or other agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise; "Proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative; and "Expenses" include without limitation attorneys'
fees and any expenses of establishing a right to indemnification under
this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder for
any act or omission that constitutes a bad faith violation of the
implied contractual covenant of good faith and fair dealing, for such
Agent's own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the
fullest extent that limitations on the liability of Agents are
permitted by the DSTA, the Agents shall not be responsible or liable
in any event for any act or omission of any other Agent of the
Trust or any Investment Adviser or Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such,
shall be personally liable to any Person, other than the Trust 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, regardless of whether such counsel or expert may
also be a Trustee, as to matters the Trustee, officer or employee
of the Trust reasonably believes are within such Person's professional
or expert competence. 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, potential
party or non-party witness or is threatened to be made a party,
potential party or non-party witness 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.
(g) Joint and Several Obligations. Notwithstanding any other
provision in this Declaration of Trust to the contrary, any amount
of indemnification and any advancement of expenses that any Agent
is entitled to be paid under Section 2 shall be deemed to be joint
and several obligations of the Trust and each Series, and the assets
of the Trust and each Series shall be subject to the claims of any
Agent therefor under this Article VII; provided that any such
liability, expense or obligation may be allocated and charged
by the Board of Trustees between or among the Trust and/or any
one or more Series (and Classes) in such manner as the Board of
Trustees in its sole discretion deem fair and equitable.
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. In addition 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
following conditions are met:
(a) The Shareholder or Shareholders must 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 an action is
not likely to succeed. For purposes of this Section 4, a demand
on the Board of Trustees shall only be deemed not likely to succeed
and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such
action, is composed of Trustees who are not "independent trustees"
(as such term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of
this Section 4, Shareholders eligible to bring such derivative
action under the DSTA who hold at least 10% of the outstanding
Shares of the Trust, or 10% of the outstanding Shares of the Series
or Class to which such action relates, shall join in the request for
the Board of Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 4, the Board of Trustees must be afforded a reasonable
amount of time to consider such Shareholder request and to investigate
the basis of such claim. The Board of Trustees shall be entitled to
retain counsel or other advisors in considering the merits of the
request and shall require an undertaking by the Shareholders making
such request to reimburse the Trust for the expense of any such
advisors in the event that the Board of Trustees determine not
to bring such action.
For purposes of this Section 4, the Board of Trustees may designate
a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who are
"independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions (collectively,
"claims") that under applicable law must be brought as derivative
claims, each Shareholder of the Trust or any Series or Class thereof
agrees that any claim that affects all Shareholders of a Series or
Class equally, that is, proportionately based on their number of
Shares in such Series or Class, must be brought as a derivative claim
subject to this Section 4 irrespective of whether such claim involves
a violation of the Shareholders' rights under this Declaration of
Trust or any other alleged violation of contractual or individual
rights that might otherwise give rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial. In accordance
with Section 3804(e) of the DSTA any suit, action or proceeding
brought by or in the right of any Shareholder or any person claiming
any interest in any Shares seeking to enforce any provision of,
or based on any matter arising out of, or in connection with, this
Declaration of Trust or the Trust, any Series or Class or any Shares,
including any claim of any nature against the Trust, any Series or
Class, the Trustees or officers of the Trust, shall be brought
exclusively in the Court of Chancery of the State of Delaware to
the extent there is subject matter jurisdiction in such court for
the claims asserted or, if not, then in the Superior Court of the
State of Delaware, and all Shareholders and other such Persons
hereby irrevocably consent to the jurisdiction of such courts
(and the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waive, to the
fullest extent permitted by law, any objection they may
make now or hereafter have to the laying of the venue of
any such suit, action or proceeding in such court or that
any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum and further,
in connection with any such suit, action, or proceeding
brought in the Superior Court in the State of Delaware,
all Shareholders and all other such Persons irrevocably waive
the right to a trial by jury to the fullest extent permitted by law.
All Shareholders and other such Persons agree that service of summons,
complaint or other process in connection with any proceedings may be
made by registered or certified mail or by overnight courier addressed
to such Person at the address shown on the books and records of
the Trust for such Person or at the address of the Person shown on
the books and records of the Trust with respect to the Shares that
such Person claims an interest in. Service of process in any such
suit, action or proceeding against the Trust or any Trustee or officer
of the Trust may be made at the address of the Trust's registered agent
in the State of Delaware. Any service so made shall be effective
as if personally made in the State of Delaware.
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, without limitation, 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. In connection with the dissolution and
liquidation of the Trust or the termination of any Series or any
Class, the Trustees may provide for the establishment and utilization
of a liquidating trust or similar vehicle.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger
or consolidation, the Board of Trustees, by vote of a majority of
the Trustees, may cause the Trust to merge or consolidate with or
into one or more statutory trusts or "other business entities" (as
defined in Section 3801 of the DSTA) formed or organized or existing
under the laws of the State of Delaware or any other state of the
United States or any foreign country or other foreign jurisdiction.
Any such merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided
however, that the Board of Trustees shall provide at least thirty (30)
days' prior written notice to the Shareholders of such merger or
consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with this
Section 2(a) may, without a Shareholder vote unless required by the
1940 Act or the requirements of any securities exchange on which Shares
are listed for trading, 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. In connection with any
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 or Class to be converted into beneficial
interests in another statutory trust (or series or class 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 or Class of any
conversion of Shares of such Series or Class pursuant to
Subsection (b)(ii) of this Section 2 or exchange of Shares of
such Series or Class 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 or Class thereof
into beneficial interests in such separate statutory trust or trusts
(or series or class 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")
or any one or more Classes ("sale of such Class's 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 or class
thereof, or to the Trust to be held as assets associated
with one or more other Series or Classes of the Trust, in
exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series or Class
of the Trust, Shares of such other Series or Class) 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 or Class 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, at least thirty (30)
days' prior written notice to the Shareholders of a particular
Series of any sale of such Series' assets, and at least thirty
(30) days' prior written notice to the Shareholders of a particular
Class of any sale of such Class's 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). Following a sale of
such Class's assets, the Board of Trustees shall distribute such
cash, shares or other securities ratably among the Shareholders of
such Class. 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 or Class have been so sold, conveyed
and transferred, such Series and the Classes thereof, or such Class,
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 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; provided,
that, all matters relating to or in connection with the conduct
of Shareholders' and Trustees' meetings (excluding, however, the
Shareholders' right to vote), including, without limitation,
matters relating to or in connection with record dates, notices
to Shareholders or Trustees, nominations and elections of Trustees,
voting by, and the validity of, Shareholder proxies, quorum
requirements, meeting adjournments, meeting postponements and
inspectors, which are not specifically addressed in this
Declaration of Trust, in the By-Laws or in the DSTA (other
than DSTA Section 3809), or as to which an ambiguity exists,
shall be governed by the Delaware General Corporation Law,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation, the Shareholders were shareholders of
such Delaware corporation and the Trustees were directors of
such Delaware corporation; provided, further, however, that there
shall not be applicable to the Trust, the Trustees, the
Shareholders or any other Person or to this Declaration of
Trust or the By-Laws (a) the provisions of Sections 3533,
3540 and 3583(a) of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of
Delaware (other than the DSTA) pertaining to trusts which relate
to or regulate (i) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee fees and
charges, (ii) affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property,
(iv) fees or other sums payable to trustees, officers, agents or
employees of a trust, (v) the allocation of receipts and
expenditures to income or principal, (vi) restrictions or
limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling,
storage or other manner of holding trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities
or limitations on the indemnification, acts or powers of trustees
or other Persons, which are inconsistent with the limitations of
liabilities or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this Declaration of Trust
or the By-Laws. The Trust shall be a Delaware statutory trust
pursuant to the DSTA, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily
exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940
Act, the Code, the DSTA, or with other applicable laws and
regulations, the conflicting provision shall be deemed not to
have constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with such laws or
regulations; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of
Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention
of the Trustees to create hereby a statutory trust pursuant to
the DSTA, and thereby to create the relationship of trustee and
beneficial owners within the meaning of the DSTA between,
respectively, the Trustees and each Shareholder. It is not
the intention of the Trustees to create a general or limited
partnership, limited liability company, joint stock association,
corporation, bailment, or any form of legal relationship other
than a statutory trust pursuant to the DSTA. Nothing in this
Declaration of Trust shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners or members of a
joint stock association.
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and/or "Institutional Fiduciary Trust". The
Board of Trustees expressly agrees and acknowledges that the names
"▇▇▇▇▇▇▇▇," "▇▇▇▇▇▇▇▇▇," "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
non-exclusive 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 Declaration of Trust as of the date first written above.
/s/ Harris J. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee