NAME OF REGISTRANT:
▇▇▇▇▇▇▇▇ MANAGED TRUST
File No. 811-04894
EXHIBIT ITEM: Copies of any material amendments to the registrant's
charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
▇▇▇▇▇▇▇▇ MANAGED TRUST
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted July 7, 1999;
Amended and Restated Agreement and Declaration of Trust was adopted May
21, 2007;
current Amended and Restated Agreement and Declaration of Trust
adopted May 18, 2018.)
TABLE OF CONTENTS
Page
Article I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS 1
Section 1. Name 1
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
Article II PURPOSE OF TRUST 4
Article III SHARES 7
Section 1. Division of Beneficial Interest 7
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal Liability 9
Section 5. Power of Board of Trustees to Make Tax Status Election 10
Section 6. Establishment and Designation of Series and Classes 10
Section 7. Indemnification of Shareholders 14
Article IV THE BOARD OF TRUSTEES 14
Section 1. Number, Election, Term, Removal and Resignation 14
Section 2. Trustee Action by Written Consent Without a Meeting 15
Section 3. Powers; Other Business Interests; Quorum and Required Vote 15
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 18
Article V SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote 20
Section 3. Shareholder Action by Written Consent Without a Meeting 20
Section 4. Record Dates 21
Section 5. Additional Provisions 22
Article VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 22
Section 1. Determination of Net Asset Value, Net Income and
Distributions 22
Section 2. Redemptions at the Option of a Shareholder 24
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
Article VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 26
Section 1. Limitation of Liability 26
Section 2. Indemnification 27
Section 3. Insurance 29
Section 4. Derivative Actions 29
Section 5. Jurisdiction and Waiver of Jury Trial 30
Article VIII CERTAIN TRANSACTIONS 30
Section 1. Dissolution of Trust or Series 30
Section 2. Merger or Consolidation; Conversion; Reorganization 31
Section 3. Master Feeder Structure 33
Section 4. Absence of Appraisal or Dissenters' Rights 33
Article IX AMENDMENTS 34
Section 1. Amendments Generally 34
Article X MISCELLANEOUS 34
Section 1. References; Headings; Counterparts 34
Section 2. Applicable Law 34
Section 3. Provisions in Conflict with Law or Regulations 35
Section 4. Statutory Trust Only 35
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust,"
and/or "Institutional Fiduciary Trust" 35
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN MANAGED TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of this
18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Franklin Managed Trust (the "Trust") was formed on July 7, 1999
under the name "Franklin Managed 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 July 7, 1999 (the "Original Declaration of Trust"); and
WHEREAS this Trust has been formed to carry on the business of an open-end
management investment company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into two or more
Classes, to issue its Shares in separate Series, to divide Shares of any
Series into two or more Classes and to issue Classes of the Trust or the
Series, if any, all in accordance with the provisions hereinafter set
forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to
time, and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust may from time to
time acquire in any manner shall be managed and disposed of upon the
following terms and conditions as hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having become
a Trustee of the Trust, and on every Shareholder, by virtue of having
become a Shareholder of the Trust, pursuant to the terms of this
Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Franklin Managed Trust"
and the Board of Trustees shall conduct the business of the Trust under
that name, or any other name as it may from time to time designate. The
Trustees may, without Shareholder approval, change the name of the Trust
or any Series or Class. Any name change of any Series or Class shall
become effective upon approval by the Trustees of such change or any
document (including any registration statement) reflecting such change,
or at such later time as may be approved by the Trustees. Any name
change of the Trust shall become effective upon the filing of a
certificate of amendment under the DSTA reflecting such change, or at
such later time specified in such certificate of amendment. Any such
action shall have the status of an amendment to this Declaration of
Trust. In the event of any name change, the Trustees shall cause notice
to be given to the affected Shareholders within a reasonable time after
the implementation of such change, which notice will be deemed given if
the changed name is reflected in any registration statement. The Trust
shall constitute a Delaware statutory trust in accordance with the DSTA.
Section 2. Offices of the Trust. The Board may at any time
establish offices of the Trust at any place or places where the Trust
intends to do business.
Section 3. Registered Agent and Registered Office. The name of
the registered agent of the Trust and the address of the registered
office of the Trust are as set forth in the Trust's Certificate of Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations thereunder, all as adopted or amended from time to
time;
(b) "Affiliate" shall have the same meaning as "affiliated person" as
such term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from time
to time pursuant to Article IV hereof, having the powers and duties set
forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended, restated or
supplemented from time to time in accordance with Article VIII therein.
Such By-Laws may contain any provision not inconsistent with applicable
law or this Declaration of Trust, relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the
Trust filed with the office of the Secretary of State of the State of
Delaware as required under the DSTA to form the Trust, as such certificate
shall be amended, restated or supplemented from time to time and filed
with such office;
(f) "Class" shall mean each class of Shares of the Trust or of a Series
of the Trust established and designated under and in accordance with the
provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and the rules
and regulations thereunder, all as adopted or amended from time to time;
(h) "Commission" shall have the meaning given that term in the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C. 3801,
et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and Restated Agreement
and Declaration of Trust, as amended, restated or supplemented from time
to time;
(k) "General Liabilities" shall have the meaning given it in Article III,
Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that term in the
1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment
advisory or investment management contract described in Article IV,
Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any part
of any period during (i) which an emergency exists as a result of which
disposal by the Trust of securities or other assets owned by the Trust is
not reasonably practicable; (ii) which it is not reasonably practicable
for the Trust fairly to determine the net asset value of its assets; or
(iii) such other period as the Commission may by order permit for the
protection of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, in each case,
whether domestic or foreign, and a statutory trust or a foreign statutory
or business trust;
(p) "Principal Underwriter" shall have the meaning given that term in
the 1940 Act;
(q) "Series" shall mean each Series of Shares established and designated
under and in accordance with the provisions of Article III hereof;
(r) "Shares" shall mean the transferable shares of beneficial interest
into which the beneficial interest in the Trust shall be divided from
time to time, and shall include fractional and whole Shares;
(s) "Shareholder" shall mean a record owner of Shares pursuant to the
By-Laws;
(t) "Trust" shall mean Franklin Managed Trust, the Delaware statutory
trust formed under the Original Declaration of Trust, as amended, and by
filing of the Certificate of Trust with the office of the Secretary of
State of the State of Delaware, and governed by this Declaration of Trust;
(u) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of
the Trust, or one or more of any Series thereof, including, without
limitation, the rights referenced in Article X, Section 5 hereof; and
(v) "Trustee" or "Trustees" shall mean each Person who signs this
Declaration of Trust as a trustee and all other Persons who may, from
time to time, be duly elected or appointed, qualified and serving on the
Board of Trustees in accordance with the provisions hereof and the
By-Laws, so long as such signatory or other Person continues in office
in accordance with the terms hereof and the By-Laws. Reference herein
to a Trustee or the Trustees shall refer to such Person or Persons in
such Person's or Persons' capacity as a trustee or trustees hereunder
and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the
1940 Act, directly, or if one or more Series is established hereunder,
through one or more Series, investing primarily in securities, and to
exercise all of the powers, rights and privileges granted to, or
conferred upon, a statutory trust formed under the DSTA, including,
without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in connection therewith,
to make any changes in the investment of the assets of the Trust, to
hold part or all of its funds in cash, to hold cash uninvested, to
subscribe for, invest in, reinvest in, purchase or otherwise acquire,
own, hold, pledge, sell, assign, mortgage, transfer, exchange,
distribute, write options on, lend or otherwise deal in or dispose
of contracts for the future acquisition or delivery of fixed income
or other securities, and securities or property of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
shares, units of beneficial interest, preferred stocks, negotiable or
non-negotiable instruments, obligations, evidences of indebtedness,
money market instruments, certificates of deposit or indebtedness, bills,
notes, mortgages, commercial paper, repurchase or reverse repurchase
agreements, bankers' acceptances, finance paper, and any options,
certificates, receipts, warrants, futures contracts or other instruments
representing rights to receive, purchase or subscribe for the same, or
evidencing or representing any other rights or interests therein or in
any property or assets, and other securities of any kind, as the foregoing
are issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of
the United States and the District of Columbia and any political
subdivision, agency, or instrumentality thereof, any foreign government
or any political subdivision of the U.S. Government or any foreign
government, or any international instrumentality, or by any bank or
savings institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized under
any foreign law, or in "when issued" contracts for any such securities;
(b) To exercise any and all rights, powers and privileges with reference
to or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and
description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign, exchange,
lend, transfer, mortgage, hypothecate, lease, pledge or write options
with respect to or otherwise deal with, dispose of, use, exercise or
enjoy any rights, title, interest, powers or privileges under or with
reference to any of such securities and other instruments or property,
the right to consent and otherwise act with respect thereto, with power
to designate one or more Persons, to exercise any of said rights, powers,
and privileges in respect of any of said instruments, and to do any and
all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or
write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series, subject
to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such Person or Persons as the
Trustees shall deem proper, granting to such Person or Persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(e) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership of securities and/or other property;
(f) To hold any security or property in a form not indicating that it
is trust property, whether in bearer, unregistered or other negotiable
form, or in its own name or in the name of a custodian or subcustodian
or a nominee or nominees or otherwise or to authorize the custodian or a
subcustodian or a nominee or nominees to deposit the same in a securities
depository, subject in each case to proper safeguards according to the
usual practice of investment companies or any rules or regulations
applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security
which is held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security (whether or not so deposited
or transferred) as the Trustees shall deem proper, and to agree to pay,
and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise
assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Board of Trustees may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
Investment Advisers, Principal Underwriters, or independent contractors
of the Trust, individually against all claims and liabilities of every
nature arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged to have
been taken or omitted by any such Person as Trustee, officer, employee,
agent, Investment Adviser, Principal Underwriter, or independent
contractor, to the fullest extent permitted by this Declaration of Trust,
the By-Laws and by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive
and benefit plans, trusts and provisions, including the purchasing of life
insurance and annuity contracts as a means of providing such retirement
and other benefits, for any or all of the Trustees, officers, employees
and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved
and unimproved, and wheresoever situated; and to build, erect, construct,
alter and maintain buildings, structures, and other improvements on real
property;
(p) To borrow or raise moneys for any of the purposes of the Trust,
and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or
intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings of
every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and
deal in stocks, Shares, bonds, debentures and other securities,
instruments or other property of the Trust, from time to time, to such
extent as the Board of Trustees shall, consistent with the provisions
of this Declaration of Trust, determine; and to re-acquire and redeem,
from time to time, its Shares or, if any, its bonds, debentures and
other securities;
(s) To engage in and to prosecute, defend, compromise, abandon, or
adjust, by arbitration, or otherwise, any actions, suits, proceedings,
disputes, claims, and demands relating to the Trust, and out of the assets
of the Trust to pay or to satisfy any debts, claims or expenses incurred
in connection therewith, including those of litigation, and such power
shall include without limitation the power of the Trustees or any
appropriate committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding, dispute,
claim, or demand, derivative or otherwise, brought by any Person,
including a Shareholder in the Shareholder's own name or the name of
the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business
for or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other states,
territories, districts and United States dependencies and in foreign
countries, all of the foregoing powers, rights and privileges, and the
enumeration of the foregoing powers shall not be deemed to exclude any
powers, rights or privileges so granted or conferred; and
(u) In general, to carry on any other business in connection with or
incidental to its trust purposes, to do everything necessary, suitable or
proper for the accomplishment of such purposes or for the attainment of
any object or the furtherance of any power hereinbefore set forth, either
alone or in association with others, and to do every other act or thing
incidental or appurtenant to, or growing out of, or connected with, its
business or purposes, objects or powers.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series.
Neither the Trust nor the Board of Trustees shall be required to obtain
any court order to deal with any assets of the Trust or take any other
action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration
of specific purposes, objects and powers shall not be held to limit or
restrict in any manner the powers of the Trust, and that they are in
furtherance of, and in addition to, and not in limitation of, the general
powers conferred upon the Trust by the DSTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one thing
be deemed to exclude another, although it be of like nature, not
expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided into Shares,
each Share without a par value. The number of Shares in the Trust
authorized hereunder, and of each Series and Class as may be established
from time to time, is unlimited. The Board of Trustees may authorize the
division of Shares into separate Classes of Shares and into separate and
distinct Series of Shares and the division of any Series into separate
Classes of Shares in accordance with the 1940 Act. The different Series
and Classes shall be established and designated pursuant to Article III,
Section 6 hereof. If no separate Series or Classes of Series shall be
established, the Shares shall have the rights, powers and duties provided
for herein and in Article III, Section 6 hereof to the extent relevant
and not otherwise provided for herein, and all references to Series and
Classes shall be construed (as the context may require) to refer to the
Trust.
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 Class
thereof, respectively, that shall yield to the Trust or such Series or
Class not less than the net asset value thereof, in addition to any
amount of applicable sales charge to be paid to the Principal Underwriter
or the selling broker or dealer in connection with the sale of such
Shares, at which price the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any other
requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees
may, subject to the 1940 Act, prescribe (or delegate to any officer of the
Trust or any other Person the right to prescribe) such bases and time
(including any methodology or plan) for determining the net asset value
per Share of the Trust or any Series or Class thereof, or net income
attributable to the Shares of the Trust or any Series or Class thereof
or the declaration and payment of dividends and distributions on the
Shares of the Trust or any Series or Class thereof, and the method of
determining the Shareholders to whom dividends and distributions are
payable, as it may deem necessary or desirable, and such dividends and
distributions may vary between the Classes to reflect differing
allocations of the expenses of the Trust between such Classes to
such extent and for such purposes as the Trustees may deem appropriate.
Without limiting the generality of the foregoing, but subject to
applicable federal law, including the 1940 Act, any dividend or
distribution may be paid in cash and/or securities or other property,
and the composition of any such distribution shall be determined by
the Trustees (or by any officer of the Trust or any other Person to
whom such authority has been delegated by the Trustees) and may be
different among Shareholders including differences among Shareholders
of the same Series or Class.
(c) The Shareholders of the Trust or any Series or Class, if any,
shall be entitled to receive dividends and distributions, when, if and
as declared by the Board of Trustees with respect thereto, provided
that with respect to Classes, such dividends and distributions shall
comply with the 1940 Act. The right of Shareholders to receive dividends
or other distributions on Shares of any Class may be set forth in a plan
adopted by the Board of Trustees and amended from time to time pursuant
to the 1940 Act. No Share shall have any priority or preference over
any other Share of the Trust with respect to dividends or distributions
paid in the ordinary course of business or distributions upon dissolution
of the Trust made pursuant to Article VIII, Section 1 hereof; provided
however, that
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
therefore under this Article VII; provided that any such liability,
expense or obligation may be allocated and charged by the Board of
Trustees between or among the Trust and/or any one or more Series
(and Classes) in such manner as the Board of Trustees in its sole
discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted by applicable
law, the Board of Trustees shall have the authority to purchase with
Trust Property, insurance for liability and for all Expenses reasonably
incurred or paid or expected to be paid by an Agent in connection with
any Proceeding in which such Agent becomes involved by virtue of such
Agent's actions, or omissions to act, in its capacity or former
capacity with the Trust, whether or not the Trust would have the power
to indemnify such Agent against such liability.
Section 4. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the DSTA, a Shareholder or Shareholders may bring
a derivative action on behalf of the Trust only if the following
conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon the
Board of Trustees to bring the subject action unless an effort to cause
the Board of Trustees to bring such an action is not likely to succeed.
For purposes of this Section 4, a demand on the Board of Trustees shall
only be deemed not likely to succeed and therefore excused if a majority
of the Board of Trustees, or a majority of any committee established to
consider the merits of such action, is composed of Trustees who are not
"independent trustees" (as such term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of this Section
4, Shareholders eligible to bring such derivative action under the DSTA
who hold at least 10% of the outstanding Shares of the Trust, or 10% of
the outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Board of Trustees to commence
such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 4, the Board of Trustees must be afforded a reasonable amount of
time to consider such Shareholder request and to investigate the basis
of such claim. The Board of Trustees shall be entitled to retain counsel
or other advisors in considering the merits of the request and shall
require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisors in the event
that the Board of Trustees determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary
to create a committee with a majority of Trustees who are "independent
trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions (collectively, "claims")
that under applicable law must be brought as derivative claims, each
Shareholder of the Trust or any Series or Class thereof agrees that any
claim that affects all Shareholders of a Series or Class equally, that
is, proportionately based on their number of Shares in such Series or
Class, must be brought as a derivative claim subject to this Section 4
irrespective of whether such claim involves a violation of the
Shareholders' rights under this Declaration of Trust or any other alleged
violation of contractual or individual rights that might otherwise give
rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial. In accordance with
Section 3804(e) of the DSTA any suit, action or proceeding brought by or
in the right of any Shareholder or any person claiming any interest in
any Shares seeking to enforce any provision of, or based on any matter
arising out of, or in connection with, this Declaration of Trust or the
Trust, any Series or Class or any Shares, including any claim of any
nature against the Trust, any Series or Class, the Trustees or officers
of the Trust, shall be brought exclusively in the Court of Chancery of
the State of Delaware to the extent there is subject matter jurisdiction
in such court for the claims asserted or, if not, then in the Superior
Court of the State of Delaware, and all Shareholders and other such
Persons hereby irrevocably consent to the jurisdiction of such courts
(and the appropriate appellate courts therefrom) in any such suit, action
or proceeding and irrevocably waive, to the fullest extent permitted
by law, any objection they may make now or hereafter have to the laying
of the venue of any such suit, action or proceeding in such court or
that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum and further, in connection with
any such suit, action, or proceeding brought in the Superior Court in
the State of Delaware, all Shareholders and all other such Persons
irrevocably waive the right to a trial by jury to the fullest extent
permitted by law. All Shareholders and other such Persons agree that
service of summons, complaint or other process in connection with any
proceedings may be made by registered or certified mail or by overnight
courier addressed to such Person at the address shown on the books and
records of the Trust for such Person or at the address of the Person
shown on the books and records of the Trust with respect to the Shares
that such Person claims an interest in. Service of process in any such
suit, action or proceeding against the Trust or any Trustee or officer
of the Trust may be made at the address of the Trust's registered agent
in the State of Delaware. Any service so made shall be effective as if
personally made in the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series
shall have perpetual existence, except that the Trust (or a particular
Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of
not less than a majority of the Shares of the Trust cast, or (ii) at the
discretion of the Board of Trustees either (A) at any time there are no
Shares outstanding of the Trust, or (B) upon prior written notice to the
Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series cast,
or (ii) at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of such Series, or (B) upon prior
written notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any other
provision of this Declaration of Trust (including Article VIII,
Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that causes the
dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may
be), the Board of Trustees shall (in accordance with Section 3808 of
the DSTA) pay or make reasonable provision to pay all claims and
obligations of the Trust and/or each Series (or the particular Series,
as the case may be), including, without limitation, all contingent,
conditional or unmatured claims and obligations known to the Trust, and
all claims and obligations which are known to the Trust, but for which
the identity of the claimant is unknown. If there are sufficient
assets held with respect to the Trust and/or each Series of the Trust
(or the particular Series, as the case may be), such claims and
obligations shall be paid in full and any such provisions for payment
shall be made in full. If there are insufficient assets held with
respect to the Trust and/or each Series of the Trust (or the particular
Series, as the case may be), such claims and obligations shall be paid
or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets
available therefor. Any remaining assets (including, without limitation,
cash, securities or any combination thereof) held with respect to
the Trust and/or each Series of the Trust (or the particular Series,
as the case may be) shall be distributed to the Shareholders of the
Trust and/or each Series of the Trust (or the particular Series, as the
case may be) ratably according to the number of Shares of the Trust
and/or such Series thereof (or the particular Series, as the case may
be) held of record by the several Shareholders on the date for such
dissolution distribution; provided, however, that if the Shares of the
Trust or a Series are divided into Classes thereof, any remaining assets
(including, without limitation, cash, securities or any combination
thereof) held with respect to the Trust or such Series, as applicable,
shall be distributed to each Class of the Trust or such Series according
to the net asset value computed for such Class and within such particular
Class, shall be distributed ratably to the Shareholders of such Class
according to the number of Shares of such Class held of record by the
several Shareholders on the date for such dissolution distribution.
Upon the winding up of the Trust in accordance with Section 3808 of
the DSTA and its termination, any one (1) Trustee shall execute, and
cause to be filed, a certificate of cancellation, with the office of
the Secretary of State of the State of Delaware in accordance with the
provisions of Section 3810 of the DSTA. In connection with the
dissolution and liquidation of the Trust or the termination of any
Series or any Class, the Trustees may provide for the establishment
and utilization of a liquidating trust or similar vehicle.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger
or consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into one
or more statutory trusts or "other business entities" (as defined in
Section 3801 of the DSTA) formed or organized or existing under the
laws of the State of Delaware or any other state of the United States
or any foreign country or other foreign jurisdiction. Any such merger
or consolidation shall not require the vote of the Shareholders unless
such vote is required by the 1940 Act; provided however, that the Board
of Trustees shall provide at least thirty (30) days' prior written notice
to the Shareholders of such merger or consolidation. By reference to
Section 3815(f) of the DSTA, any agreement of merger or consolidation
approved in accordance with this Section 2(a) may, without a Shareholder
vote unless required by the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, effect any amendment to
this Declaration of Trust or the By-Laws or effect the adoption of a new
governing instrument if the Trust is the surviving or resulting statutory
trust in the merger or consolidation, which amendment or new governing
instrument shall be effective at the effective time or date of the merger
or consolidation. In all respects not governed by the DSTA, the 1940
Act, other applicable law or the requirements of any securities exchange
on which Shares are listed for trading, the Board of Trustees shall have
the power to prescribe additional procedures necessary or appropriate
to accomplish a merger or consolidation, including the power to create
one or more separate statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be transferred
and to provide for the conversion of Shares into beneficial interests in
such separate statutory trust or trusts. In connection with any merger
or consolidation, if the Trust is the surviving or resulting statutory
trust, any one (1) Trustee shall execute, and cause to be filed, a
certificate of merger or consolidation in accordance with Section 3815
of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of
the Trustees, may cause (i) the Trust to convert to an "other business
entity" (as defined in Section 3801 of the DSTA) formed or organized
under the laws of the State of Delaware as permitted pursuant to Section
3821 of the DSTA; (ii) the Shares of the Trust or any Series or Class
to be converted into beneficial interests in another statutory trust (or
series or class thereof) created pursuant to this Section 2 of this
Article VIII, or (iii) the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by law. Any such
statutory conversion, Share conversion or Share exchange shall not require
the vote of the Shareholders unless such vote is required by the 1940
Act; provided however, that the Board of Trustees shall provide at least
thirty (30) days' prior written notice to the Shareholders of the Trust
of any conversion of Shares of the Trust pursuant to Subsections (b)(i)
or (b)(ii) of this Section 2 or exchange of Shares of the Trust pursuant
to Subsection (b)(iii) of this Section 2, and at least thirty (30) days'
prior written notice to the Shareholders of a particular Series or Class
of any conversion of Shares of such Series or Class pursuant to
Subsection (b)(ii) of this Section 2 or exchange of Shares of such Series
or Class pursuant to Subsection (b)(iii) of this Section 2. In all
respects not governed by the DSTA, the 1940 Act, other applicable law or
the requirements of any securities exchange on which Shares are listed
for trading, the Board of Trustees shall have the power to prescribe
additional procedures necessary or appropriate to accomplish a statutory
conversion, Share conversion or Share exchange, including the power to
create one or more separate statutory trusts to which all or any part of
the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of the Trust or
any Series or Class thereof into beneficial interests in such separate
statutory trust or trusts (or series or class thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority
of the Trustees, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets")
or all or substantially all of the assets associated with any one or more
Series ("sale of such Series' assets") or any one or more Classes ("sale
of such Class's assets"), to another trust, statutory trust, partnership
, limited partnership, limited liability company, corporation or other
association organized under the laws of any state, or to one or more
separate series or class thereof, or to the Trust to be held as assets
associated with one or more other Series or Classes of the Trust, in
exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series or Class of the
Trust, Shares of such other Series or Class) with such sale, conveyance
and transfer either (a) being made subject to, or with the assumption
by the transferee of, the liabilities associated with the Trust or the
liabilities associated with the Series or Class the assets of which are
so transferred, as applicable, or (b) not being made subject to, or not
with the assumption of, such liabilities. Any such sale, conveyance and
transfer shall not require the vote of the Shareholders unless such vote
is required by the 1940 Act; provided however, that the Board of Trustees
shall provide at least thirty (30) days' prior written notice to the
Shareholders of the Trust of any such sale of Trust assets, at least
thirty (30) days' prior written notice to the Shareholders of a particular
Series of any sale of such Series' assets, and at least thirty (30) days'
prior written notice to the Shareholders of a particular Class of any
sale of such Class's assets. Following such sale of Trust assets, the
Board of Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of the Trust (giving due effect to the
assets and liabilities associated with and any other differences among
the various Series the assets associated with which have been so sold,
conveyed and transferred, and due effect to the differences among the
various Classes within each such Series). Following a sale of such
Series' assets, the Board of Trustees shall distribute such cash, shares
or other securities ratably among the Shareholders of such Series
(giving due effect to the differences among the various Classes within
each such Series). Following a sale of such Class's assets, the Board
of Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of such Class. If all of the assets of
the Trust have been so sold, conveyed and transferred, the Trust shall
be dissolved; and if all of the assets of a Series or Class have been
so sold, conveyed and transferred, such Series and the Classes thereof,
or such Class, shall be dissolved. In all respects not governed by the
DSTA, the 1940 Act or other applicable law, the Board of Trustees shall
have the power to prescribe additional procedures necessary or
appropriate to accomplish such sale, conveyance and transfer, including
the power to create one or more separate statutory trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares into
beneficial interests in such separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act,
the Board of Trustees, by vote of a majority of the Trustees, and without
a Shareholder vote, may cause the Trust or any one or more Series to
convert to a master feeder structure (a structure in which a feeder fund
invests all of its assets in a master fund, rather than making
investments in securities directly) and thereby cause existing Series
of the Trust to either become feeders in a master fund, or to become
master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights. No
Shareholder shall be entitled, as a matter of right, to relief as a
dissenting Shareholder in respect of any proposal or action involving
the Trust or any Series or any Class thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed by
not less than a majority of the Board of Trustees and, to the extent
required by the 1940 Act or the requirements of any securities exchange
on which Shares are listed for trading, by approval of such amendment by
the Shareholders in accordance with Article III, Section 6 hereof and
Article V hereof. Any such restatement and/or amendment hereto shall be
effective immediately upon execution and approval or upon such future
date and time as may be stated therein. The Certificate of Trust shall
be restated and/or amended at any time by the Board of Trustees,
without Shareholder approval, to correct any inaccuracy contained
therein. Any such restatement and/or amendment of the Certificate
of Trust shall be executed by at least one (1) Trustee and shall be
effective immediately upon its filing with the office of the Secretary
of State of the State of Delaware or upon such future date as may be
stated therein.
ARTICLE X
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this Declaration of
Trust and in any restatement hereof and/or amendment hereto, references to
this instrument, and all expressions of similar effect to "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument
as so restated and/or amended. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof
or control or affect the meaning, construction or effect of this
instrument. Whenever the singular number is used herein, the same
shall include the plural; and the neuter, masculine and feminine genders
shall include each other, as applicable. Any references herein to
specific sections of the DSTA, the Code or the 1940 Act shall refer
to such sections as amended from time to time or any successor sections
thereof. This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created
under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the applicable
provisions of the 1940 Act and the Code; provided, that, all matters
relating to or in connection with the conduct of Shareholders' and
Trustees' meetings (excluding, however, the Shareholders' right to vote),
including, without limitation, matters relating to or in connection
with record dates, notices to Shareholders or Trustees, nominations
and elections of Trustees, voting by, and the validity of, Shareholder
proxies, quorum requirements, meeting adjournments, meeting
postponements and inspectors, which are not specifically addressed in
this Declaration of Trust, in the By-Laws or in the DSTA (other than
DSTA Section 3809), or as to which an ambiguity exists, shall be governed
by the Delaware General Corporation Law, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation, the
Shareholders were shareholders of such Delaware corporation and the
Trustees were directors of such Delaware corporation; provided,
further, however, that there shall not be applicable to the Trust,
the Trustees, the Shareholders or any other Person or to this Declaration
of Trust or the By-Laws (a) the provisions of Sections 3533, 3540
and 3583(a) of Title 12 of the Delaware Code or (b) any provisions
of the laws (statutory or common) of the State of Delaware (other
than the DSTA) pertaining to trusts which relate to or regulate
(i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees
of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition
of real or personal property, (iv) fees or other sums payable to
trustees, officers, agents or employees of a trust, (v) the allocation
of receipts and expenditures to income or principal, (vi) restrictions
or limitations on the permissible nature, amount or concentration of
trust investments or requirements relating to the titling, storage or
other manner of holding trust assets, or (vii) the establishment of
fiduciary or other standards or responsibilities or limitations on the
indemnification, acts or powers of trustees or other Persons, which are
inconsistent with the limitations of liabilities or authorities and
powers of the Trustees or officers of the Trust set forth or referenced
in this Declaration of Trust or the By-Laws. The Trust shall be a
Delaware statutory trust pursuant to the DSTA, and without limiting
the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice of counsel,
that any of such provisions is in conflict with the 1940 Act, the Code,
the DSTA, or with other applicable laws and regulations, the conflicting
provision shall be deemed not to have constituted a part of this
Declaration of Trust from the time when such provisions became
inconsistent with such laws or regulations; provided, however,
that such determination shall not affect any of the remaining provisions
of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the Trustees
to create hereby a statutory trust pursuant to the DSTA, and thereby to
create the relationship of trustee and beneficial owners within the
meaning of the DSTA between, respectively, the Trustees and each
Shareholder. It is not the intention of the Trustees to create a general
or limited partnership, limited liability company, joint stock
association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the DSTA. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint
stock association.
Section 5. Use of the Names "Franklin," "▇▇▇▇▇▇▇▇▇," "Fiduciary
Trust," and/or "Institutional Fiduciary Trust". The Board of Trustees
expressly agrees and acknowledges that the names "▇▇▇▇▇▇▇▇," "▇▇▇▇▇▇▇▇▇,"
"Fiduciary Trust," and "Institutional Fiduciary Trust" are the sole
property of Franklin Resources, Inc. ("FRI"). FRI has granted to the
Trust a non-exclusive license to use such names as part of the name of
the Trust now and in the future. The Board of Trustees further expressly
agrees and acknowledges that the non-exclusive license granted herein may
be terminated by FRI if the Trust ceases to use FRI or one of its
Affiliates as Investment Adviser or to use other Affiliates or successors
of FRI for such purposes. In such event, the non-exclusive license may
be revoked by FRI and the Trust shall cease using the names "Franklin,"
"▇▇▇▇▇▇▇▇▇," "Fiduciary Trust," "Institutional Fiduciary Trust" or any
name misleadingly implying a continuing relationship between the Trust
and FRI or any of its Affiliates, as part of its name unless otherwise
consented to by FRI or any successor to its interests in such names.
The Board of Trustees further understands and agrees that so long as
FRI and/or any future advisory Affiliate of FRI shall continue to
serve as the Trust's Investment Adviser, other registered open- or
closed-end investment companies ("funds") as may be sponsored or
advised by FRI or its Affiliates shall have the right permanently to
adopt and to use the names "Franklin", "▇▇▇▇▇▇▇▇▇," "Fiduciary Trust"
and/or "Institutional Fiduciary Trust" in their names and in the names
of any series or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of Franklin Managed Trust named below
do hereby make and enter into this Declaration of Trust as of the date
first written above.
/s/ Harris J. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee