NAME OF REGISTRANT:
▇▇▇▇▇▇▇▇▇ FUNDS
File No. 811-02781
EXHIBIT ITEM: Copies of any material amendments to the
registrant's charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
▇▇▇▇▇▇▇▇▇ FUNDS
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted October 18, 2006;
current Amended and Restated Agreement and Declaration of Trust adopted
May 18, 2018.)
TABLE OF CONTENTS
Page
Article I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
Article II PURPOSE OF TRUST 4
Article III SHARES 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal Liability 10
Section 5. Power of Board of Trustees to Make Tax Status Election 10
Section 6. Establishment and Designation of Series and Classes 10
Section 7. Indemnification of Shareholders 14
Article IV THE BOARD OF TRUSTEES 14
Section 1. Number, Election, Term, Removal and Resignation 14
Section 2. Trustee Action by Written Consent Without a Meeting 15
Section 3. Powers; Other Business Interests; Quorum and Required Vote 16
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 19
Article V SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote 20
Section 3. Shareholder Action by Written Consent Without a Meeting 21
Section 4. Record Dates 21
Section 5. Additional Provisions 22
Article VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 23
Section 1. Determination of Net Asset Value, Net Income and Distributions 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
Article VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 27
Section 1. Limitation of Liability 27
Section 2. Indemnification 28
Section 3. Insurance 29
Section 4. Derivative Actions 30
Section 5. Jurisdiction and Waiver of Jury Trial 30
Article VIII CERTAIN TRANSACTIONS 31
Section 1. Dissolution of Trust or Series 31
Section 2. Merger or Consolidation; Conversion; Reorganization 32
Section 3. Master Feeder Structure 34
Section 4. Absence of Appraisal or Dissenters' Rights 34
Article IX AMENDMENTS 34
Section 1. Amendments Generally 34
Article X MISCELLANEOUS 35
Section 1. References; Headings; Counterparts 35
Section 2. Applicable Law 35
Section 3. Provisions in Conflict with Law or Regulations 36
Section 4. Statutory Trust Only 36
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust,"
and/or "Institutional Fiduciary Trust" 36
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
▇▇▇▇▇▇▇▇▇ FUNDS
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of
this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS ▇▇▇▇▇▇▇▇▇ Funds (the "Trust") was formed on October 18, 2006
under the name "▇▇▇▇▇▇▇▇▇ Funds Trust" by its Trustees by the filing
of the Certificate of Trust with the Office of the Secretary of
State of the State of Delaware pursuant to an Agreement and
Declaration of Trust dated as of October 18, 2006
(the "Original Declaration of Trust"), and the name of the
Trust was changed to "▇▇▇▇▇▇▇▇▇ Funds" pursuant to the
filing of a Certificate of Amendment to the Certificate of
Trust with the Office of the Secretary of State of the
State of Delaware on January 4, 2007; and
WHEREAS this Trust has been formed to carry on the business
of an open-end management investment company as defined
in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into
two or more Classes, to issue its Shares in separate Series,
to divide Shares of any Series into two or more Classes and to issue
Classes of the Trust or the Series, if any, all in accordance
with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming
into their hands as trustees of a Delaware statutory trust in
accordance with the provisions of the Delaware Statutory Trust Act,
as amended from time to time, and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust may from
time to time acquire in any manner shall be managed and disposed
of upon the following terms and conditions as hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having
become a Trustee of the Trust, and on every Shareholder, by virtue
of having become a Shareholder of the Trust, pursuant to the terms
of this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "▇▇▇▇▇▇▇▇▇ Funds"
and the Board of Trustees shall conduct the business of the Trust
under that name, or any other name as it may from time to time
designate. The Trustees may, without Shareholder approval,
change the name of the Trust or any Series or Class. Any
name change of any Series or Class shall become effective
upon approval by the Trustees of such change or any
document (including any registration statement) reflecting
such change, or at such later time as may be approved by the
Trustees. Any name change of the Trust shall become effective
upon the filing of a certificate of amendment under the DSTA
reflecting such change, or at such later time specified in
such certificate of amendment. Any such action shall have the
status of an amendment to this Declaration of Trust. In the event
of any name change, the Trustees shall cause notice to be given to the
affected Shareholders within a reasonable time after the implementation
of such change, which notice will be deemed given if the changed name
is reflected in any registration statement. The Trust shall constitute
a Delaware statutory trust in accordance with the DSTA.
Section 2. Offices of the Trust. The Board may at any time
establish offices of the Trust at any place or places where the
Trust intends to do business.
Section 3. Registered Agent and Registered Office. The name of
the registered agent of the Trust and the address of the registered
office of the Trust are as set forth in the Trust's Certificate of Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations thereunder, all as adopted or amended
from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person"
as such term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from time
to time pursuant to Article IV hereof, having the powers and duties
set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended, restated
or supplemented from time to time in accordance with Article VIII therein.
Such By-Laws may contain any provision not inconsistent with
applicable law or this Declaration of Trust, relating to the
governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of
trust of the Trust filed with the office of the Secretary of
State of the State of Delaware as required under the DSTA to
form the Trust, as such certificate shall be amended, restated
or supplemented from time to time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust or
of a Series of the Trust established and designated under and
in accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986
and the rules and regulations thereunder, all as adopted or
amended from time to time;
(h) "Commission" shall have the meaning given that term
in the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 Del. C. 3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended, restated or
supplemented from time to time;
(k) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that
term in the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person,
as defined below, furnishing services to the Trust pursuant to any
investment advisory or investment management contract described
in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any
part of any period during (i) which an emergency exists as a
result of which disposal by the Trust of securities or other
assets owned by the Trust is not reasonably practicable; (ii)
which it is not reasonably practicable for the Trust fairly
to determine the net asset value of its assets; or (iii) such
other period as the Commission may by order permit for the
protection of investors;
(o) "Person" shall mean a natural person, partnership,
limited partnership, limited liability company, trust,
estate, association, corporation, organization, custodian,
nominee or any other individual or entity in its own or
any representative capacity, in each case, whether
domestic or foreign, and a statutory trust or a foreign
statutory or business trust;
(p) "Principal Underwriter" shall have the meaning
given that term in the 1940 Act;
(q) "Series" shall mean each Series of Shares established
and designated under and in accordance with the provisions
of Article III hereof;
(r) "Shares" shall mean the transferable shares of beneficial
interest into which the beneficial interest in the Trust shall be
divided from time to time, and shall include fractional and whole Shares;
(s) "Shareholder" shall mean a record owner of Shares pursuant
to the By-Laws;
(t) "Trust" shall mean ▇▇▇▇▇▇▇▇▇ Funds, the Delaware statutory trust
formed under the Original Declaration of Trust, as amended, and by
filing of the Certificate of Trust with the office of the Secretary
of State of the State of Delaware, and governed by this Declaration
of Trust;
(u) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of
the Trust, or one or more of any Series thereof, including, without
limitation, the rights referenced in Article X, Section 5 hereof; and
(v) "Trustee" or "Trustees" shall mean each Person who signs this
Declaration of Trust as a trustee and all other Persons who may, from
time to time, be duly elected or appointed, qualified and serving on the
Board of Trustees in accordance with the provisions hereof and the
By-Laws, so long as such signatory or other Person continues in
office in accordance with the terms hereof and the By-Laws.
Reference herein to a Trustee or the Trustees shall refer to
such Person or Persons in such Person's or Persons' capacity
as a trustee or trustees hereunder and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the
1940 Act, directly, or if one or more Series is established hereunder,
through one or more Series, investing primarily in securities, and to
exercise all of the powers, rights and privileges granted to, or
conferred upon, a statutory trust formed under the DSTA, including,
without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in connection
therewith, to make any changes in the investment of the assets of
the Trust, to hold part or all of its funds in cash, to hold cash
uninvested, to subscribe for, invest in, reinvest in, purchase
or otherwise acquire, own, hold, pledge, sell, assign, mortgage,
transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or
property of every nature and kind, including, without limitation,
all types of bonds, debentures, stocks, shares, units of beneficial
interest, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, money market instruments,
certificates of deposit or indebtedness, bills, notes, mortgages,
commercial paper, repurchase or reverse repurchase agreements, bankers'
acceptances, finance paper, and any options, certificates, receipts,
warrants, futures contracts or other instruments representing rights
to receive, purchase or subscribe for the same, or evidencing or
representing any other rights or interests therein or in any
property or assets, and other securities of any kind, as the
foregoing are issued, created, guaranteed, or sponsored by any
and all Persons, including, without limitation, states, territories,
and possessions of the United States and the District of Columbia
and any political subdivision, agency, or instrumentality thereof,
any foreign government or any political subdivision of the
U.S. Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by
any corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof,
or by any corporation or organization organized under any
foreign law, or in "when issued" contracts for any such securities;
(b) To exercise any and all rights, powers and privileges with reference
to or incident to ownership or interest, use and enjoyment of any of
such securities and other instruments or property of every kind and
description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign,
exchange, lend, transfer, mortgage, hypothecate, lease, pledge or
write options with respect to or otherwise deal with, dispose of,
use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and
other instruments or property, the right to consent and otherwise
act with respect thereto, with power to designate one or more
Persons, to exercise any of said rights, powers, and privileges
in respect of any of said instruments, and to do any and all
acts and things for the preservation, protection, improvement
and enhancement in value of any of such securities and other
instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in
any property rights relating to any or all of the assets of the
Trust or any Series, subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such Person or Persons
as the Trustees shall deem proper, granting to such Person or Persons
such power and discretion with relation to securities or property
as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities and/or
other property;
(f) To hold any security or property in a form not indicating
that it is trust property, whether in bearer, unregistered or
other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise
or to authorize the custodian or a subcustodian or a nominee or
nominees to deposit the same in a securities depository,
subject in each case to proper safeguards according to the
usual practice of investment companies or any rules or
regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or
issuer of any security which is held in the Trust; to consent
to any contract, lease, mortgage, purchase or sale of property by
such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate
to them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion
of the expenses and compensation of such committee, depositary
or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Board of Trustees may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust
or payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims
and liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Adviser,
Principal Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the By-Laws and
by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy,
property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop,
improve, manage, subdivide, and generally to deal and trade
in real property, improved and unimproved, and wheresoever
situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes
of the Trust, and to mortgage or pledge the whole or any part
of the property and franchises of the Trust, real,
personal, and mixed, tangible or intangible, and wheresoever
situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade
and deal in stocks, Shares, bonds, debentures and other securities,
instruments or other property of the Trust, from time to time, to
such extent as the Board of Trustees shall, consistent with the
provisions of this Declaration of Trust, determine; and to
re-acquire and redeem, from time to time, its Shares or, if any,
its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise,
abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating to the
Trust, and out of the assets of the Trust to pay or to satisfy
any debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include
without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding,
dispute, claim, or demand, derivative or otherwise, brought by
any Person, including a Shareholder in the Shareholder's own
name or the name of the Trust, whether or not the Trust or
any of the Trustees may be named individually therein or the
subject matter arises by reason of business for or on
behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other
states, territories, districts and United States dependencies
and in foreign countries, all of the foregoing powers, rights
and privileges, and the enumeration of the foregoing powers
shall not be deemed to exclude any powers, rights or
privileges so granted or conferred; and
(u) In general, to carry on any other business in
connection with or incidental to its trust purposes, to do
everything necessary, suitable or proper for the
accomplishment of such purposes or for the attainment of
any object or the furtherance of any power hereinbefore set
forth, either alone or in association with others, and to
do every other act or thing incidental or appurtenant to,
or growing out of, or connected with, its business or
purposes, objects or powers.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or
one or more of its Series. Neither the Trust nor the
Board of Trustees shall be required to obtain any court
order to deal with any assets of the Trust or take any
other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided
that the foregoing enumeration of specific purposes, objects
and powers shall not be held to limit or restrict in any
manner the powers of the Trust, and that they are in furtherance of,
and in addition to, and not in limitation of, the general
powers conferred upon the Trust by the DSTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one
thing be deemed to exclude another, although it be of like nature,
not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided into
Shares, each Share without a par value. The number of Shares in
the Trust authorized hereunder, and of each Series and Class as
may be established from time to time, is unlimited. The Board of
Trustees may authorize the division of Shares into separate Classes of
Shares and into separate and distinct Series of Shares and the division
of any Series into separate Classes of Shares in accordance with
the 1940 Act. The different Series and Classes shall be established
and designated pursuant to Article III, Section 6 hereof. If no
separate Series or Classes of Series shall be established, the
Shares shall have the rights, powers and duties provided for herein
and in Article III, Section 6 hereof to the extent relevant and not
otherwise provided for herein, and all references to Series
and Classes shall be construed (as the context may require) to
refer to the Trust.
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.
The fact that a Series shall have initially been
established and designated without any specific establishment or
designation of Classes (i.e., that all Shares of such Series are
initially of a single Class) shall not limit the authority of the
Board of Trustees to establish and designate separate Classes of
said Series. The fact that a Series shall have more than one
established and designated Class, shall not limit the authority
of the Board of Trustees to establish and designate
additional Classes of said Series.
(b) The Board of Trustees shall have the power to issue
authorized, but unissued Shares of the Trust, or any Series
and Class thereof, from time to time for such consideration
paid wholly or partly in cash, securities or other property,
as may be determined from time to time by the Board of Trustees,
subject to any requirements or limitations of the 1940 Act. The
Board of Trustees, on behalf of the Trust, may acquire and hold as
treasury shares, reissue for such consideration and on such terms
as it may determine, or cancel, at its discretion from time to time,
any Shares reacquired by the Trust. The Board of Trustees may
classify, reclassify or convert any unissued Shares or any Shares
of the Trust or any Series or Class thereof, that were previously
issued and are reacquired, into one or more Series or Classes that
may be established and designated from time to time and, in connection
therewith, cause some or all of the Shareholders of the Trust, such
Series or Class to become Shareholders of such other Series or Class.
Notwithstanding the foregoing, the Trust and any Series thereof may
acquire, hold, sell and otherwise deal in, for purposes of investment
or otherwise, the Shares of any other Series of the Trust or Shares
of the Trust, and such Shares shall not be deemed treasury shares or
cancelled.
(c) Subject to the provisions of Section 6 of this Article III,
each Share shall entitle the holder to voting rights as provided in
Article V hereof. Shareholders shall have no preemptive or other
right to subscribe for new or additional authorized, but unissued
Shares or other securities issued by the Trust or any Series thereof.
The Board of Trustees may from time to time divide or combine the
Shares of the Trust or any particular Series thereof into a greater
or lesser number of Shares of the Trust or that Series, respectively.
Such division or combination shall not materially change the
proportionate beneficial interests of the holders of Shares of
the Trust or that Series, as the case may be, in the Trust
Property at the time of such division or combination that
is held with respect to the Trust or that Series, as the
case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an economic
or other interest, may acquire, own, hold and dispose of
Shares in the Trust or any Series and Class thereof, whether
such Shares are authorized but unissued, or already outstanding,
to the same extent as if such Person were not a Trustee, officer
or other agent of the Trust; and the Trust or any Series may
issue and sell and may purchase such Shares from any such Person
or any such organization, subject to the limitations,
restrictions or other provisions applicable to the sale or
purchase of such Shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership of
Shares shall be recorded on the books of the Trust kept
by the Trust or by a transfer or similar agent for the
Trust, which books shall be maintained separately for
the Shares of the Trust and each Series and each Class
thereof that has been established and designated.
No certificates certifying the ownership of Shares shall be
issued except as the Board of Trustees may otherwise determine
from time to time. The Board of Trustees may make such rules
not inconsistent with the provisions of the 1940 Act as it
considers appropriate for the issuance of Share certificates,
the transfer of Shares of the Trust and each Series and
Class thereof, if any, and similar matters. The record books
of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as
to who are the Shareholders of the Trust and each Series
and Class thereof and as to the number of Shares of the
Trust and each Series and Class thereof held from time to
time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but unissued
Shares to such Persons, at such times, on such terms, and for
such consideration as the Board of Trustees may from time
to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or
fractional Shares of the Trust or such Series thereof
(and Class thereof, if any), as the purchaser may select,
at the net asset value per Share, subject to Section 22 of
the 1940 Act, and the rules and regulations adopted thereunder;
provided, however, that the Board of Trustees may, in its
sole discretion, permit the Principal Underwriter to impose
a sales charge upon any such sale. Every Shareholder by
virtue of having become a Shareholder shall be bound by
the terms of this Declaration of Trust. Ownership of Shares
shall not make any Shareholder a third-party beneficiary
of any contract entered into by the Trust or any Series.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to Shareholders only
the rights provided in this Declaration of Trust, the By-Laws, and under
applicable law. Ownership of Shares shall not entitle the Shareholder
to any title in or to the whole or any part of the Trust Property
or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Subject to Article VIII, Section 1 hereof,
the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof
shall not operate to dissolve the Trust or any such Series, nor
entitle the representative of any deceased, incapacitated, dissolved,
terminated or bankrupt Shareholder to an accounting or to take any
action in court or elsewhere against the Trust, the Trustees or
any such Series, but entitles such representative only to the
rights of said deceased, incapacitated, dissolved, terminated or
bankrupt Shareholder under this Declaration of Trust. Neither
the Trust nor the Trustees, nor any officer, employee or agent
of the Trust, shall have any power to bind personally any
Shareholder, nor, except as specifically provided herein, to
call upon any Shareholder for the payment of any sum of money
other than such as the Shareholder may at any time personally
agree to pay. Each Share, when issued on the terms determined
by the Board of Trustees, shall be fully paid and nonassessable.
As provided in the DSTA, Shareholders shall be entitled to the same
limitation of personal liability as that extended to stockholders
of a private corporation organized for profit under
the General Corporation Law of the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status Election.
The Board of Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust and any Series as
may be permitted or required under the Code, without the vote of
any Shareholder.
Section 6. Establishment and Designation of Series and Classes.
The establishment and designation of any Series or Class shall be
effective, without the requirement of Shareholder approval, upon the
adoption of a resolution by not less than a majority of the then
Board of Trustees, which resolution shall set forth such establishment
and designation whether directly in such resolutions or by reference
to, or approval of, another document that sets forth the designation
or otherwise identifies such Series or Class, including any registration
statement of the Trust and any amendment of this Declaration of Trust,
and may provide, to the extent permitted by the DSTA, for rights,
powers and duties of such Series or Class (including variations in
the relative rights and preferences as between the different Series
and Classes) otherwise than as provided herein. Any action
that may be taken by the Board of Trustees
with respect to any Series or Class, including any addition,
modification, division, combination, classification,
reclassification, change of name or termination, may be made
in the same manner as the establishment of such Series or Class.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall
be maintained for each Series, and the assets and liabilities
belonging to any such Series shall be held and accounted for
separately from the assets and liabilities of the Trust or
any other Series. Each Class of the Trust shall be
separate and distinct from any other Class of the Trust.
Each Class of a Series shall be separate and distinct from any
other Class of the Series. As appropriate, in a manner
determined by the Board of Trustees, the liabilities belonging
to any such Class shall be held and accounted for separately
from the liabilities of the Trust, the Series or any other
Class and separate and distinct records on the books of the
Trust for the Class shall be maintained for this purpose.
Subject to Article II hereof, each such Series shall operate as
a separate and distinct investment medium, with separately
defined investment objectives and policies.
Shares of each Series (and Class where applicable) established
and designated pursuant to this Section 6, unless otherwise
provided to the extent permitted by the DSTA, in the resolution
establishing and designating such Series or Class, shall have
the following rights, powers and duties:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in
which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
be held with respect to that Series for all purposes,
subject only to the rights of creditors with respect to
that Series, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds,
in whatever form the same may be, are herein referred to as
"assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds
thereof, funds or payments which are not readily identifiable as
assets held with respect to any particular Series
(collectively "General Assets"), the Board of Trustees, or an
appropriate officer as determined by the Board of Trustees,
shall allocate such General Assets to, between or among any one
or more of the Series in such manner and on such basis as the
Board of Trustees, in its sole discretion, deems fair and equitable,
and any General Asset so allocated to a particular Series shall be
held with respect to that Series. Each such allocation by or
under the direction of the Board of Trustees shall be conclusive
and binding upon the Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or Class.
The assets of the Trust held with respect to a particular Series shall
be charged with the liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust incurred, contracted for or
otherwise existing with respect to such Series. Such liabilities,
debts, obligations, costs, charges, reserves and expenses incurred,
contracted for or otherwise existing with respect to a particular Series
are herein referred to as "liabilities held with respect to" that
Series. Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust which are not readily identifiable
as being liabilities held with respect to any particular Series
(collectively "General Liabilities") shall be allocated by the
Board of Trustees, or an appropriate officer as determined by
the Board of Trustees, to and among any one or more of the Series
in such manner and on such basis as the Board of Trustees in its
sole discretion deems fair and equitable. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and
expenses by or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders of all
Series for all purposes. All Persons who have extended credit
that has been allocated to a particular Series, or who have a
claim or contract that has been allocated to any particular Series,
shall look exclusively to the assets of that particular Series
for payment of such credit, claim, or contract. In the absence of an
express contractual agreement so limiting the claims of such
creditors, claimants and contract providers, each creditor, claimant
and contract provider shall be deemed nevertheless to have impliedly
agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series, whether such Series is now
authorized and existing pursuant to this Declaration of Trust or is
hereafter authorized and existing pursuant to this Declaration of Trust,
shall be enforceable against the assets held with respect to that Series
only, and not against the assets of any other Series or the Trust
generally and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the
Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of
this limitation on liabilities between and among Series shall be
set forth in the Certificate of Trust pursuant to the DSTA, and
upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to
limitations on liabilities between and among Series (and the statutory
effect under Section 3804 of setting forth such notice in the
Certificate of Trust) shall become applicable to the Trust and
each Series.Liabilities, debts, obligations, costs, charges,
reserves and expenses related to the distribution of, and
other identified expenses that should or may properly
be allocated to, the Shares of a particular
Class may be charged to and borne solely by such Class. The
bearing of expenses solely by a particular Class of Shares may be
appropriately reflected (in a manner determined by the Board of
Trustees) and may affect the net asset value attributable to, and
the dividend, redemption and liquidation rights of, such Class.
Each allocation of liabilities, debts, obligations, costs, charges,
reserves and expenses by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders of
all Classes for all purposes. All Persons who have extended credit
that has been allocated to a particular Class, or who have a claim
or contract that has been allocated to any particular Class, shall
look, and may be required by contract to look, exclusively to that
particular Class for payment of such credit, claim, or contract.
(c) Dividends, Distributions and Redemptions. Notwithstanding
any other provisions of this Declaration of Trust, including, without
limitation, Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon dissolution of the
Trust or of any Series with respect to, nor any redemption of, the
Shares of any Series or Class of such Series shall be effected
by the Trust other than from the assets held with respect to such
Series, nor, except as specifically provided in Section 7 of this
Article III, shall any Shareholder of any particular Series
otherwise have any right or claim against the assets held with
respect to any other Series or the Trust generally except, in the case
of a right or claim against the assets held with respect to any other
Series, to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Board of
Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as income
and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote in the aggregate without differentiation between the
Shares of the separate Series, if any, or separate Classes, if any;
provided that (i) with respect to any matter that affects only the
interests of some but not all Series, then only the Shares of such
affected Series, voting separately, shall be entitled to vote
on the matter, (ii) with respect to any matter that affects
only the interests of some but not all Classes, then only the
Shares of such affected Classes, voting separately, shall be
entitled to vote on the matter; and (iii) notwithstanding the
foregoing, with respect to any matter as to which the 1940 Act or
other applicable law or regulation requires voting, by Series or
by Class, then the Shares of the Trust shall vote as prescribed
in such law or regulation.
(e) Equality. Each Share of any particular Series shall be equal to
each other Share of such Series (subject to the rights and preferences
with respect to separate Classes of such Series).
(f) Fractions. A fractional Share of the Trust or a Series shall
carry proportionately all the rights and obligations of a whole
Share of the Trust or such Series, including rights with respect
to voting, receipt of dividends and distributions, redemption
of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series shall
have the right to exchange said Shares for Shares of one or more
other Series in accordance with such requirements and procedures
as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series or Classes.
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.
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.
The transactions in (i) and (ii) above may be effected through
share-for-share exchanges, transfers or sales of assets, Shareholder
in-kind redemptions and purchases, exchange offers, or any other method
approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall be
dissolved and terminated upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall wind
up the affairs of such Series in accordance with Article VIII,
Section 1 hereof. The Board of Trustees shall terminate any
particular Class: (i) upon approval by a majority of votes cast at a
meeting of the Shareholders of such Class, provided a quorum of
Shareholders of such Class are present, or by action of the
Shareholders of such Class by written consent without a meeting
pursuant to Article V, Section 3; or (ii) at the discretion of the
Board of Trustees either (A) at any time there are no Shares outstanding
of such Class, or (B) upon prior written notice to the Shareholders of
such Class; provided, however, that upon the termination of any
particular Series, every Class of such Series shall thereby be terminated.
Section 7. Indemnification of Shareholders. No Shareholder as such shall be
subject to any personal liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the Trust. If any
Shareholder or former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating exclusively to his or
her being or having been a Shareholder of the Trust or a
Shareholder of a particular Series thereof, and not because
of such Shareholder's actions or omissions, such Shareholder
or former Shareholder (or, in the case of a natural person,
his or her heirs, executors, administrators, or other legal
representatives or, in the case of a corporation or other
entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out of the
assets of the Trust or out of the assets of such Series thereof,
as the case may be, against all loss and expense, including
without limitation, attorneys' fees, arising from such claim or
demand; provided, however, such indemnity shall not cover (i)
any taxes due or paid by reason of such Shareholder's
ownership of any Shares and (ii) expenses charged to a
Shareholder pursuant to Article IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written
above, who shall hold office in accordance with paragraph (c) of
this Section 1 and as otherwise provided herein. In accordance
with Section 3801 of the DSTA, each Trustee shall become a
Trustee and be bound by this Declaration of Trust and the
By-Laws when such Person signs this Declaration of Trust
as a trustee and/or is duly elected or appointed,
qualified and serving on the Board of Trustees in
accordance with the provisions hereof and the By-Laws,
so long as such signatory or other Person continues in
office in accordance with the terms hereof.
(b) The number of Trustees constituting the entire
Board of Trustees may be fixed from time to time by the
vote of a majority of the then Board of Trustees;
provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than
fifteen (15). The number of Trustees shall not be
reduced so as to shorten the term of any Trustee then
in office.
(c) Each Trustee shall hold office for the lifetime
of the Trust or until such Trustee's earlier death,
resignation, removal, retirement or inability otherwise
to serve, or, if sooner than any of such events,
until the next meeting of Shareholders called for
the purpose of electing Trustees or consent of
Shareholders in lieu thereof for the election of
Trustees, and until the election and qualification
of his or her successor. Shareholders shall
not be entitled to elect Trustees except as
required by the 1940 Act. To the extent required
by the 1940 Act, the Shareholders shall elect the
Trustees on such dates as the Trustees may fix
from time to time. The Shareholders may elect
Trustees at any meeting of Shareholders called
for that purpose pursuant to the By-Laws.
In the event that after the proxy material
approved by the Trustees has been printed for
a meeting of Shareholders at which Trustees
are to be elected any one or more nominees
approved by the Trustees named in such proxy
material dies or become incapacitated or is otherwise unable or unwilling
to serve, the authorized number of Trustees shall be automatically
reduced by the number of such nominees, unless the Board of
Trustees prior to the meeting shall otherwise determine.
A meeting of Shareholders for the purpose of electing or
removing one or more Trustees shall be called as provided
in the By-Laws.
(d) Any Trustee may be removed, with or without cause,
by the Board of Trustees, by action of a majority of the
Trustees then in office, or by vote of the Shareholders at
any meeting called for that purpose.
(e) Any Trustee may resign at any time by giving
written notice to the secretary of the Trust or to a
meeting of the Board of Trustees. Such resignation
shall be effective upon receipt, unless specified
to be effective at some later time.
(f) The declination to serve, death, resignation,
retirement, removal, incapacity, or inability of the
Trustees, or any one of them, shall not operate to
dissolve or terminate the Trust or to revoke any
existing agency created pursuant to the terms of
this Declaration of Trust.
Section 2. Trustee Action by Written Consent
Without a Meeting. To the extent not inconsistent
with the provisions of the 1940 Act, any action
that may be taken at any meeting of the Board of
Trustees or any committee thereof may be taken without
a meeting and without prior written notice if a consent
or consents in writing setting forth the action so taken is
signed by the Trustees having not less than the minimum number
of votes that would be necessary to authorize or take
that action at a meeting at which all Trustees on the
Board of Trustees or any committee thereof, as the case
may be, were present and voted. Written consents of the
Trustees may be executed in one or more counterparts. A
consent transmitted by electronic transmission (as defined
in Section 3806 of the DSTA) by a Trustee shall be deemed
to be written and signed for purposes of this Section.
All such consents shall be filed with the secretary of
the Trust and shall be maintained in the Trust's records.
Section 3. Powers; Other Business Interests;
Quorum and Required Vote.
(a) Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust
(including every Series thereof) shall be managed by or
under the direction of the Board of Trustees, and such
Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility. The
Board of Trustees shall have full power and authority to
do any and all acts and to make and execute any and all
contracts and instruments that it may consider necessary
or appropriate in connection with the operation and administration
of the Trust (including every Series thereof). The
Board of Trustees shall not be bound or limited by present
or future laws or customs with regard to investments
by trustees or fiduciaries, but, subject to the
other provisions of this Declaration of Trust and the
By-Laws, shall have full authority and absolute power
and control over the assets and the business of the Trust
(including every Series thereof) to the same extent as if
the Board of Trustees was the sole owner of such assets and
business in its own right, including such authority, power
and control to do all acts and things as it, in its
sole discretion, shall deem proper to accomplish the
purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to
the requisite vote for such actions as set
forth in this Declaration of Trust and the
By-Laws: (1) adopt By-Laws not inconsistent with
applicable law or this Declaration of Trust; (2)
amend, restate and repeal such By-Laws, subject to
and in accordance with the provisions of such
By-Laws; (3) fill vacancies on the Board of Trustees
in accordance with this Declaration of Trust and the
By-Laws; (4) elect and remove such officers and
appoint and terminate such agents as it considers
appropriate, in accordance with this Declaration of
Trust and the By-Laws; (5) establish and terminate
one or more committees of the Board of Trustees
pursuant to the By-Laws; (6) place Trust Property
in custody as required by the 1940 Act, employ one
or more custodians of the Trust Property and authorize
such custodians to employ sub-custodians and to
place all or any part of such Trust Property with a
custodian or a custodial system meeting the
requirements of the 1940 Act; (7) retain a transfer
agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent,
or any number thereof or any other service provider
as deemed appropriate; (8) provide for the issuance
and distribution of Shares in the Trust or other
securities or financial instruments directly or
through one or more Principal Underwriters or otherwise;
(9) retain one or more Investment Adviser(s); (10)
re-acquire and redeem Shares on behalf of the Trust
and transfer Shares pursuant to applicable law; (11)
set record dates for the determination of Shareholders
with respect to various matters, in the manner
provided in Article V, Section 4 of this Declaration
of Trust; (12) declare and pay dividends and
distributions to Shareholders from the Trust Property,
in accordance with this Declaration of Trust
and the By-Laws; (13) establish, designate and
redesignate from time to time, in accordance with
the provisions of Article III, Section 6 hereof,
any Series or Class of the Trust or of a Series;
(14) hire personnel as staff for the Board of Trustees or, for those Trustees
who are not Interested Persons of the Trust, the Investment Adviser, or
the Principal Underwriter, set the compensation to be paid by the Trust
to such personnel, exercise exclusive supervision of such personnel,
and remove one or more of such personnel, at the discretion of the Board
of Trustees; (15) retain special counsel, other experts and/or consultants
for the Board of Trustees, for those Trustees who are not Interested
Persons of the Trust, the Investment Adviser, or the Principal Underwriter,
and/or for one or more of the committees of the Board of Trustees,
set the compensation to be paid by the Trust to such special counsel,
other experts and/or consultants, and remove one or more of such
special counsel, other experts and/or consultants, at the discretion
of the Board of Trustees; (16) engage in and prosecute, defend,
compromise, abandon, or adjust, by arbitration, or otherwise, any
actions, suits, proceedings, disputes, claims, and demands relating
to the Trust, and out of the assets of the Trust to pay or to
satisfy any debts, claims or expenses incurred in connection
therewith, including those of litigation, and such power shall
include, without limitation, the power of the Trustees, or any
appropriate committee thereof, in the exercise of their or its
good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise,
brought by any person, including a shareholder in its own
name or in the name of the Trust, whether or not the Trust
or any of the Trustees may be named individually therein or
the subject matter arises by reason of business for or on
behalf of the Trust; and (17) in general delegate such
authority as it considers desirable to any Trustee or officer
of the Trust, to any committee of the Trust, to any agent or
employee of the Trust or to any custodian, transfer, dividend
disbursing, shareholder servicing agent, Principal Underwriter,
Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section
3(a) are without prejudice to any other powers of the Board of
Trustees set forth in this Declaration of Trust and the By-Laws.
Any determination as to what is in the best interests of the
Trust or any Series or Class thereof and its Shareholders made by
the Board of Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the
Board of Trustees.
The Trustees shall be subject to the same fiduciary duties to
which the directors of a Delaware corporation would be subject
if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were
directors of such Delaware corporation, and such modified duties
shall replace any fiduciary duties to which the Trustees
would otherwise be subject. Without limiting the generality
of the foregoing, all actions and omissions of the Trustees
shall be evaluated under the doctrine commonly referred to
as the "business judgment rule," as defined and developed
under Delaware law, to the same extent that the same actions
or omissions of directors of a Delaware corporation in a
substantially similar circumstance would be evaluated under
such doctrine. Notwithstanding the foregoing, the
provisions of this Declaration of Trust and the By-Laws,
to the extent that they restrict or eliminate the
duties (including fiduciary duties) and liabilities
relating thereto of a Trustee otherwise applicable
under the foregoing standard or otherwise existing at
law or in equity, are agreed by each Shareholder and the
Trust to replace such other duties and liabilities of such
Trustee.
(b) Other Business Interests. The Trustees shall devote
to the affairs of the Trust (including every Series thereof)
such time as may be necessary for the proper performance of
their duties hereunder, but neither the Trustees nor the
officers, directors, shareholders, partners or employees of
the Trustees, if any, shall be expected to devote their
full time to the performance of such duties. The Trustees,
or any Affiliate, shareholder, officer, director,
partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in, or possess
an interest in, any business or venture other than the Trust or
any Series thereof, of any nature and description,
independently or with or for the account of others.
None of the Trust, any Series thereof or any Shareholder
shall have the right to participate or share in such
other business or venture or any profit or compensation
derived therefrom.
(c) Quorum and Required Vote. At all meetings of the
Board of Trustees, a majority of the Board of Trustees
then in office shall be present in person in order to
constitute a quorum for the transaction of business.
A meeting at which a quorum is initially present may continue
to transact business notwithstanding the departure of Trustees
from the meeting, if any action taken is approved by at least a
majority of the required quorum for that meeting. Subject to
Article III, Sections 1 and 6 of the By-Laws and except as otherwise
provided herein or required by applicable law, the vote of not
less than a majority of the Trustees present at a meeting
at which a quorum is present shall be the act of the Board
of Trustees.
Section 4. Payment of Expenses by the Trust.
Subject to the provisions of Article III,
Section 6 hereof, the Trustees or an authorized
officer of the Trust shall pay or cause to be paid
out of the principal or income of the Trust or any
particular Series or Class thereof, or partly out of
the principal and partly out of the income of the
Trust or any particular Series or Class thereof, and
charge or allocate the same to, between or among such
one or more of the Series or Classes that may be
established or designated pursuant to Article III,
Section 6 hereof, as the Trustees or such officer
deems fair, all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection
with the maintenance or operation of the Trust or a
particular Series or Class thereof, or in
connection with the management thereof, including,
but not limited to, the Trustees' compensation
and such expenses, fees, charges, taxes and
liabilities associated with the services of the
Trust's officers, employees, Investment Adviser(s),
Principal Underwriter, auditors, counsel, custodian,
sub-custodian, transfer agent, dividend disbursing
agent, shareholder servicing agent, and such other
agents or independent contractors and such other
expenses, fees, charges, taxes and liabilities as
the Board of Trustees may deem necessary or proper
to incur.
Section 5. Payment of Expenses by Shareholders.
The Board of Trustees shall have the power, as
frequently as it may determine, to cause any Shareholder
to pay directly, in advance or arrears, an amount fixed
from time to time by the Board of Trustees or an officer
of the Trust for charges of the Trust's custodian or
transfer, dividend disbursing, shareholder servicing
or similar agent-which are not customarily charged
generally to the Trust, a Series or a Class, where
such services are provided to such Shareholder
individually, rather than to all Shareholders
collectively, by setting off such amount due from
such Shareholder from the amount of (i) declared
but unpaid dividends or distributions owed such
Shareholder, or (ii) proceeds from the redemption
by the Trust of Shares from such Shareholder pursuant to
Article VI hereof.
Section 6. Ownership of Trust Property. Legal title
to all of the Trust Property shall at all times be vested in the
Trust, except that the Board of Trustees shall have the power to
cause legal title to any Trust Property to be held by or in the
name of any Person as nominee, on such terms as the Board of
Trustees may determine, in accordance with applicable law.
No creditor of any Trustee shall have any right to obtain possession,
or otherwise exercise legal or equitable remedies with respect to,
any Trust Property with respect to any claim against, or obligation of,
such Trustee in its individual capacity and not related to the Trust
or any Series or Class of the Trust. No Shareholder shall be deemed
to have a severable ownership in any individual asset of the Trust,
or belonging to any Series, or allocable to any Class thereof, or
any right of partition or possession thereof, but each Shareholder
shall have, except as otherwise provided for herein, a proportionate
undivided beneficial interest in the Trust or in assets belonging
to the Series (or allocable to the Class) in which the Shareholder
holds Shares. The Shares shall be personal property giving only
the rights specifically set forth in this Declaration of
Trust or the DSTA.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws
and the 1940 Act, the Board of Trustees may, at any
time and from time to time, contract for exclusive
or nonexclusive investment advisory or investment
management services for the Trust or for any Series
thereof with any corporation, trust, association
or other organization, including any Affiliate; and
any such contract may contain such other terms as
the Board of Trustees may determine, including
without limitation, delegation of authority to the
Investment Adviser to determine from time to time
without prior consultation with the Board of Trustees
what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or
reinvested in, sold, exchanged, transferred, mortgaged,
pledged, assigned, negotiated, or otherwise dealt with or
disposed of, and what portion, if any, of the Trust Property
shall be held uninvested and to make changes in the
Trust's or a particular Series' investments, or to engage in such
other activities, including administrative services, as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from
time to time, contract with any Person, including any Affiliate,
appointing it or them as the exclusive or nonexclusive
placement agent, distributor or Principal Underwriter
for the Shares of the Trust or one or more of the Series
or Classes thereof, or for other securities or financial
instruments to be issued by the Trust, or appointing
it or them to act as the administrator, fund accountant
or accounting agent, custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing
agent for the Trust or one or more of the Series or
Classes thereof.
(c) The Board of Trustees is further empowered,
at any time and from time to time, to contract with
any Persons, including any Affiliates, to provide
such other services to the Trust or one or more
of its Series, as the Board of Trustees determines to
be in the best interests of the Trust, such Series
and its Shareholders.
(d) None of the following facts or circumstances
shall affect the validity of any of the contracts
provided for in this Article IV, Section 7, or
disqualify any Shareholder, Trustee, employee or
officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust,
any Series thereof or the Shareholders, provided that the
establishment of and performance of each such contract
is permissible under the 1940 Act, and provided further
that such Person is authorized to vote upon such
contract under the 1940 Act:
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
the fact that any Person with which any type
of service contract provided for in this Article IV,
Section 7 may have been or may hereafter be made
also has such a service contract with one or more
other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7
is required to comply with this Declaration of Trust,
the By-Laws, the 1940 Act, other applicable law and
any stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions
of Article III, Section 6 hereof, the Shareholders shall
have the power to vote only (i) on such matters required
by this Declaration of Trust, the By-Laws, the 1940 Act,
other applicable law and any registration statement of the
Trust filed with the Commission, the registration of
which is effective; and (ii) on such other matters as
the Board of Trustees may consider necessary or
desirable. Subject to Article III hereof, the Shareholder
of record (as of the record date established pursuant to
Section 4 of this Article V) of each Share shall be
entitled to one vote for each full Share, and a fractional
vote for each fractional Share. Shareholders shall not
be entitled to cumulative voting in the election of Trustees
or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are
present in person or represented by proxy, shall
constitute a quorum at the Shareholders' meeting,
except when a larger quorum is required by this
Declaration of Trust, the By-Laws, applicable law or
the requirements of any securities exchange on which Shares
are listed for trading, in which case such quorum shall comply
with such requirements. When a separate vote by one or more
Series or Classes is required, forty percent (40%) of the
outstanding Shares of each such Series or Class entitled to
vote at a Shareholders' meeting of such Series or Class,
which are present in person or represented by proxy, shall
constitute a quorum at the Shareholders' meeting of such
Series or Class, except when a larger quorum is required by
this Declaration of Trust, the By-Laws, applicable
law or the requirements of any securities exchange on
which Shares of such Series or Class are listed for
trading, in which case such quorum shall comply with
such requirements.
(b) Subject to the provisions of Article III,
Section 6(d), when a quorum is present at any meeting, a
majority of the votes cast shall decide any questions
and a plurality shall elect a Trustee, except when a
larger vote is required by any provision of this Declaration of Trust or
the By-Laws or by applicable law. Pursuant to Article III, Section 6(d)
hereof, where a separate vote by Series and, if applicable, by Class is
required, the preceding sentence shall apply to such separate votes
by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes present
at a Shareholders' meeting; abstentions and broker non-votes will
not be treated as votes cast at such meeting. Abstentions and broker
non-votes, therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii) will have
no effect on proposals that require a plurality for approval,
or on proposals requiring an affirmative vote of a majority
of votes cast for approval.
Section 3. Shareholder Action by Written Consent Without
a Meeting. Any action which may be taken at any meeting of
Shareholders may be taken without a meeting if a consent or
consents in writing setting forth the action so taken is or
are signed by the holders of a majority of the Shares
entitled to vote on such action (or such different proportion
thereof as shall be required by law, the Declaration of Trust
or the By-Laws for approval of such action) and is or are
received by the secretary of the Trust either: (i) by the
date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set
by resolution of the Board, within 30 days after the
record date for such action as determined by reference to
Article V, Section 4(b) hereof. The written consent for
any such action may be executed in one or more
counterparts, each of which shall be deemed an original,
and all of which when taken together shall constitute one
and the same instrument. A consent transmitted by electronic
transmission (as defined in the DSTA) by a Shareholder or
by a Person or Persons authorized to act for a Shareholder
shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the Trust's
records. Any Shareholder that has given a written consent or
the Shareholder's proxyholder or a personal representative of the
Shareholder or its respective proxyholder may revoke the consent
by a writing received by the secretary of the Trust either:
(i) before the date set by resolution of the Board of Trustees
for the shareholder vote on such action; or (ii) if no date is
set by resolution of the Board, within 30 days after
the record date for such action as determined by reference
to Article V, Section 4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to
notice of, and to vote at, any meeting of Shareholders,
the Board of Trustees may fix a record date, which record date
shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Trustees, and
which record date shall not be more than one hundred and twenty (120) days
nor less than ten (10) days before the date of any such meeting.
A determination of Shareholders of record entitled to notice of or
to vote at a meeting of Shareholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Trustees
may fix a new record date for the adjourned meeting and shall fix
a new record date for any meeting that is adjourned for
more than one hundred and eighty (180) days from the record date
set for the original meeting. For purposes of determining
the Shareholders entitled to vote on any action without a meeting,
the Board of Trustees may fix a record date, which record date
shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Trustees,
and which record date shall not be more than thirty (30) days
after the date upon which the resolution fixing the record date is
adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
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.
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:
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;
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
delegate to an appropriate officer or officers of the Trust
the determination of such periodic record and/or payments dates
with respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding
the Board of Trustees from setting different record dates
for different Series or Classes.
Section 5. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes, meetings
and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value,
Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to determine from time to time the offering price
for authorized, but unissued, Shares of the Trust or any Series or Clas
s thereof, respectively, that shall yield to the Trust or
such Series or Class not less than the net asset value thereof,
in addition to any amount of applicable sales charge to be
paid to the Principal Underwriter or the selling broker
or dealer in connection with the sale of such Shares,
at which price the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any other
requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof,
the Board of Trustees may, subject to the 1940 Act, prescribe
(or delegate to any officer of the Trust or any other Person the
right to prescribe) such bases and time
(including any methodology or plan) for determining the net asset value
per Share of the Trust or any Series or Class thereof,
or net income attributable to the Shares of the Trust or any Series
or Class thereof or the declaration and payment of dividends
and distributions on the Shares of the Trust or any Series or
Class thereof, and the method of determining the Shareholders
to whom dividends and distributions are payable,
as it may deem necessary or desirable, and such dividends
and distributions may vary between the Classes to reflect differing
allocations of the expenses of the Trust between such Classes to
such extent and for such purposes as the Trustees may deem appropriate.
Without limiting the generality of the foregoing, but subject
to applicable federal law, including the 1940 Act, any dividend
or distribution may be paid in cash and/or securities or other property,
and the composition of any such distribution shall be determined by
the Trustees (or by any officer of the Trust or any other Person to
whom such authority has been delegated by the Trustees) and
may be different among Shareholders including differences
among Shareholders of the same Series or Class.
(c) The Shareholders of the Trust or any Series or Class,
if any, shall be entitled to receive dividends and distributions,
when, if and as declared by the Board of Trustees with respect thereto,
provided that with respect to Classes, such dividends and
distributions shall comply with the 1940 Act.
The right of Shareholders to receive dividends or other distributions
on Shares of any Class may be set forth in a plan adopted by
the Board of Trustees and amended from time to time pursuant to
the 1940 Act. No Share shall have any priority or preference over
any other Share of the Trust with respect to dividends or distributions
paid in the ordinary course of business or distributions
upon dissolution of the Trust made pursuant to Article VIII,
Section 1 hereof; provided however, that
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;
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
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
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
if the Shares of the Trust or of a Series are divided
into Classes thereof, all dividends and distributions from
the Trust Property and, if applicable, held with respect to
the Trust or such Series, shall be distributed to
each Class thereof according to the net asset value computed
for such Class and within such particular Class,
shall be distributed ratably to the Shareholders of such Class
according to the number of Shares of such Class held of record
by such Shareholders on the record date for any dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of
any funds of the Trust, or the applicable Series thereof, available
for dividends such sum or sums as the Board of Trustees may
from time to time, in its absolute discretion, think proper as
a reserve fund to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Trust,
or any Series thereof, or for such other lawful purpose as
the Board of Trustees shall deem to be in the best interests of
the Trust, or the applicable Series, as the case may be, and
the Board of Trustees may abolish any such reserve in the manner
in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the Trust relating
to the Shares, as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by
any Shareholder for redemption upon the presentation of a proper
instrument of transfer together with a request directed to
the Trust or a Person designated by the Trust that
the Trust purchase such Shares and/or in accordance with
such other procedures for redemption as the Board of Trustees
may from time to time authorize. If certificates have been issued
to a Shareholder, any request for redemption by such Shareholder
must be accompanied by surrender of any outstanding certificate
or certificates for such Shares in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied
by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value thereof
as determined by the Trustees (or by such Person to whom such
determination has been delegated)
(excluding any applicable redemption fee or sales load),
in accordance with this Declaration of Trust, the By-Laws,
the 1940 Act and other applicable law. Payments for Shares
so redeemed by the Trust shall be made in cash, except payment
for such Shares may, at the option of the Board of Trustees,
or such officer or officers as it may duly authorize in
its complete discretion, be made in kind or partially in cash
and partially in kind. In case of any payment in kind,
the Board of Trustees, or its authorized officers,
shall have absolute discretion as to what security or securities of
the Trust or the applicable Series shall be distributed in kind and
the amount of the same; and the securities shall be valued
for purposes of distribution at the value at which they were
appraised in computing the then current net asset value of
the Shares, provided that any Shareholder who cannot legally
acquire securities so distributed in kind shall receive cash to
the extent permitted by the 1940 Act. Shareholders shall bear
the expenses of in-kind transactions, including, but not limited to,
transfer agency fees, custodian fees and costs of
disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be
made by the Trust to the Shareholder within seven days after
the date on which the redemption request is received in proper
form and/or such other procedures authorized by the Board of Trustees
are complied with; provided, however, that if payment shall be made
other than exclusively in cash, any securities to be delivered
as part of such payment shall be delivered as promptly
as any necessary transfers of such securities on the books of
the several corporations or other Person whose securities are to be
delivered practicably can be made, which may not necessarily occur
within such seven-day period. In no case shall the Trust be liable
for any delay of any corporation or other Person in
transferring securities selected for delivery as all or
part of any payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are
subject to the provision that such obligations may be suspended or
postponed by the Board of Trustees (1) during any time
the New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays; (2) if permitted by the rules of the Commission,
during periods when trading on the Exchange is restricted;
or (3) during any National Financial Emergency.
The Board of Trustees may, in its discretion, declare that
the suspension relating to a National Financial Emergency shall terminate,
as the case may be, on the first business day on which the Exchange
shall have reopened or the period specified above shall have expired
(as to which, in the absence of an official ruling by the Commission,
the determination of the Board of Trustees shall be conclusive).
In the case of a suspension of the right of redemption
as provided herein, a Shareholder may either withdraw the request
for redemption or receive payment based on the net asset value
per Share next determined after the termination of such suspension,
less any fees imposed on such redemption.
(e) The right of any Shareholder of the Trust or any Series
or Class thereof to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with respect
to the Shares so redeemed, except the right of such Shareholder to
receive payment for such Shares, shall cease at the time
the purchase price of such Shares shall have been fixed,
as provided above.
Section 3. Redemptions at the Option of the Trust.
At the option of the Board of Trustees the Trust may,
from time to time, without the vote of the Shareholders,
but subject to the 1940 Act, redeem Shares or authorize the closing
of any Shareholder account, subject to such conditions and for
such reasons as may be established from time to time by
the Board of Trustees, including, without limitation,
(i) the determination of the Trustees that direct or
indirect ownership of Shares of the Trust or any Series
has or may become concentrated in such Shareholder to an
extent that would disqualify any Series as a regulated investment
company under the Code (or any successor statute thereto),
(ii) the failure of a Shareholder to supply a tax identification number
if required to do so, or to have the minimum investment required
(which may vary by Series or Class),
(iii) if the Share activity of the account or ownership of Shares
by a particular Shareholder is deemed by the Trustees either
to affect adversely the management of the Trust or any Series
or Class or not to be in the best interests of
the remaining Shareholders of the Trust or any Series or Class or
(iv) the failure of a Shareholder to pay when due for
the purchase of Shares issued to him. Any such redemption shall be
effected at the redemption price and in the manner provided
in this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable
in accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person
who is or was a Trustee, officer, employee or other agent of
the Trust or is or was serving at the request of the Trust as
a trustee, director, officer, employee or other agent of
another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; "Proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "Expenses" include
without limitation attorneys' fees and any expenses of establishing
a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to
any Shareholder for any act or omission that constitutes
a bad faith violation of the implied contractual covenant of
good faith and fair dealing, for such Agent's own willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Agent (such conduct referred to
herein as "Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to
the fullest extent that limitations on the liability of
Agents are permitted by the DSTA, the Agents shall not be responsible
or liable in any event for any act or omission of any other Agent
of the Trust or any Investment Adviser or Principal Underwriter
of the Trust.
(d) No Agent, when acting in its respective capacity as such,
shall be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in subsections (b) and
(c) of this Section 1, for any act, omission or obligation of
the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall,
in the performance of his or her duties, be fully and
completely justified and protected with regard to any act or
any failure to act resulting from reliance in good faith upon
the books of account or other records of the Trust, upon
an opinion of counsel, or upon reports made to the Trust
by any of its officers or employees or by the Investment Adviser,
the Principal Underwriter, any other Agent, selected dealers,
accountants, appraisers or other experts or consultants,
regardless of whether such counsel or expert may also be a Trustee,
as to matters the Trustee, officer or employee of
the Trust reasonably believes are within such Person's professional
or expert competence. The officers and Trustees may obtain the advice
of counsel or other experts with respect to the meaning and operation
of this Declaration of Trust, the By-Laws, applicable law and
their respective duties as officers or Trustees. No such officer
or Trustee shall be liable for any act or omission in accordance
with such advice, records and/or reports and no inference concerning
liability shall arise from a failure to follow such advice, records
and/or reports. The officers and Trustees shall not be required to
give any bond hereunder, nor any surety if a bond is required by
applicable law.
(f) The failure to make timely collection of dividends or interest,
or to take timely action with respect to entitlements, on
the Trust's securities issued in emerging countries, shall not be
deemed to be negligence or other fault on the part of any Agent,
and no Agent shall have any liability for such failure or for
any loss or damage resulting from the imposition by any government
of exchange control restrictions which might affect the liquidity
of the Trust's assets or from any war or political act of
any foreign government to which such assets might be exposed,
except, in the case of a Trustee or officer, for liability
resulting from such Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies
to events occurring at the time a Person serves as an Agent whether
or not such Person is an Agent at the time of any Proceeding in which
liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect
any right or protection of an Agent that exists at the time of
such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of
Trust Property, to the fullest extent permitted under applicable law,
any Person who was or is a party, potential party or non-party
witness or is threatened to be made a party, potential party or
non-party witness to any Proceeding by reason of the fact
that such Person is or was an Agent of the Trust, against Expenses,
judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such Person
acted in good faith or in the case of a criminal proceeding,
had no reasonable cause to believe the conduct of such Person
was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction or plea of nolo contendere or
its equivalent shall not of itself create a presumption
that the Person did not act in good faith or that
the Person had reasonable cause to believe that the Person's
conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision
to the contrary contained herein, there shall be no right to
indemnification for any liability arising by reason of the Agent's
Disqualifying Conduct. In respect of any claim, issue or matter as
to which that Person shall have been adjudged to be liable in
the performance of that Person's duty to the Trust or the Shareholders,
indemnification shall be made only to the extent that the court
in which that action was brought shall determine, upon application
or otherwise, that in view of all the circumstances of the case,
that Person was not liable by reason of that Person's
Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article shall be
made by the Trust if authorized in the specific case on
a determination that indemnification of the Agent is proper
in the circumstances by (i) a final decision on the merits
by a court or other body before whom the proceeding was brought
that the Agent was not liable by reason of Disqualifying Conduct
(including, but not limited to, dismissal of either a court action
or an administrative proceeding against the Agent for insufficiency
of evidence of any Disqualifying Conduct) or, (ii) in the absence of
such a decision, a reasonable determination, based upon a review of
the facts, that the Agent was not liable by reason of Disqualifying
Conduct, by (1) the vote of a majority of a quorum of the Trustees
who are not (x) "interested persons" of the Trust as defined
in Section 2(a)(19) of the 1940 Act, (y) parties to the proceeding,
or (z) parties who have any economic or other interest in connection
with such specific case (the "disinterested, non-party Trustees");
or (2) by independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before
the final disposition of the Proceeding on receipt of an undertaking
by or on behalf of the Agent to repay the amount of the advance
if it shall be determined ultimately that the Agent is not entitled
to be indemnified as authorized in this Article; provided,
that at least one of the following conditions for the advancement
of expenses is met: (i) the Agent shall provide a security for
his undertaking, (ii) the Trust shall be insured against losses
arising by reason of any lawful advances, or (iii) a majority
of a quorum of the disinterested, non-party Trustees of the Trust,
or an independent legal counsel in a written opinion,
shall determine, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that there is reason
to believe that the Agent ultimately will be found entitled to
indemnification.
(e) Other Contractual Rights. Nothing contained in
this Article shall affect any right to indemnification
to which Persons other than Trustees and officers of the Trust
or any subsidiary thereof may be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not
apply to any Proceeding against any trustee, investment manager or
other fiduciary of an employee benefit plan in that Person's
capacity as such, even though that Person may also be an Agent
of the Trust as defined in Section 1 of this Article.
Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager,
or other fiduciary may be entitled by contract or otherwise
which shall be enforceable to the extent permitted
by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding
any other provision in this Declaration of Trust to the contrary,
any amount of indemnification and any advancement of expenses
that any Agent is entitled to be paid under Section 2 shall be deemed
to be joint and several obligations of the Trust and each Series,
and the assets of the Trust and each Series shall be subject to
the claims of any Agent therefor under this Article VII; provided
that any such liability, expense or obligation may be allocated
and charged by the Board of Trustees between or among the Trust
and/or any one or more Series (and Classes) in such manner as
the Board of Trustees in its sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted
by applicable law, the Board of Trustees shall have the authority
to purchase with Trust Property, insurance for liability and for
all Expenses reasonably incurred or paid or expected to be paid
by an Agent in connection with any Proceeding in which such Agent
becomes involved by virtue of such Agent's actions, or omissions
to act, in its capacity or former capacity with the Trust,
whether or not the Trust would have the power to indemnify
such Agent against such liability.
Section 4. Derivative Actions. In addition to the requirements
set forth in Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only
if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon
the Board of Trustees to bring the subject action unless an effort to
cause the Board of Trustees to bring such an action is not likely to
succeed. For purposes of this Section 4, a demand on the Board of
Trustees shall only be deemed not likely to succeed and therefore
excused if a majority of the Board of Trustees, or a majority of
any committee established to consider the merits of such action,
is composed of Trustees who are not "independent trustees"
(as such term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a)
of this Section 4, Shareholders eligible to bring
such derivative action under the DSTA who hold at least 10% of
the outstanding Shares of the Trust, or 10% of the outstanding Shares
of the Series or Class to which such action relates, shall join
in the request for the Board of Trustees to commence such action;
and
(c) Unless a demand is not required under paragraph
(a) of this Section 4, the Board of Trustees must be afforded
a reasonable amount of time to consider such Shareholder request
and to investigate the basis of such claim. The Board of Trustees
shall be entitled to retain counsel or other advisors
in considering the merits of the request and shall require
an undertaking by the Shareholders making such request
to reimburse the Trust for the expense of any such advisors
in the event that the Board of Trustees determine not to
bring such action.
For purposes of this Section 4, the Board of Trustees may designate
a committee of one Trustee to consider a Shareholder demand
if necessary to create a committee with a majority of Trustees
who are "independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions
(collectively, "claims") that under applicable law must be brought
as derivative claims, each Shareholder of the Trust or
any Series or Class thereof agrees that any claim that affects
all Shareholders of a Series or Class equally, that is,
proportionately based on their number of Shares in such Series
or Class, must be brought as a derivative claim subject
to this Section 4 irrespective of whether such claim involves
a violation of the Shareholders' rights under this Declaration
of Trust or any other alleged violation of contractual or
individual rights that might otherwise give rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial.
In accordance with Section 3804(e) of the DSTA any suit,
action or proceeding brought by or in the right of any Shareholder
or any person claiming any interest in any Shares seeking
to enforce any provision of, or based on any matter arising out of
, or in connection with, this Declaration of Trust or the Trust,
any Series or Class or any Shares, including any claim of any nature
against the Trust, any Series or Class, the Trustees or officers
of the Trust, shall be brought exclusively in the Court of Chancery
of the State of Delaware to the extent there is subject matter
jurisdiction in such court for the claims asserted or, if not,
then in the Superior Court of the State of Delaware,
and all Shareholders and other such Persons hereby irrevocably
consent to the jurisdiction of such courts
(and the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waive, to the fullest extent
permitted by law, any objection they may make now or hereafter
have to the laying of the venue of any such suit, action or
proceeding in such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum
and further, in connection with any such suit, action, or proceeding
brought in the Superior Court in the State of Delaware,
all Shareholders and all other such Persons irrevocably waive
the right to a trial by jury to the fullest extent permitted by law
.. All Shareholders and other such Persons agree that service
of summons, complaint or other process in connection with any
proceedings may be made by registered or certified mail or
by overnight courier addressed to such Person at the address shown
on the books and records of the Trust for such Person or at
the address of the Person shown on the books and records of the Trust
with respect to the Shares that such Person claims an interest in.
Service of process in any such suit, action or proceeding against
the Trust or any Trustee or officer of the Trust may be made at
the address of the Trust's registered agent in the State of Delaware.
Any service so made shall be effective as if personally made in
the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series
shall have perpetual existence, except that the Trust
(or a particular Series) shall be dissolved:
(a) With respect to the Trust,
(i) upon the vote of the holders of not less than a majority of
the Shares of the Trust cast, or (ii) at the discretion of
the Board of Trustees either (A) at any time there are
no Shares outstanding of the Trust, or (B) upon prior written notice
to the Shareholders of the Trust; or
(b) With respect to a particular Series,
(i) upon the vote of the holders of not less than a majority
of the Shares of such Series cast, or
(ii) at the discretion of the Board of Trustees either
(A) at any time there are no Shares outstanding of such Series,
or (B) upon prior written notice to the Shareholders of such Series;
or
(c) With respect to the Trust (or a particular Series),
upon the occurrence of a dissolution or termination event
pursuant to any other provision of this Declaration of Trust
(including Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that cause
s the dissolution of the Trust.
Upon dissolution of the Trust
(or a particular Series, as the case may be), the Board of Trustees
shall (in accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and obligations of
the Trust and/or each Series
(or the particular Series, as the case may be), including,
without limitation, all contingent, conditional or unmatured claims
and obligations known to the Trust, and all claims and obligations
which are known to the Trust, but for which the identity of
the claimant is unknown. If there are sufficient assets held with
respect to the Trust and/or each Series of the Trust
(or the particular Series, as the case may be), such claims
and obligations shall be paid in full and any such provisions
for payment shall be made in full. If there are insufficient assets
held with respect to the Trust and/or each Series of the Trust
(or the particular Series, as the case may be), such claims and
obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to
the extent of assets available therefor. Any remaining assets
(including, without limitation, cash, securities or any combination
thereof) held with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) shall be
distributed to the Shareholders of the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) ratably
according to the number of Shares of the Trust and/or such Series
thereof (or the particular Series, as the case may be) held of
record by the several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the Trust or
a Series are divided into Classes thereof, any remaining assets
(including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust or such Series,
as applicable, shall be distributed to each Class of the Trust or
such Series according to the net asset value computed for such Class
and within such particular Class, shall be distributed ratably to
the Shareholders of such Class according to the number of Shares of
such Class held of record by the several Shareholders on the date
for such dissolution distribution. Upon the winding up of
the Trust in accordance with Section 3808 of the DSTA and
its termination, any one (1) Trustee shall execute, and cause
to be filed, a certificate of cancellation, with the office of
the Secretary of State of the State of Delaware in accordance with
the provisions of Section 3810 of the DSTA. In connection with
the dissolution and liquidation of the Trust or the termination of
any Series or any Class, the Trustees may provide for
the establishment and utilization of a liquidating trust or
similar vehicle.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger
or consolidation, the Board of Trustees, by vote of a majority of
the Trustees, may cause the Trust to merge or consolidate with or
into one or more statutory trusts or "other business entities"
(as defined in Section 3801 of the DSTA) formed or organized or
existing under the laws of the State of Delaware or
any other state of the United States or any foreign country
or other foreign jurisdiction. Any such merger or consolidation
shall not require the vote of the Shareholders unless
such vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at least thirty (30) days'
prior written notice to the Shareholders of such merger or
consolidation. By reference to Section 3815(f) of the DSTA,
any agreement of merger or consolidation approved in accordance
with this Section 2(a) may, without a Shareholder vote unless
required by the 1940 Act or the requirements of
any securities exchange on which Shares are listed for trading,
effect any amendment to this Declaration of Trust or
the By-Laws or effect the adoption of a new governing instrument
if the Trust is the surviving or resulting statutory trust
in the merger or consolidation, which amendment or new governing
instrument shall be effective at the effective time or date of the
merger or consolidation. In all respects not governed by the DSTA,
the 1940 Act, other applicable law or the requirements of
any securities exchange on which Shares are listed for trading,
the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or
consolidation, including the power to create one or
more separate statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred and
to provide for the conversion of Shares into beneficial interests
in such separate statutory trust or trusts. In connection with
any merger or consolidation, if the Trust is the surviving or
resulting statutory trust, any one (1) Trustee shall execute,
and cause to be filed, a certificate of merger or consolidation
in accordance with Section 3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority
of the Trustees, may cause (i) the Trust to convert to
an "other business entity" (as defined in Section 3801 of the DSTA)
formed or organized under the laws of the State of Delaware
as permitted pursuant to Section 3821 of the DSTA;
(ii) the Shares of the Trust or any Series or Class to be converted
into beneficial interests in another statutory trust
(or series or class thereof) created pursuant to this Section 2
of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to
the extent permitted by law. Any such statutory conversion,
Share conversion or Share exchange shall not require the vote
of the Shareholders unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders
of the Trust of any conversion of Shares of the Trust pursuant
to Subsections (b)(i) or (b)(ii) of this Section 2 or
exchange of Shares of the Trust pursuant to
Subsection (b)(iii) of this Section 2, and at least thirty (30) days'
prior written notice to the Shareholders of a particular Series
or Class of any conversion of Shares of such Series or Class
pursuant to Subsection (b)(ii) of this Section 2 or exchange
of Shares of such Series or Class pursuant to Subsection (b)(iii)
of this Section 2. In all respects not governed by the DSTA,
the 1940 Act, other applicable law or the requirements of
any securities exchange on which Shares are listed for trading,
the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish
a statutory conversion, Share conversion or Share exchange,
including the power to create one or more separate statutory trusts
to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide
for the conversion of Shares of the Trust or any Series or Class
thereof into beneficial interests in such separate statutory trust
or trusts (or series or class thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority
of the Trustees, may cause the Trust to sell, convey and transfer all
or substantially all of the assets of the Trust
("sale of Trust assets") or all or substantially all of the assets
associated with any one or more Series ("sale of such Series' assets")
or any one or more Classes ("sale of such Class's assets"),
to another trust, statutory trust, partnership, limited partnership,
limited liability company, corporation or other association
organized under the laws of any state, or to one or more separate
series or class thereof, or to the Trust to be held as assets
associated with one or more other Series or Classes of the Trust,
in exchange for cash, shares or other securities
(including, without limitation, in the case of a transfer to
another Series or Class of the Trust, Shares of such
other Series or Class) with such sale, conveyance and transfer either
(a) being made subject to, or with the assumption by the transferee
of, the liabilities associated with the Trust or the liabilities
associated with the Series or Class the assets of which are
so transferred, as applicable, or (b) not being made subject to,
or not with the assumption of, such liabilities. Any such sale,
conveyance and transfer shall not require the vote of
the Shareholders unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders
of the Trust of any such sale of Trust assets, at least
thirty (30) days' prior written notice to the Shareholders
of a particular Series of any sale of such Series' assets,
and at least thirty (30) days' prior written notice to
the Shareholders of a particular Class of any sale of
such Class's assets. Following such sale of Trust assets,
the Board of Trustees shall distribute such cash,
shares or other securities ratably among the Shareholders
of the Trust (giving due effect to the assets and
liabilities associated with and any other differences among
the various Series the assets associated with which have been
so sold, conveyed and transferred, and due effect to
the differences among the various Classes within each such Series).
Following a sale of such Series' assets, the Board of Trustees
shall distribute such cash, shares or other securities ratably
among the Shareholders of such Series (giving due effect to the
differences among the various Classes within each such Series).
Following a sale of such Class's assets, the Board of Trustees
shall distribute such cash, shares or other securities ratably
among the Shareholders of such Class. If all of the assets of
the Trust have been so sold, conveyed and transferred,
the Trust shall be dissolved; and if all of the assets of
a Series or Class have been so sold, conveyed and transferred,
such Series and the Classes thereof, or such Class,
shall be dissolved. In all respects not governed by the DSTA,
the 1940 Act or other applicable law, the Board of Trustees
shall have the power to prescribe additional procedures necessary
or appropriate to accomplish such sale, conveyance and transfer,
including the power to create one or more separate statutory trusts
to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for
the conversion of Shares into beneficial interests in such
separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by
the 1940 Act, the Board of Trustees, by vote of a majority
of the Trustees, and without a Shareholder vote, may cause
the Trust or any one or more Series to convert to
a master feeder structure (a structure in which a feeder fund
invests all of its assets in a master fund, rather than making
investments in securities directly) and thereby cause existing
Series of the Trust to either become feeders in a master fund,
or to become master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights.
No Shareholder shall be entitled, as a matter of right,
to relief as a dissenting Shareholder in respect of
any proposal or action involving the Trust or
any Series or any Class thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing
signed by not less than a majority of the Board of Trustees and,
to the extent required by the 1940 Act or the requirements of
any securities exchange on which Shares are listed for trading,
by approval of such amendment by the Shareholders in accordance
with Article III, Section 6 hereof and Article V hereof.
Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date
and time as may be stated therein. The Certificate of Trust shall
be restated and/or amended at any time by the Board of Trustees,
without Shareholder approval, to correct any inaccuracy contained
therein. Any such restatement and/or amendment of the Certificate
of Trust shall be executed by at least one (1) Trustee
and shall be effective immediately upon its filing with the office
of the Secretary of State of the State of Delaware or
upon such future date as may be stated therein.
ARTICLE X
MISCELLANEOUS
Section 1. References; Headings; Counterparts.
In this Declaration of Trust and in any restatement hereof and/or
amendment hereto, references to this instrument, and all expressions
of similar effect to "herein," "hereof" and "hereunder,"
shall be deemed to refer to this instrument as so restated
and/or amended. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of
this instrument. Whenever the singular number is used herein,
the same shall include the plural; and the neuter, masculine
and feminine genders shall include each other, as applicable.
Any references herein to specific sections of the DSTA,
the Code or the 1940 Act shall refer to such sections
as amended from time to time or any successor sections thereof.
This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created under
and is to be governed by and construed and administered according to
the laws of the State of Delaware and the applicable provisions of
the 1940 Act and the Code; provided, that, all matters relating to
or in connection with the conduct of Shareholders' and Trustees'
meetings (excluding, however, the Shareholders' right to vote),
including, without limitation, matters relating to or in connection
with record dates, notices to Shareholders or Trustees, nominations
and elections of Trustees, voting by, and the validity of,
Shareholder proxies, quorum requirements, meeting adjournments,
meeting postponements and inspectors, which are not specifically
addressed in this Declaration of Trust, in the By-Laws or in
the DSTA (other than DSTA Section 3809), or as to which
an ambiguity exists, shall be governed by
the Delaware General Corporation Law, and judicial
interpretations thereunder, as if the Trust were
a Delaware corporation, the Shareholders were shareholders
of such Delaware corporation and the Trustees were directors
of such Delaware corporation; provided, further, however,
that there shall not be applicable to the Trust, the Trustees,
the Shareholders or any other Person or to this Declaration of Trust
or the By-Laws (a) the provisions of Sections 3533, 3540 and 3583(a)
of Title 12 of the Delaware Code or (b) any provisions of the laws
(statutory or common) of the State of Delaware (other than the DSTA)
pertaining to trusts which relate to or regulate
(i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges,
(ii) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning
the acquisition, holding or disposition of real or
personal property, (iv) fees or other sums payable to trustees,
officers, agents or employees of a trust, (v) the allocation
of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature,
amount or concentration of trust investments or requirements
relating to the titling, storage or other manner of holding
trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on
the indemnification, acts or powers of trustees or other Persons,
which are inconsistent with the limitations of liabilities or
authorities and powers of the Trustees or officers of the Trust
set forth or referenced in this Declaration of Trust or
the By-Laws. The Trust shall be a Delaware statutory trust
pursuant to the DSTA, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily
exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with
the 1940 Act, the Code, the DSTA, or with other applicable laws
and regulations, the conflicting provision shall be deemed not
to have constituted a part of this Declaration of Trust from
the time when such provisions became inconsistent with such laws
or regulations; provided, however, that such determination
shall not affect any of the remaining provisions of this Declaration
of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in
such jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of this Declaration
of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of
the Trustees to create hereby a statutory trust pursuant to the DSTA,
and thereby to create the relationship of trustee and
beneficial owners within the meaning of the DSTA between,
respectively, the Trustees and each Shareholder.
It is not the intention of the Trustees to create a general
or limited partnership, limited liability company,
joint stock association, corporation, bailment, or any form of legal
relationship other than a statutory trust pursuant to the DSTA.
Nothing in this Declaration of Trust shall be construed to
make the Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and/or "Institutional Fiduciary Trust".
The Board of Trustees expressly agrees and acknowledges
that the names "▇▇▇▇▇▇▇▇," "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust,"
and "Institutional Fiduciary Trust" are the sole property
of Franklin Resources, Inc. ("FRI"). FRI has granted to the Trust
a non-exclusive license to use such names as part of the name of
the Trust now and in the future. The Board of Trustees further
expressly agrees and acknowledges that the non-exclusive license
granted herein may be terminated by FRI if the Trust ceases to
use FRI or one of its Affiliates as Investment Adviser or to use
other Affiliates or successors of FRI for such purposes.
In such event, the non-exclusive license may be revoked by FRI
and the Trust shall cease using the names "Franklin," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," "Institutional Fiduciary Trust" or any name
misleadingly implying a continuing relationship between
the Trust and FRI or any of its Affiliates, as part of its name
unless otherwise consented to by FRI or any successor to
its interests in such names.
The Board of Trustees further understands and agrees that so long as
FRI and/or any future advisory Affiliate of FRI shall continue
to serve as the Trust's Investment Adviser, other registered
open- or closed-end investment companies ("funds") as may be
sponsored or advised by FRI or its Affiliates shall have the right
permanently to adopt and to use the names
"Franklin", "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust" and/or
"Institutional Fiduciary Trust" in their names and in the names
of any series or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of ▇▇▇▇▇▇▇▇▇ Funds named below
do hereby make and enter into this Declaration of Trust as of the
date first written above.
/s/ Harris J. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee /s/ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, Trustee