AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN CALIFORNIA TAX-FREE INCOME FUND
A DELAWARE STATUTORY TRUST
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..........................................7
Section 1 Division of Beneficial Interest.................7
Section 2. Ownership of Shares.............................9
Section 3. Sale of Shares..................................9
Section 4. Status of Shares and Limitation of
Personal Liability..............................9
Section 5. Power of Board of Trustees to Make Tax
Status Election................................10
Section 6. Establishment and Designation of Series
and Classes....................................10
Section 7. Indemnification of Shareholders................14
ARTICLE IV. THE BOARD OF TRUSTEES..........................14
Section 1. Number, Election, Term, Removal and
Resignation....................................14
Section 2. Trustee Action by Written Consent
Without a Meeting..............................15
Section 3. Powers; Other Business Interests; Quorum
and Required Vote..............................15
Section 4. Payment of Expenses by the Trust...............17
Section 5 Payment of Expenses by Shareholders............18
Section 6. Ownership of Trust Property....................18
Section 7. Service Contracts..............................18
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS.......19
Section 1. Voting Powers..................................19
Section 2. Quorum and Required Vote.......................19
Section 3. Shareholder Action by Written Consent
Without a Meeting............................. 20
Section 4. Record Dates...................................20
Section 5. Additional Provisions..........................22
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS;
TRANSFERS......................................22
Section 1. Determination of Net Asset Value, Net
Income and Distributions.......................22
Section 2. Redemptions at the Option of a Shareholder.....24
Section 3. Redemptions at the Option of the Trust.........25
Section 4. Transfer of Shares.............................25
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION
OF AGENT.......................................25
Section 1. Limitation of Liability........................25
Section 2. Indemnification................................26
Section 3. Insurance......................................28
Section 4. Derivative Actions.............................28
ARTICLE VIII. CERTAIN TRANSACTIONS...........................28
Section 1. Dissolution of Trust or Series.................28
Section 2. Merger or Consolidation; Conversion;
Reorganization.................................29
Section 3. Master Feeder Structure........................31
Section 4. Absence of Appraisal or Dissenters'
Rights.........................................31
ARTICLE IX. AMENDMENTS.....................................31
Section 1. Amendments Generally...........................31
ARTICLE X. MISCELLANEOUS..................................32
Section 1. References; Headings; Counterparts.............32
Section 2. Applicable Law.................................32
Section 3. Provisions in Conflict with Law or
Regulations....................................32
Section 4. Statutory Trust Only...........................32
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and/or "Institutional
Fiduciary Trust"...............................33
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN CALIFORNIA TAX-FREE INCOME FUND
AGREEMENT AND DECLARATION OF TRUST made as of this 18th day of October,
2006, by the Trustees hereunder, and by the holders of Shares to be issued by
Franklin California Tax-Free Income Fund (the "Trust") hereunder as
hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being formed to carry on the business of an
open-end management investment company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into two or more
Classes, to issue its Shares in separate Series, to divide Shares of any
Series into two or more Classes and to issue Classes of the Trust or the
Series, if any, all in accordance with the provisions hereinafter set forth;
and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Trustees will hold all cash, securities and other assets that
they may from time to time acquire in any manner as Trustees hereunder IN
TRUST and will manage and dispose of the same upon the following terms and
conditions for the benefit of the holders from time to time of Shares created
hereunder as hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having become a
Trustee of the Trust, and on every Shareholder, by virtue of having become a
Shareholder of the Trust, pursuant to the terms of this Declaration of Trust
and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. NAME. This Trust shall be known as "Franklin California
Tax-Free Income Fund" and the Board of Trustees shall conduct the business of
the Trust under that name, or any other name as it may from time to time
designate.
Section 2. OFFICES OF THE TRUST. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends to do
business.
Section 3. REGISTERED AGENT AND REGISTERED OFFICE. The name of the
registered agent of the Trust and the address of the registered office of the
Trust are as set forth in the Trust's Certificate of Trust.
Section 4. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "1940 ACT" shall mean the Investment Company Act of 1940 and the rules
and regulations thereunder, all as adopted or amended from time to
time;
(b) "AFFILIATE" shall have the same meaning as "affiliated person" as such
term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "BOARD OF TRUSTEES" shall mean the governing body of the Trust, that
is comprised of the number of Trustees of the Trust fixed from time to
time pursuant to Article IV hereof, having the powers and duties set
forth herein;
(d) "BY-LAWS" shall mean By-Laws of the Trust, as amended or restated from
time to time in accordance with Article VIII therein. Such By-Laws may
contain any provision not inconsistent with applicable law or this
Declaration of Trust, relating to the governance of the Trust;
(e) "CERTIFICATE OF TRUST" shall mean the certificate of trust of the
Trust to be filed with the office of the Secretary of State of the
State of Delaware as required under the Delaware Statutory Trust Act,
as amended from time to time, to form the Trust, as such certificate
shall be amended or restated from time to time and filed with such
office;
(f) "CLASS" shall mean each class of Shares of the Trust or of a Series of
the Trust established and designated under and in accordance with the
provisions of Article III hereof;
(g) "CODE" shall mean the Internal Revenue Code of 1986 and the rules and
regulations thereunder, all as adopted or amended from time to time;
(h) "COMMISSION" shall have the meaning given that term in the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act (12 DEL. C. ss.
3801, et SEQ.), as amended from time to time;
(j) "DECLARATION OF TRUST" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(k) "GENERAL LIABILITIES" shall have the meaning given it in Article III,
Section 6(b) of this Declaration Trust;
(l) "INTERESTED PERSON" shall have the meaning given that term in the 1940
Act;
(m) "INVESTMENT ADVISER" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment
advisory or investment management contract described in Article IV,
Section 7(a) hereof;
(n) "NATIONAL FINANCIAL EMERGENCY" shall mean the whole or any part of any
period during (i) which an emergency exists as a result of which
disposal by the Trust of securities or other assets owned by the Trust
is not reasonably practicable; (ii) which it is not reasonably
practicable for the Trust fairly to determine the net asset value of
its assets; or (iii) such other period as the Commission may by order
permit for the protection of investors;
(o) "PERSON" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, in each case,
whether domestic or foreign, and a statutory trust or a foreign
statutory or business trust;
(p) "PRINCIPAL UNDERWRITER" shall have the meaning given that term in the
1940 Act;
(q) "SERIES" shall mean each Series of Shares established and designated
under and in accordance with the provisions of Article III hereof;
(r) "SHARES" shall mean the transferable shares of beneficial interest
into which the beneficial interest in the Trust shall be divided from
time to time, and shall include fractional and whole Shares;
(s) "SHAREHOLDER" shall mean a record owner of Shares pursuant to the
By-Laws;
(t) "TRUST" shall mean Franklin California Tax-Free Income Fund, the
Delaware statutory trust formed hereby and by filing of the
Certificate of Trust with the office of the Secretary of State of the
State of Delaware;
(u) "TRUST PROPERTY" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account
of the Trust, or one or more of any Series thereof, including, without
limitation, the rights referenced in Article X, Section 5 hereof; and
(v) "TRUSTEE" or "TRUSTEES" shall mean each Person who signs this
Declaration of Trust as a trustee and all other Persons who may, from
time to time, be duly elected or appointed, qualified and serving on
the Board of Trustees in accordance with the provisions hereof and the
By-Laws, so long as such signatory or other Person continues in office
in accordance with the terms hereof and the By-Laws. Reference herein
to a Trustee or the Trustees shall refer to such Person or Persons in
such Person's or Persons' capacity as a trustee or trustees hereunder
and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a registered management investment company registered under the
1940 Act, directly, or if one or more Series is established hereunder,
through one or more Series, investing primarily in securities, and to
exercise all of the powers, rights and privileges granted to, or conferred
upon, a statutory trust formed under the DSTA, including, without limitation,
the following powers:
(a) To hold, invest and reinvest its funds, and in connection therewith, to
make any changes in the investment of the assets of the Trust, to hold part or
all of its funds in cash, to hold cash uninvested, to subscribe for, invest in,
reinvest in, purchase or otherwise acquire, own, hold, pledge, sell, assign,
mortgage, transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or delivery of fixed
income or other securities, and securities or property of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks, shares,
units of beneficial interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, money market instruments,
certificates of deposit or indebtedness, bills, notes, mortgages, commercial
paper, repurchase or reverse repurchase agreements, bankers' acceptances,
finance paper, and any options, certificates, receipts, warrants, futures
contracts or other instruments representing rights to receive, purchase or
subscribe for the same, or evidencing or representing any other rights or
interests therein or in any property or assets, and other securities of any
kind, as the foregoing are issued, created, guaranteed, or sponsored by any and
all Persons, including, without limitation, states, territories, and possessions
of the United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities;
(b) To exercise any and all rights, powers and privileges with reference to
or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Trust or any Series, subject to any requirements of
the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such Person or Persons as the Trustees shall
deem proper, granting to such Person or Persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities and/or other property;
(f) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Board of Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer, employee,
agent, Investment Adviser, Principal Underwriter, or independent contractor, to
the fullest extent permitted by this Declaration of Trust, the By-Laws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate, exchange,
assign, transfer, mortgage, pledge or otherwise deal with, dispose of, use,
exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Trust, and to
mortgage or pledge the whole or any part of the property and franchises of the
Trust, real, personal, and mixed, tangible or intangible, and wheresoever
situated;
(q) To enter into, make and perform contracts and undertakings of every
kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and deal
in stocks, Shares, bonds, debentures and other securities, instruments or other
property of the Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this Declaration of Trust,
determine; and to re-acquire and redeem, from time to time, its Shares or, if
any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon, or adjust,
by arbitration, or otherwise, any actions, suits, proceedings, disputes, claims,
and demands relating to the Trust, and out of the assets of the Trust to pay or
to satisfy any debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include without limitation
the power of the Trustees or any appropriate committee thereof, in the exercise
of their or its good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim, or demand, derivative or otherwise, brought by any
Person, including a Shareholder in the Shareholder's own name or the name of the
Trust, whether or not the Trust or any of the Trustees may be named individually
therein or the subject matter arises by reason of business for or on behalf of
the Trust;
(t) To exercise and enjoy, in Delaware and in any other states,
territories, districts and United States dependencies and in foreign countries,
all of the foregoing powers, rights and privileges, and the enumeration of the
foregoing powers shall not be deemed to exclude any powers, rights or privileges
so granted or conferred; and
(u) In general, to carry on any other business in connection with or
incidental to its trust purposes, to do everything necessary, suitable or proper
for the accomplishment of such purposes or for the attainment of any object or
the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to, or growing out of, or connected with, its business or purposes,
objects or powers.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series.
Neither the Trust nor the Board of Trustees shall be required to obtain any
court order to deal with any assets of the Trust or take any other action
hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict
in any manner the powers of the Trust, and that they are in furtherance of,
and in addition to, and not in limitation of, the general powers conferred
upon the Trust by the DSTA and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be deemed to exclude
another, although it be of like nature, not expressed.
ARTICLE III
SHARES
Section 1. DIVISION OF BENEFICIAL INTEREST.
(a) The beneficial interest in the Trust shall be divided into Shares,
each Share without a par value. The number of Shares in the Trust
authorized 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 andin Article III, Section 6 hereof to the extent relevant and
not otherwise provided for herein, and all references to Series and Classes
shall be construed (as the context may require) to refer to the Trust.
(i) The fact that the Trust shall have one or more established and
designated Classes of the Trust, shall not limit the authority of
the Board of Trustees to establish and designate additional
Classes of the Trust. The fact that one or more Classes of the
Trust shall have initially been established and designated
without any specific establishment or designation of a Series
(i.e., that all Shares of the Trust are initially Shares of one
or more Classes) shall not limit the authority of the Board of
Trustees to later establish and designate a Series and establish
and designate the Class or Classes of the Trust as Class or
Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been established and
designated without any specific establishment or designation of
Classes (i.e., that all Shares of such Series are initially of a
single Class) shall not limit the authority of the Board of
Trustees to establish and designate separate Classes of said
Series. The fact that a Series shall have more than one
established and designated Class, shall not limit the authority
of the Board of Trustees to establish and designate additional
Classes of said Series.
(b) The Board of Trustees shall have the power to issue authorized,
but unissued Shares of beneficial interest of the Trust, or any Series and
Class thereof, from time to time for such consideration paid wholly or
partly in cash, securities or other property, as may be determined from
time to time by the Board of Trustees, subject to any requirements or
limitations of the 1940 Act. The Board of Trustees, on behalf of the Trust,
may acquire and hold as treasury shares, reissue for such consideration and
on such terms as it may determine, or cancel, at its discretion from time
to time, any Shares reacquired by the Trust. The Board of Trustees may
classify or reclassify any unissued shares of beneficial interest or any
shares of beneficial interest of the Trust or any Series or Class thereof,
that were previously issued and are reacquired, into one or more Series or
Classes that may be established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series thereof may
acquire, hold, sell and otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or Shares of the
Trust, and such Shares shall not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III, each
Share shall entitle the holder to voting rights as provided in Article V
hereof. Shareholders shall have no preemptive or other right to subscribe
for new or additional authorized, but unissued Shares or other securities
issued by the Trust or any Series thereof. The Board of Trustees may from
time to time divide or combine the Shares of the Trust or any particular
Series thereof into a greater or lesser number of Shares of the Trust or
that Series, respectively. Such division or combination shall not
materially change the proportionate beneficial interests of the holders of
Shares of the Trust or that Series, as the case may be, in the Trust
Property at the time of such division or combination that is held with
respect to the Trust or that Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person has an economic or other interest,
may acquire, own, hold and dispose of Shares of beneficial interest in the
Trust or any Series and Class thereof, whether such Shares are authorized
but unissued, or already outstanding, to the same extent as if such Person
were not a Trustee, officer or other agent of the Trust; and the Trust or
any Series may issue and sell and may purchase such Shares from any such
Person or any such organization, subject to the limitations, restrictions
or other provisions applicable to the sale or purchase of such Shares
herein and the 1940 Act.
Section 2. OWNERSHIP OF SHARES. The ownership of Shares shall be recorded
on the books of the Trust kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of the
Trust and each Series and each Class thereof that has been established and
designated. No certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time. The
Board of Trustees may make such rules not inconsistent with the provisions of
the 1940 Act as it considers appropriate for the issuance of Share certificates,
the transfer of Shares of the Trust and each Series and Class thereof, if any,
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders of the Trust and each Series and Class thereof and as to the
number of Shares of the Trust and each Series and Class thereof held from time
to time by each such Shareholder.
Section 3. SALE OF SHARES. Subject to the 1940 Act and applicable law, the
Trust may sell its authorized but unissued Shares of beneficial interest to such
Persons, at such times, on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or fractional Shares of the
Trust or such Series thereof (and Class thereof, if any), as the purchaser may
select, at the net asset value per Share, subject to Section 22 of the 1940 Act,
and the rules and regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the Principal Underwriter
to impose a sales charge upon any such sale. Every Shareholder by virtue of
having become a Shareholder shall be deemed to have expressly assented and
agreed to the terms of this Declaration of Trust and to have become bound as a
party hereto.
Section 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust, the By-Laws, and under applicable law.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor entitle the representative
of any deceased, incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against the Trust, the
Trustees or any such Series, but entitles such representative only to the rights
of said deceased, incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust, shall have any power to bind personally
any Shareholder, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money other than such as the
Shareholder may at any time personally agree to pay. Each Share, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be entitled to the
same limitation of personal liability as that extended to stockholders of a
private corporation organized for profit under the General Corporation Law of
the State of Delaware.
Section 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS ELECTION. The
Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust and any Series as may be permitted
or required under the Code, without the vote of any Shareholder.
Section 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES. The
establishment and designation of any Series or Class shall be effective, without
the requirement of Shareholder approval, upon the adoption of a resolution by
not less than a majority of the then Board of Trustees, which resolution shall
set forth such establishment and designation and may provide, to the extent
permitted by the DSTA, for rights, powers and duties of such Series or Class
(including variations in the relative rights and preferences as between the
different Series and Classes) otherwise than as provided herein. Each such
resolution shall be incorporated herein by reference upon adoption. Any such
resolution may be amended by a further resolution of a majority of the Board of
Trustees, and if Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of Trust, such further
resolution shall require the same Shareholder approval that would be necessary
to make such amendment to the language set forth in this Declaration of Trust.
Each such further resolution shall be incorporated herein by reference upon
adoption.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall be maintained
for each Series, and the assets and liabilities belonging to any such Series
shall be held and accounted for separately from the assets and liabilities of
the Trust or any other Series. Each Class of the Trust shall be separate and
distinct from any other Class of the Trust. Each Class of a Series shall be
separate and distinct from any other Class of the Series. As appropriate, in
a manner determined by the Board of Trustees, the liabilities belonging to
any such Class shall be held and accounted for separately from the
liabilities of the Trust, the Series or any other Class and separate and
distinct records on the books of the Trust for the Class shall be maintained
for this purpose. Subject to Article II hereof, each such Series shall
operate as a separate and distinct investment medium, with separately defined
investment objectives and policies.
Shares of each Series (and Class where applicable) established and
designated pursuant to this Section 6, unless otherwise provided to the
extent permitted by the DSTA, in the resolution establishing and designating
such Series or Class, shall have the following rights, powers and duties:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All consideration
received by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably be held with respect to
that Series for all purposes, subject only to the rights of creditors with
respect to that Series, and shall be so recorded upon the books of account
of the Trust. Such consideration, assets, income, earnings, profits and
proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payments derived from any reinvestment of
such proceeds, in whatever form the same may be, are herein referred to as
"assets held with respect to" that Series. In the event that there are any
assets, income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of Trustees,
or an appropriate officer as determined by the Board of Trustees, shall
allocate such General Assets to, between or among any one or more of the
Series in such manner and on such basis as the Board of Trustees, in its
sole discretion, deems fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that Series.
Each such allocation by or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES OR CLASS. The
assets of the Trust held with respect to a particular Series shall be
charged with the liabilities, debts, obligations, costs, charges, reserves
and expenses of the Trust incurred, contracted for or otherwise existing
with respect to such Series. Such liabilities, debts, obligations, costs,
charges, reserves and expenses incurred, contracted for or otherwise
existing with respect to a particular Series are herein referred to as
"liabilities held with respect to" that Series. Any liabilities, debts,
obligations, costs, charges, reserves and expenses of the Trust which are
not readily identifiable as being liabilities held with respect to any
particular Series (collectively "General Liabilities") shall be allocated
by the Board of Trustees, or an appropriate officer as determined by the
Board of Trustees, to and among any one or more of the Series in such
manner and on such basis as the Board of Trustees in its sole discretion
deems fair and equitable. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or under the
direction of the Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. All Persons who have extended
credit that has been allocated to a particular Series, or who have a claim
or contract that has been allocated to any particular Series, shall look
exclusively to the assets of that particular Series for payment of such
credit, claim, or contract. In the absence of an express contractual
agreement so limiting the claims of such creditors, claimants and contract
providers, each creditor, claimant and contract provider shall be deemed
nevertheless to have impliedly agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against
the assets held with respect to that Series only, and not against the assets
of any other Series or the Trust generally and none of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series thereof
shall be enforceable against the assets held with respect to such Series.
Notice of this limitation on liabilities between and among Series shall be
set forth in the Certificate of Trust to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the DSTA, and upon
the giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DSTA relating to limitations on liabilities
between and among Series (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) shall become
applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should or
may properly be allocated to, the Shares of a particular Class may be charged
to and borne solely by such Class. The bearing of expenses solely by a
particular Class of Shares may be appropriately reflected (in a manner
determined by the Board of Trustees) and may affect the net asset value
attributable to, and the dividend, redemption and liquidation rights of, such
Class. Each allocation of liabilities, debts, obligations, costs, charges,
reserves and expenses by or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders of all Classes for all
purposes. All Persons who have extended credit that has been allocated to a
particular Class, or who have a claim or contract that has been allocated to
any particular Class, shall look, and may be required by contract to look,
exclusively to that particular Class for payment of such credit, claim, or
contract.
(c) DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS. Notwithstanding any
other provisions of this Declaration of Trust, including, without
limitation, Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon dissolution of the Trust or
of any Series with respect to, nor any redemption of, the Shares of any
Series or Class of such Series shall be effected by the Trust other than
from the assets held with respect to such Series, nor, except as
specifically provided in Section 7 of this Article III, shall any
Shareholder of any particular Series otherwise have any right or claim
against the assets held with respect to any other Series or the Trust
generally except, in the case of a right or claim against the assets held
with respect to any other Series, to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other Series. The
Board of Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated
as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote on a matter shall
vote in the aggregate without differentiation between the Shares of the
separate Series, if any, or separate Classes, if any; provided that (i)
with respect to any matter that affects only the interests of some but not
all Series, then only the Shares of such affected Series, voting
separately, shall be entitled to vote on the matter, (ii) with respect to
any matter that affects only the interests of some but not all Classes,
then only the Shares of such affected Classes, voting separately, shall be
entitled to vote on the matter; and (iii) notwithstanding the foregoing,
with respect to any matter as to which the 1940 Act or other applicable law
or regulation requires voting, by Series or by Class, then the Shares of
the Trust shall vote as prescribed in such law or regulation.
(e) EQUALITY. Each Share of any particular Series shall be equal to
each other Share of such Series (subject to the rights and preferences with
respect to separate Classes of such Series).
(f) FRACTIONS. A fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of such
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and dissolution of the Trust or that
Series.
(g) EXCHANGE PRIVILEGE. The Board of Trustees shall have the authority
to provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series in accordance
with such requirements and procedures as may be established by the Board of
Trustees, and in accordance with the 1940 Act.
(h) COMBINATION OF SERIES OR CLASSES.
(i) The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series, unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series; provided that
upon completion of such combination of Series, the interest of each
Shareholder, in the combined assets and liabilities held with respect
to the combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities held with
respect to the Series that were combined.
(ii) The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series or Class,
unless otherwise required by applicable law, to combine, merge or
otherwise consolidate the Shares of two or more Classes of Shares of a
Series with and/or into a single Class of Shares of such Series, with
such designation, preference, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications,
terms and conditions of redemption and other characteristics as the
Trustees may determine; provided, however, that the Trustees shall
provide written notice to the affected Shareholders of any such
transaction.
(iii) The transactions in (i) and (ii) above may be effected
through share-for-share exchanges, transfers or sales of assets,
Shareholder in-kind redemptions and purchases, exchange offers, or any
other method approved by the Trustees.
(i) DISSOLUTION OR TERMINATION. Any particular Series shall be dissolved
upon the occurrence of the applicable dissolution events set forth in Article
VIII, Section 1 hereof. Upon dissolution of a particular Series, the Trustees
shall wind up the affairs of such Series in accordance with Article VIII Section
1 hereof and thereafter, rescind the establishment and designation thereof. The
Board of Trustees shall terminate any particular Class and rescind the
establishment and designation thereof: (i) upon approval by a majority of votes
cast at a meeting of the Shareholders of such Class, provided a quorum of
Shareholders of such Class are present, or by action of the Shareholders of such
Class by written consent without a meeting pursuant to Article V, Section 3; or
(ii) at the discretion of the Board of Trustees either (A) at any time there are
no Shares outstanding of such Class, or (B) upon prior written notice to the
Shareholders of such Class; provided, however, that upon the rescission of the
establishment and designation of any particular Series, every Class of such
Series shall thereby be terminated and its establishment and designation
rescinded. Each resolution of the Board of Trustees pursuant to this Section
6(i) shall be incorporated herein by reference upon adoption.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. No shareholder as such shall be
subject to any personal liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the Trust. If any
Shareholder or former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating exclusively to his or her being
or having been a Shareholder of the Trust or a Shareholder of a particular
Series thereof, and not because of such Shareholder's actions or omissions, such
Shareholder or former Shareholder (or, in the case of a natural person, his or
her heirs, executors, administrators, or other legal representatives or, in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified out of the assets of
the Trust or out of the assets of such Series thereof, as the case may be,
against all loss and expense, including without limitation, attorneys' fees,
arising from such claim or demand; provided, however, such indemnity shall not
cover (i) any taxes due or paid by reason of such Shareholder's ownership of any
Shares and (ii) expenses charged to a Shareholder pursuant to Article IV,
Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION.
(a) The initial Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written above,
who shall hold office until the initial holder of a Share executes a
consent in writing to elect a Board of Trustees that holds office in
accordance with paragraph (c) of this Section 1. The initial Trustees shall
(i) execute and file or cause to be filed the Certificate of Trust with the
office of the Secretary of State of the State of Delaware and (ii) adopt
the By-Laws. In accordance with Section 3801 of the DSTA, each Trustee
shall become a Trustee and be bound by this Declaration of Trust and the
By-Laws when such Person signs this Declaration of Trust as a trustee
and/or is duly elected or appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof and the By-Laws, so long
as such signatory or other Person continues in office in accordance with
the terms hereof.
(b) The number of Trustees constituting the entire Board of Trustees
may be fixed from time to time by the vote of a majority of the then Board
of Trustees; PROVIDED, HOWEVER, that the number of Trustees shall in no
event be less than one (1) nor more than fifteen (15). The number of
Trustees shall not be reduced so as to shorten the term of any Trustee then
in office.
(c) Each Trustee shall hold office for the lifetime of the Trust or
until such Trustee's earlier death, resignation, removal, retirement or
inability otherwise to serve, or, if sooner than any of such events, until
the next meeting of Shareholders called for the purpose of electing
Trustees or consent of Shareholders in lieu thereof for the election of
Trustees, and until the election and qualification of his or her successor.
(d) Any Trustee may be removed, with or without cause, by the Board of
Trustees, by action of a majority of the Trustees then in office, or by
vote of the Shareholders at any meeting called for that purpose.
(e) Any Trustee may resign at any time by giving written notice to the
secretary of the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt, unless specified to be
effective at some later time.
Section 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT A MEETING. To the
extent not inconsistent with the provisions of the 1940 Act, any action that may
be taken at any meeting of the Board of Trustees or any committee thereof may be
taken without a meeting and without prior written notice if a consent or
consents in writing setting forth the action so taken is signed by the Trustees
having not less than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all Trustees on the Board of
Trustees or any committee thereof, as the case may be, were present and voted.
Written consents of the Trustees may be executed in one or more counterparts. A
consent transmitted by electronic transmission (as defined in Section 3806 of
the DSTA) by a Trustee shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM AND REQUIRED VOTE.
(a) POWERS. Subject to the provisions of this Declaration of Trust,
the business of the Trust (including every Series thereof) shall be managed
by or under the direction of the Board of Trustees, and such Board of
Trustees shall have all powers necessary or convenient to carry out that
responsibility. The Board of Trustees shall have full power and authority
to do any and all acts and to make and execute any and all contracts and
instruments that it may consider necessary or appropriate in connection
with the operation and administration of the Trust (including every Series
thereof). The Board of Trustees shall not be bound or limited by present or
future laws or customs with regard to investments by trustees or
fiduciaries, but, subject to the other provisions of this Declaration of
Trust and the By-Laws, shall have full authority and absolute power and
control over the assets and the business of the Trust (including every
Series thereof) to the same extent as if the Board of Trustees was the sole
owner of such assets and business in its own right, including such
authority, power and control to do all acts and things as it, in its sole
discretion, shall deem proper to accomplish the purposes of this Trust.
Without limiting the foregoing, the Board of Trustees may, subject to the
requisite vote for such actions as set forth in this Declaration of Trust
and the By-Laws: (1) adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust; (2) amend, restate and repeal such By-Laws,
subject to and in accordance with the provisions of such By-Laws; (3) fill
vacancies on the Board of Trustees in accordance with this Declaration of
Trust and the By-Laws; (4) elect and remove such officers and appoint and
terminate such agents as it considers appropriate, in accordance with this
Declaration of Trust and the By-Laws; (5) establish and terminate one or
more committees of the Board of Trustees pursuant to the By-Laws; (6) place
Trust Property in custody as required by the 1940 Act, employ one or more
custodians of the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property with a
custodian or a custodial system meeting the requirements of the 1940 Act;
(7) retain a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, or any number thereof or
any other service provider as deemed appropriate; (8) provide for the
issuance and distribution of shares of beneficial interest in the Trust or
other securities or financial instruments directly or through one or more
Principal Underwriters or otherwise; (9) retain one or more Investment
Adviser(s); (10) re-acquire and redeem Shares on behalf of the Trust and
transfer Shares pursuant to applicable law; (11) set record dates for the
determination of Shareholders with respect to various matters, in the
manner provided in Article V, Section 4 of this Declaration of Trust; (12)
declare and pay dividends and distributions to Shareholders from the Trust
Property, in accordance with this Declaration of Trust and the By-Laws;
(13) establish, designate and redesignate from time to time, in accordance
with the provisions of Article III, Section 6 hereof, any Series or Class
of the Trust or of a Series; (14) hire personnel as staff for the Board of
Trustees or, for those Trustees who are not Interested Persons of the
Trust, the Investment Adviser, or the Principal Underwriter, set the
compensation to be paid by the Trust to such personnel, exercise exclusive
supervision of such personnel, and remove one or more of such personnel, at
the discretion of the Board of Trustees; (15) retain special counsel, other
experts and/or consultants for the Board of Trustees, for those Trustees
who are not Interested Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, and/or for one or more of the committees of the
Board of Trustees, set the compensation to be paid by the Trust to such
special counsel, other experts and/or consultants, and remove one or more
of such special counsel, other experts and/or consultants, at the
discretion of the Board of Trustees; (16) engage in and prosecute, defend,
compromise, abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any debts, claims
or expenses incurred in connection therewith, including those of
litigation, and such power shall include, without limitation, the power of
the Trustees, or any appropriate committee thereof, in the exercise of
their or its good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise, brought by
any person, including a shareholder in its own name or in the name of the
Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for
or on behalf of the Trust; and (17) in general delegate such authority as
it considers desirable to any Trustee or officer of the Trust, to any
committee of the Trust, to any agent or employee of the Trust or to any
custodian, transfer, dividend disbursing, shareholder servicing agent,
Principal Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section 3(a) are
without prejudice to any other powers of the Board of Trustees set forth in
this Declaration of Trust and the By-Laws. Any determination as to what is
in the best interests of the Trust or any Series or Class thereof and its
Shareholders made by the Board of Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Board of Trustees.
(b) OTHER BUSINESS INTERESTS. The Trustees shall devote to the affairs
of the Trust (including every Series thereof) such time as may be necessary
for the proper performance of their duties hereunder, but neither the
Trustees nor the officers, directors, shareholders, partners or employees
of the Trustees, if any, shall be expected to devote their full time to the
performance of such duties. The Trustees, or any Affiliate, shareholder,
officer, director, partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in, or possess an interest
in, any business or venture other than the Trust or any Series thereof, of
any nature and description, independently or with or for the account of
others. None of the Trust, any Series thereof or any Shareholder shall have
the right to participate or share in such other business or venture or any
profit or compensation derived therefrom.
(c) QUORUM AND REQUIRED VOTE. At all meetings of the Board of
Trustees, a majority of the Board of Trustees then in office shall be
present in person in order to constitute a quorum for the transaction of
business. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the departure of Trustees from the
meeting, if any action taken is approved by at least a majority of the
required quorum for that meeting. Subject to Article III, Sections 1 and 6
of the By-Laws and except as otherwise provided herein or required by
applicable law, the vote of not less than a majority of the Trustees
present at a meeting at which a quorum is present shall be the act of the
Board of Trustees.
Section 4. PAYMENT OF EXPENSES BY THE TRUST. Subject to the provisions
of Article III, Section 6 hereof, an authorized officer of the Trust shall
pay or cause to be paid out of the principal or income of the Trust or any
particular Series or Class thereof, or partly out of the principal and
partly out of the income of the Trust or any particular Series or Class
thereof, and charge or allocate the same to, between or among such one or
more of the Series or Classes that may be established or designated
pursuant to Article III, Section 6 hereof, as such officer deems fair, all
expenses, fees, charges, taxes and liabilities incurred by or arising in
connection with the maintenance or operation of the Trust or a particular
Series or Class thereof, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such
expenses, fees, charges, taxes and liabilities associated with the services
of the Trust's officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, sub-custodian, transfer agent,
dividend disbursing agent, shareholder servicing agent, and such other
agents or independent contractors and such other expenses, fees, charges,
taxes and liabilities as the Board of Trustees may deem necessary or proper
to incur.
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Board of Trustees
shall have the power, as frequently as it may determine, to cause any
Shareholder to pay directly, in advance or arrears, an amount fixed from
time to time by the Board of Trustees or an officer of the Trust for
charges of the Trust's custodian or transfer, dividend disbursing,
shareholder servicing or similar agent which are not customarily charged
generally to the Trust, a Series or a Class, where such services are
provided to such Shareholder individually, rather than to all Shareholders
collectively, by setting off such amount due from such Shareholder from the
amount of (i) declared but unpaid dividends or distributions owed such
Shareholder, or (ii) proceeds from the redemption by the Trust of Shares
from such Shareholder pursuant to Article VI hereof.
Section 6. OWNERSHIP OF TRUST PROPERTY. Legal title to all of the
Trust Property shall at all times be vested in the Trust, except that the
Board of Trustees shall have the power to cause legal title to any Trust
Property to be held by or in the name of any Person as nominee, on such
terms as the Board of Trustees may determine, in accordance with applicable
law.
Section 7. SERVICE CONTRACTS.
(a) Subject to this Declaration of Trust, the By-Laws and the 1940 Act, the
Board of Trustees may, at any time and from time to time, contract for exclusive
or nonexclusive investment advisory or investment management services for the
Trust or for any Series thereof with any corporation, trust, association or
other organization, including any Affiliate; and any such contract may contain
such other terms as the Board of Trustees may determine, including without
limitation, delegation of authority to the Investment Adviser to determine from
time to time without prior consultation with the Board of Trustees what
securities and other instruments or property shall be purchased or otherwise
acquired, owned, held, invested or reinvested in, sold, exchanged, transferred,
mortgaged, pledged, assigned, negotiated, or otherwise dealt with or disposed
of, and what portion, if any, of the Trust Property shall be held uninvested and
to make changes in the Trust's or a particular Series' investments, or to engage
in such other activities, including administrative services, as may specifically
be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any Person, including any Affiliate, appointing it or them as the
exclusive or nonexclusive placement agent, distributor or Principal Underwriter
for the Shares of beneficial interest of the Trust or one or more of the Series
or Classes thereof, or for other securities or financial instruments to be
issued by the Trust, or appointing it or them to act as the administrator, fund
accountant or accounting agent, custodian, transfer agent, dividend disbursing
agent and/or shareholder servicing agent for the Trust or one or more of the
Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and from time
to time, to contract with any Persons, including any Affiliates, to provide such
other services to the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the Trust, such Series and
its Shareholders.
(d) None of the following facts or circumstances shall affect the validity
of any of the contracts provided for in this Article IV, Section 7, or
disqualify any Shareholder, Trustee, employee or officer of the Trust from
voting upon or executing the same, or create any liability or accountability to
the Trust, any Series thereof or the Shareholders, provided that the
establishment of and performance of each such contract is permissible under the
1940 Act, and provided further that such Person is authorized to vote upon such
contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees or
officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or
for any Person, or for any parent or Affiliate of any Person,
with which any type of service contract provided for in this
Article IV, Section 7 may have been or may hereafter be made, or
that any such Person, or any parent or Affiliate thereof, is a
Shareholder or has an interest in the Trust, or
(ii) the fact that any Person with which any type of service contract
provided for in this Article IV, Section 7 may have been or may
hereafter be made also has such a service contract with one or
more other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7 is required to comply with
this Declaration of Trust, the By-Laws, the 1940 Act, other applicable law and
any stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. Subject to the provisions of Article III, Section
6 hereof, the Shareholders shall have the power to vote only (i) on such matters
required by this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record date established
pursuant to Section 4 of this Article V) of each Share shall be entitled to one
vote for each full Share, and a fractional vote for each fractional Share.
Shareholders shall not be entitled to cumulative voting in the election of
Trustees or on any other matter.
Section 2. QUORUM AND REQUIRED VOTE.
(a) Forty percent (40%) of the outstanding Shares entitled to
vote at a Shareholders' meeting, which are present in person or
represented by proxy, shall constitute a quorum at the Shareholders'
meeting, except when a larger quorum is required by this Declaration
of Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares are listed for trading, in which
case such quorum shall comply with such requirements. When a separate
vote by one or more Series or Classes is required, forty percent (40%)
of the outstanding Shares of each such Series or Class entitled to
vote at a Shareholders' meeting of such Series or Class, which are
present in person or represented by proxy, shall constitute a quorum
at the Shareholders' meeting of such Series or Class, except when a
larger quorum is required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities exchange on which
Shares of such Series or Class are listed for trading, in which case
such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III, Section 6(d), when
a quorum is present at any meeting, a majority of the votes cast shall
decide any questions and a plurality shall elect a Trustee, except
when a larger vote is required by any provision of this Declaration of
Trust or the By-Laws or by applicable law. Pursuant to Article III,
Section 6(d) hereof, where a separate vote by Series and, if
applicable, by Class is required, the preceding sentence shall apply
to such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes
present at a Shareholders' meeting; abstentions and broker non-votes
will not be treated as votes cast at such meeting. Abstentions and
broker non-votes, therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii) will have no effect
on proposals that require a plurality for approval, or on proposals
requiring an affirmative vote of a majority of votes cast for
approval.
Section 3. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action which may be taken at any meeting of Shareholders may be taken
without a meeting if a consent or consents in writing setting forth the
action so taken is or are signed by the holders of a majority of the Shares
entitled to vote on such action (or such different proportion thereof as
shall be required by law, the Declaration of Trust or the By-Laws for
approval of such action) and is or are received by the secretary of the
Trust either: (i) by the date set by resolution of the Board of Trustees
for the shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date for such
action as determined by reference to Article V, Section 4(b) hereof. The
written consent for any such action may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
when taken together shall constitute one and the same instrument. A consent
transmitted by electronic transmission (as defined in the DSTA) by a
Shareholder or by a Person or Persons authorized to act for a Shareholder
shall be deemed to be written and signed for purposes of this Section. All
such consents shall be filed with the secretary of the Trust and shall be
maintained in the Trust's records. Any Shareholder that has given a written
consent or the Shareholder's proxyholder or a personal representative of
the Shareholder or its respective proxyholder may revoke the consent by a
writing received by the secretary of the Trust either: (i) before the date
set by resolution of the Board of Trustees for the shareholder vote on such
action; or (ii) if no date is set by resolution of the Board, within 30
days after the record date for such action as determined by reference to
Article V, Section 4(b) hereof.
Section 4. RECORD DATES.
(a) For purposes of determining the Shareholders entitled to notice
of, and to vote at, any meeting of Shareholders, the Board of Trustees may
fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Trustees,
and which record date shall not be more than one hundred and twenty (120)
days nor less than ten (10) days before the date of any such meeting. A
determination of Shareholders of record entitled to notice of or to vote at
a meeting of Shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Trustees may fix a new record date for
the adjourned meeting and shall fix a new record date for any meeting that
is adjourned for more than sixty (60) days from the date set for the
original meeting. For purposes of determining the Shareholders entitled to
vote on any action without a meeting, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Trustees, and
which record date shall not be more than thirty (30) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall
be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the
close of business on the day next preceding the day on which
the meeting is held.
(ii) the record date for determining Shareholders entitled to
vote on any action by consent in writing without a meeting
of Shareholders, (1) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first
signed written consent setting forth the action taken is
delivered to the Trust, or (2) when prior action of the
Board of Trustees has been taken, shall be at the close of
business on the day on which the Board of Trustees adopts
the resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the Trust or
any Series or Class thereof who are entitled to receive payment of any
dividend or of any other distribution of assets of the Trust or any Series
or Class thereof (other than in connection with a dissolution of the Trust
or a Series, a merger, consolidation, conversion, reorganization, or any
other transactions, in each case that is governed by Article VIII of the
Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which record date shall
not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be
more than sixty (60) days before the date for the payment of
such dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates and related
payment dates at periodic intervals of any duration for the
payment of such dividend and/or such other distribution;
and/or
(iii) delegate to an appropriate officer or officers of the Trust
the determination of such periodic record and/or payments
dates with respect to such dividend and/or such other
distribution.
Nothing in this Section shall be construed as precluding the Board of
Trustees from setting different record dates for different Series or Classes.
Section 5. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to determine from time to time the offering price for
authorized, but unissued, Shares of beneficial interest of the Trust or any
Series or Class thereof, respectively, that shall yield to the Trust or
such Series or Class not less than the net asset value thereof, in addition
to any amount of applicable sales charge to be paid to the Principal
Underwriter or the selling broker or dealer in connection with the sale of
such Shares, at which price the Shares of the Trust or such Series or
Class, respectively, shall be offered for sale, subject to any other
requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees
may, subject to the 1940 Act, prescribe and shall set forth in the By-Laws,
this Declaration of Trust or in a resolution of the Board of Trustees such
bases and time for determining the net asset value per Share of the Trust
or any Series or Class thereof, or net income attributable to the Shares of
the Trust or any Series or Class thereof or the declaration and payment of
dividends and distributions on the Shares of the Trust or any Series or
Class thereof, as it may deem necessary or desirable, and such dividends
and distributions may vary between the Classes to reflect differing
allocations of the expenses of the Trust between such Classes to such
extent and for such purposes as the Trustees may deem appropriate.
(c) The Shareholders of the Trust or any Series or Class, if any,
shall be entitled to receive dividends and distributions, when, if and as
declared by the Board of Trustees with respect thereto, provided that with
respect to Classes, such dividends and distributions shall comply with the
1940 Act. The right of Shareholders to receive dividends or other
distributions on Shares of any Class may be set forth in a plan adopted by
the Board of Trustees and amended from time to time pursuant to the 1940
Act. No Share shall have any priority or preference over any other Share of
the Trust with respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into Series
thereof, no Share of a particular Series shall have any
priority or preference over any other Share of the same
Series with respect to dividends or distributions paid
in the ordinary course of business or distributions
upon dissolution of the Trust or of such Series made
pursuant to Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes
thereof, no Share of a particular Class shall have any
priority or preference over any other Share of the same
Class with respect to dividends or distributions paid
in the ordinary course of business or distributions
upon dissolution of the Trust made pursuant to Article
VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes
thereof, no Share of a particular Class of such Series
shall have any priority or preference over any other
Share of the same Class of such Series with respect to
dividends or distributions paid in the ordinary course
of business or distributions upon dissolution of such
Series made pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all Shareholders
of the Trust, a particular Class of the Trust, a particular Series, or a
particular Class of a Series from the Trust Property held with respect to the
Trust, such Series or such Class, respectively, according to the number of
Shares of the Trust, such Series or such Class held of record by such
Shareholders on the record date for any dividend or distribution; provided
however, that
(iv) if the Shares of the Trust are divided into Series
thereof, all dividends and distributions from the Trust
Property and, if applicable, held with respect to such
Series, shall be distributed to each Series thereof
according to the net asset value computed for such
Series and within such particular Series, shall be
distributed ratably to the Shareholders of such Series
according to the number of Shares of such Series held
of record by such Shareholders on the record date for
any dividend or distribution; and
(v) if the Shares of the Trust or of a Series are divided
into Classes thereof, all dividends and distributions
from the Trust Property and, if applicable, held with
respect to the Trust or such Series, shall be
distributed to each Class thereof according to the net
asset value computed for such Class and within such
particular Class, shall be distributed ratably to the
Shareholders of such Class according to the number of
Shares of such Class held of record by such
Shareholders on the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of any
funds of the Trust, or the applicable Series thereof, available for
dividends such sum or sums as the Board of Trustees may from time to time,
in its absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Trust, or any Series thereof, or for such other lawful
purpose as the Board of Trustees shall deem to be in the best interests of
the Trust, or the applicable Series, as the case may be, and the Board of
Trustees may abolish any such reserve in the manner in which the reserve
was created.
Section 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares and/or in
accordance with such other procedures for redemption as the Board of
Trustees may from time to time authorize. If certificates have been issued
to a Shareholder, any request for redemption by such Shareholder must be
accompanied by surrender of any outstanding certificate or certificates for
such Shares in form for transfer, together with such proof of the
authenticity of signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value thereof
(excluding any applicable redemption fee or sales load), in accordance with
this Declaration of Trust, the By-Laws, the 1940 Act and other applicable
law. Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of Trustees,
or such officer or officers as it may duly authorize in its complete
discretion, be made in kind or partially in cash and partially in kind. In
case of any payment in kind, the Board of Trustees, or its authorized
officers, shall have absolute discretion as to what security or securities
of the Trust or the applicable Series shall be distributed in kind and the
amount of the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing the
then current net asset value of the Shares, provided that any Shareholder
who cannot legally acquire securities so distributed in kind shall receive
cash to the extent permitted by the 1940 Act. Shareholders shall bear the
expenses of in-kind transactions, including, but not limited to, transfer
agency fees, custodian fees and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be made
by the Trust to the Shareholder within seven days after the date on which
the redemption request is received in proper form and/or such other
procedures authorized by the Board of Trustees are complied with; provided,
however, that if payment shall be made other than exclusively in cash, any
securities to be delivered as part of such payment shall be delivered as
promptly as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered practicably can
be made, which may not necessarily occur within such seven-day period. In
no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of
any payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are
subject to the provision that such obligations may be suspended or
postponed by the Board of Trustees (1) during any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or holidays;
(2) if permitted by the rules of the Commission, during periods when
trading on the Exchange is restricted; or (3) during any National Financial
Emergency. The Board of Trustees may, in its discretion, declare that the
suspension relating to a National Financial Emergency shall terminate, as
the case may be, on the first business day on which the Exchange shall have
reopened or the period specified above shall have expired (as to which, in
the absence of an official ruling by the Commission, the determination of
the Board of Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any Series or Class
thereof to receive dividends or other distributions on Shares redeemed and
all other rights of such Shareholder with respect to the Shares so
redeemed, except the right of such Shareholder to receive payment for such
Shares, shall cease at the time the purchase price of such Shares shall
have been fixed, as provided above.
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. At the option of the
Board of Trustees the Trust may, from time to time, without the vote of the
Shareholders, but subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established from time to time by the Board of Trustees.
Section 4. TRANSFER OF SHARES. Shares shall be transferable in accordance
with the provisions of the By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. LIMITATION OF LIABILITY.
(a) For the purpose of this Article, "Agent" means any Person who is or was
a Trustee, officer, employee or other agent of the Trust or is or was serving at
the request of the Trust as a trustee, director, officer, employee or other
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; "Proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative; and "Expenses" include without limitation attorneys' fees and any
expenses of establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder for any
act or omission that constitutes a bad faith violation of the implied
contractual covenant of good faith and fair dealing, for such Agent's own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Agent (such conduct referred to herein as
"Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest extent
that limitations on the liability of Agents are permitted by the DSTA, the
Agents shall not be responsible or liable in any event for any act or omission
of any other Agent of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder to the
extent provided in subsections (b) and (c) of this Section 1, for any act,
omission or obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall, in the
performance of his or her duties, be fully and completely justified and
protected with regard to any act or any failure to act resulting from reliance
in good faith upon the books of account or other records of the Trust, upon an
opinion of counsel, or upon reports made to the Trust by any of its officers or
employees or by the Investment Adviser, the Principal Underwriter, any other
Agent, selected dealers, accountants, appraisers or other experts or consultants
selected with reasonable care by the Trustees, officers or employees of the
Trust, regardless of whether such counsel or expert may also be a Trustee. The
officers and Trustees may obtain the advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, the By-Laws,
applicable law and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in accordance with
such advice, records and/or reports and no inference concerning liability shall
arise from a failure to follow such advice, records and/or reports. The officers
and Trustees shall not be required to give any bond hereunder, nor any surety if
a bond is required by applicable law.
(f) The failure to make timely collection of dividends or interest, or to
take timely action with respect to entitlements, on the Trust's securities
issued in emerging countries, shall not be deemed to be negligence or other
fault on the part of any Agent, and no Agent shall have any liability for such
failure or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect the liquidity of
the Trust's assets or from any war or political act of any foreign government to
which such assets might be exposed, except, in the case of a Trustee or officer,
for liability resulting from such Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies to events
occurring at the time a Person serves as an Agent whether or not such Person is
an Agent at the time of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any right
or protection of an Agent that exists at the time of such amendment or repeal.
Section 2. INDEMNIFICATION.
(a) INDEMNIFICATION BY TRUST. The Trust shall indemnify, out of Trust
Property, to the fullest extent permitted under applicable law, any Person
who was or is a party or is threatened to be made a party to any Proceeding
by reason of the fact that such Person is or was an Agent of the Trust,
against Expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in connection with such Proceeding if such Person
acted in good faith or in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such Person was unlawful. The
termination of any Proceeding by judgment, order, settlement, conviction or
plea of nolo contendere or its equivalent shall not of itself create a
presumption that the Person did not act in good faith or that the Person
had reasonable cause to believe that the Person's conduct was unlawful.
(b) EXCLUSION OF INDEMNIFICATION. Notwithstanding any provision to the
contrary contained herein, there shall be no right to indemnification for
any liability arising by reason of the Agent's Disqualifying Conduct. In
respect of any claim, issue or matter as to which that Person shall have
been adjudged to be liable in the performance of that Person's duty to the
Trust or the Shareholders, indemnification shall be made only to the extent
that the court in which that action was brought shall determine, upon
application or otherwise, that in view of all the circumstances of the
case, that Person was not liable by reason of that Person's Disqualifying
Conduct.
(c) REQUIRED APPROVAL. Any indemnification under this Article shall be
made by the Trust if authorized in the specific case on a determination
that indemnification of the Agent is proper in the circumstances by (i) a
final decision on the merits by a court or other body before whom the
proceeding was brought that the Agent was not liable by reason of
Disqualifying Conduct (including, but not limited to, dismissal of either a
court action or an administrative proceeding against the Agent for
insufficiency of evidence of any Disqualifying Conduct) or, (ii) in the
absence of such a decision, a reasonable determination, based upon a review
of the facts, that the Agent was not liable by reason of Disqualifying
Conduct, by (1) the vote of a majority of a quorum of the Trustees who are
not (x) "interested persons" of the Trust as defined in Section 2(a)(19) of
the 1940 Act, (y) parties to the proceeding, or (z) parties who have any
economic or other interest in connection with such specific case (the
"disinterested, non-party Trustees"); or (2) by independent legal counsel
in a written opinion.
(d) ADVANCEMENT OF EXPENSES. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the final
disposition of the Proceeding on receipt of an undertaking by or on behalf
of the Agent to repay the amount of the advance if it shall be determined
ultimately that the Agent is not entitled to be indemnified as authorized
in this Article; provided, that at least one of the following conditions
for the advancement of expenses is met: (i) the Agent shall provide a
security for his undertaking, (ii) the Trust shall be insured against
losses arising by reason of any lawful advances, or (iii) a majority of a
quorum of the disinterested, non-party Trustees of the Trust, or an
independent legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Agent ultimately will be
found entitled to indemnification.
(e) OTHER CONTRACTUAL RIGHTS. Nothing contained in this Article shall
affect any right to indemnification to which Persons other than Trustees
and officers of the Trust or any subsidiary thereof may be entitled by
contract or otherwise.
(f) FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This Article does not apply
to any Proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in that Person's capacity as such,
even though that Person may also be an Agent of the Trust as defined in
Section 1 of this Article. Nothing contained in this Article shall limit
any right to indemnification to which such a trustee, investment manager,
or other fiduciary may be entitled by contract or otherwise which shall be
enforceable to the extent permitted by applicable law other than this
Article.
Section 3. INSURANCE. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property,
insurance for liability and for all Expenses reasonably incurred or paid or
expected to be paid by an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or omissions to act,
in its capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. DERIVATIVE ACTIONS. Subject to the requirements set forth in
Section 3816 of the DSTA, a Shareholder or Shareholders may bring a derivative
action on behalf of the Trust only if the Shareholder or Shareholders first make
a pre-suit demand upon the Board of Trustees to bring the subject action unless
an effort to cause the Board of Trustees to bring such action is excused. A
demand on the Board of Trustees shall only be excused if a majority of the Board
of Trustees, or a majority of any committee established to consider the merits
of such action, has a material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material personal financial
interest in an action or otherwise be disqualified from ruling on a Shareholder
demand by virtue of the fact that such Trustee receives remuneration from his or
her service on the Board of Trustees of the Trust or on the boards of one or
more investment companies with the same or an affiliated investment adviser or
underwriter.
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. DISSOLUTION OF TRUST OR SERIES. The Trust and each Series shall
have perpetual existence, except that the Trust (or a particular Series) shall
be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of not
less than a majority of the Shares of the Trust cast, or (ii) at the
discretion of the Board of Trustees either (A) at any time there are no
Shares outstanding of the Trust, or (B) upon prior written notice to the
Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series cast, or
(ii) at the discretion of the Board of Trustees either (A) at any time
there are no Shares outstanding of such Series, or (B) upon prior written
notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any other
provision of this Declaration of Trust (including Article VIII, Section 2)
or the DSTA; or
(d) With respect to any Series, upon any event that causes the
dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may
be), the Board of Trustees shall (in accordance with Section 3808 of the
DSTA) pay or make reasonable provision to pay all claims and obligations of
the Trust and/or each Series (or the particular Series, as the case may be),
including all contingent, conditional or unmatured claims and obligations
known to the Trust, and all claims and obligations which are known to the
Trust, but for which the identity of the claimant is unknown. If there are
sufficient assets held with respect to the Trust and/or each Series of the
Trust (or the particular Series, as the case may be), such claims and
obligations shall be paid in full and any such provisions for payment shall
be made in full. If there are insufficient assets held with respect to the
Trust and/or each Series of the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid or provided for according
to their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any remaining assets
(including, without limitation, cash, securities or any combination thereof)
held with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be) shall be distributed to the
Shareholders of the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of Shares of the
Trust and/or such Series thereof (or the particular Series, as the case may
be) held of record by the several Shareholders on the date for such
dissolution distribution; provided, however, that if the Shares of the Trust
or a Series are divided into Classes thereof, any remaining assets
(including, without limitation, cash, securities or any combination thereof)
held with respect to the Trust or such Series, as applicable, shall be
distributed to each Class of the Trust or such Series according to the net
asset value computed for such Class and within such particular Class, shall
be distributed ratably to the Shareholders of such Class according to the
number of Shares of such Class held of record by the several Shareholders on
the date for such dissolution distribution. Upon the winding up of the Trust
in accordance with Section 3808 of the DSTA and its termination, any one (1)
Trustee shall execute, and cause to be filed, a certificate of cancellation,
with the office of the Secretary of State of the State of Delaware in
accordance with the provisions of Section 3810 of the DSTA.
Section 2. MERGER OR CONSOLIDATION; CONVERSION; REORGANIZATION.
(a) MERGER OR CONSOLIDATION. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into one or
more statutory trusts or "other business entities" (as defined in Section
3801 of the DSTA) formed or organized or existing under the laws of the
State of Delaware or any other state of the United States or any foreign
country or other foreign jurisdiction. Any such merger or consolidation
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of such
merger or consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with this
Section 2(a) may, without a Shareholder vote, unless required by the 1940
Act, the requirements of any securities exchange on which Shares are listed
for trading or any other provision of this Declaration of Trust or the
By-Laws, effect any amendment to this Declaration of Trust or the By-Laws
or effect the adoption of a new governing instrument if the Trust is the
surviving or resulting statutory trust in the merger or consolidation,
which amendment or new governing instrument shall be effective at the
effective time or date of the merger or consolidation. In all respects not
governed by the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or
consolidation, including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion of
Shares into beneficial interests in such separate statutory trust or
trusts. Upon completion of the merger or consolidation, if the Trust is the
surviving or resulting statutory trust, any one (1) Trustee shall execute,
and cause to be filed, a certificate of merger or consolidation in
accordance with Section 3815 of the DSTA.
(b) CONVERSION. The Board of Trustees, by vote of a majority of the
Trustees, may cause (i) the Trust to convert to an "other business entity"
(as defined in Section 3801 of the DSTA) formed or organized under the laws
of the State of Delaware as permitted pursuant to Section 3821 of the DSTA;
(ii) the Shares of the Trust or any Series to be converted into beneficial
interests in another statutory trust (or series thereof) created pursuant
to this Section 2 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law. Any such statutory conversion, Share conversion or Share exchange
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of the
Trust of any conversion of Shares of the Trust pursuant to Subsections
(b)(i) or (b)(ii) of this Section 2 or exchange of Shares of the Trust
pursuant to Subsection (b)(iii) of this Section 2, and at least thirty (30)
days' prior written notice to the Shareholders of a particular Series of
any conversion of Shares of such Series pursuant to Subsection (b)(ii) of
this Section 2 or exchange of Shares of such Series pursuant to Subsection
(b)(iii) of this Section 2. In all respects not governed by the DSTA, the
1940 Act, other applicable law or the requirements of any securities
exchange on which Shares are listed for trading, the Board of Trustees
shall have the power to prescribe additional procedures necessary or
appropriate to accomplish a statutory conversion, Share conversion or Share
exchange, including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series thereof into beneficial interests in such
separate statutory trust or trusts (or series thereof).
(c) REORGANIZATION. The Board of Trustees, by vote of a majority of
the Trustees, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets") or
all or substantially all of the assets associated with any one or more
Series ("sale of such Series' assets"), to another trust, statutory trust,
partnership, limited partnership, limited liability company, corporation or
other association organized under the laws of any state, or to one or more
separate series thereof, or to the Trust to be held as assets associated
with one or more other Series of the Trust, in exchange for cash, shares or
other securities (including, without limitation, in the case of a transfer
to another Series of the Trust, Shares of such other Series) with such
sale, conveyance and transfer either (a) being made subject to, or with the
assumption by the transferee of, the liabilities associated with the Trust
or the liabilities associated with the Series the assets of which are so
transferred, as applicable, or (b) not being made subject to, or not with
the assumption of, such liabilities. Any such sale, conveyance and transfer
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of the
Trust of any such sale of Trust assets, and at least thirty (30) days prior
written notice to the Shareholders of a particular Series of any sale of
such Series' assets. Following such sale of Trust assets, the Board of
Trustees shall distribute such cash, shares or other securities ratably
among the Shareholders of the Trust (giving due effect to the assets and
liabilities associated with and any other differences among the various
Series the assets associated with which have been so sold, conveyed and
transferred, and due effect to the differences among the various Classes
within each such Series). Following a sale of such Series' assets, the
Board of Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of such Series (giving due effect to the
differences among the various Classes within each such Series). If all of
the assets of the Trust have been so sold, conveyed and transferred, the
Trust shall be dissolved; and if all of the assets of a Series have been so
sold, conveyed and transferred, such Series and the Classes thereof shall
be dissolved. In all respects not governed by the DSTA, the 1940 Act or
other applicable law, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to accomplish such
sale, conveyance and transfer, including the power to create one or more
separate statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred and to
provide for the conversion of Shares into beneficial interests in such
separate statutory trust or trusts.
Section 3. MASTER FEEDER STRUCTURE. If permitted by the 1940 Act, the
Board of Trustees, by vote of a majority of the Trustees, and without a
Shareholder vote, may cause the Trust or any one or more Series to convert
to a master feeder structure (a structure in which a feeder fund invests
all of its assets in a master fund, rather than making investments in
securities directly) and thereby cause existing Series of the Trust to
either become feeders in a master fund, or to become master funds in which
other funds are feeders.
Section 4. ABSENCE OF APPRAISAL OR DISSENTERS' RIGHTS. No Shareholder
shall be entitled, as a matter of right, to relief as a dissenting
Shareholder in respect of any proposal or action involving the Trust or any
Series or any Class thereof.
ARTICLE IX.
AMENDMENTS
Section 1. AMENDMENTS GENERALLY. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed by
not less than a majority of the Board of Trustees and, to the extent
required by this Declaration of Trust, the 1940 Act or the requirements of
any securities exchange on which Shares are listed for trading, by approval
of such amendment by the Shareholders in accordance with Article III,
Section 6 hereof and Article V hereof. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and approval
or upon such future date and time as may be stated therein. The Certificate
of Trust shall be restated and/or amended at any time by the Board of
Trustees, without Shareholder approval, to correct any inaccuracy contained
therein. Any such restatement and/or amendment of the Certificate of Trust
shall be executed by at least one (1) Trustee and shall be effective
immediately upon its filing with the office of the Secretary of State of
the State of Delaware or upon such future date as may be stated therein.
ARTICLE X.
MISCELLANEOUS
Section 1. REFERENCES: HEADINGS: COUNTERPARTS. In this Declaration of
Trust and in any restatement hereof and/or amendment hereto, references to
this instrument, and all expressions of similar effect to "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument as so
restated and/or amended. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect
the meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each other, as
applicable. Any references herein to specific sections of the DSTA, the
Code or the 1940 Act shall refer to such sections as amended from time to
time or any successor sections thereof. This instrument may be executed in
any number of counterparts, each of which shall be deemed an original.
Section 2. APPLICABLE LAW. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the
laws of the State of Delaware and the applicable provisions of the 1940 Act
and the Code. The Trust shall be a Delaware statutory trust pursuant to the
DSTA, and without limiting the provisions hereof, the Trust may exercise
all powers which are ordinarily exercised by such a statutory trust.
Section 3. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable, and if
the Board of Trustees shall determine, with the advice of counsel, that any
of such provisions is in conflict with the 1940 Act, the Code, the DSTA, or
with other applicable laws and regulations, the conflicting provision shall
be deemed not to have constituted a part of this Declaration of Trust from
the time when such provisions became inconsistent with such laws or
regulations; provided, however, that such determination shall not affect
any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this Declaration of Trust in any jurisdiction.
Section 4. STATUTORY TRUST ONLY. It is the intention of the Trustees
to create hereby a statutory trust pursuant to the DSTA, and thereby to
create the relationship of trustee and beneficial owners within the meaning
of the DSTA between, respectively, the Trustees and each Shareholder. It is
not the intention of the Trustees to create a general or limited
partnership, limited liability company, joint stock association,
corporation, bailment, or any form of legal relationship other than a
statutory trust pursuant to the DSTA. Nothing in this Declaration of Trust
shall be construed to make the Shareholders, either by themselves or with
the Trustees, partners or members of a joint stock association.
Section 5. USE OF THE NAMES "FRANKLIN," "▇▇▇▇▇▇▇▇▇," "FIDUCIARY
TRUST," AND/OR "INSTITUTIONAL FIDUCIARY TRUST". The Board of Trustees
expressly agrees and acknowledges that the names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and "Institutional Fiduciary Trust" are the sole
property of Franklin Resources, Inc. ("FRI"). FRI has granted to the Trust
a non-exclusive license to use such names as part of the name of the Trust
now and in the future. The Board of Trustees further expressly agrees and
acknowledges that the non-exclusive license granted herein may be
terminated by FRI if the Trust ceases to use FRI or one of its Affiliates
as Investment Adviser or to use other Affiliates or successors of FRI for
such purposes. In such event, the nonexclusive license may be revoked by
FRI and the Trust shall cease using the names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," "Institutional Fiduciary Trust" or any name misleadingly
implying a continuing relationship between the Trust and FRI or any of its
Affiliates, as part of its name unless otherwise consented to by FRI or any
successor to its interests in such names.
The Board of Trustees further understands and agrees that so long as FRI
and/or any future advisory Affiliate of FRI shall continue to serve as the
Trust's Investment Adviser, other registered open- or closed-end investment
companies ("funds") as may be sponsored or advised by FRI or its Affiliates
shall have the right permanently to adopt and to use the names "Franklin",
"▇▇▇▇▇▇▇▇▇," "Fiduciary Trust" and/or "Institutional Fiduciary Trust" in their
names and in the names of any series or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of Franklin California Tax-Free Income
Fund named below do hereby make and enter into this Agreement and Declaration
of Trust as of the date first written above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. HOLIDAY
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee ▇▇▇▇▇ ▇. Holiday, Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee