NAME OF REGISTRANT:
XXXXXXXX XXXX AND PRECIOUS METALS FUND
File No. 811-01700
EXHIBIT ITEM: Copies of any material amendments to the registrant's
charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST of
FRANKLIN GOLD AND PRECIOUS METALS FUND
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted
November 16, 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 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
Article II PURPOSE OF TRUST 4
Article III SHARES 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal Liability 10
Section 5. Power of Board of Trustees to Make Tax Status Election 10
Section 6. Establishment and Designation of Series and Classes 10
Section 7. Indemnification of Shareholders 14
Article IV THE BOARD OF TRUSTEES 14
Section 1. Number, Election, Term, Removal and Resignation 14
Section 2. Trustee Action by Written Consent Without a Meeting 15
Section 3. Powers; Other Business Interests; Quorum and Required
Vote 16
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 19
Article V SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote 20
Section 3. Shareholder Action by Written Consent Without a Meeting 21
Section 4. Record Dates 21
Section 5. Additional Provisions 22
Article VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 23
Section 1. Determination of Net Asset Value, Net Income
and Distributions 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
Article VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 27
Section 1. Limitation of Liability 27
Section 2. Indemnification 28
Section 3. Insurance 29
Section 4. Derivative Actions 30
Section 5. Jurisdiction and Waiver of Jury Trial 30
Article VIII CERTAIN TRANSACTIONS 31
Section 1. Dissolution of Trust or Series 31
Section 2. Merger or Consolidation; Conversion; Reorganization 32
Section 3. Master Feeder Structure 34
Section 4. Absence of Appraisal or Dissenters' Rights 34
Article IX AMENDMENTS 34
Section 1. Amendments Generally 34
Article X MISCELLANEOUS 35
Section 1. References; Headings; Counterparts 35
Section 2. Applicable Law 35
Section 3. Provisions in Conflict with Law or Regulations 36
Section 4. Statutory Trust Only 36
Section 5. Use of the Names "Franklin," "Xxxxxxxxx," "Fiduciary
Trust, and/or "Institutional Fiduciary Trust" 36
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN GOLD AND PRECIOUS METALS FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of
this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Franklin Gold and Precious Metals Fund (the "Trust") was
formed on November 16, 1999 under the name "Franklin Gold and
Precious Metals Fund" 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 November 16, 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; andWHEREAS 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 Gold and
Precious Metals Fund" and the Board of Trustees shall conduct the
business of the Trust under that name, or any other name as it may
from time to time designate. 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 Gold and Precious Metals Fund, 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 a
pplicable, held with respect to such Series, shall be distributed to
each Series thereof according to the net asset value computed for
such Series and within such particular Series, shall be distributed
ratably to the Shareholders of such Series according to the number of
Shares of such Series held of record by such Shareholders on the
record date for any dividend or distribution; and
if the Shares of the Trust or of a Series are divided into Classes
thereof, all dividends and distributions from the Trust Property and
, if applicable, held with respect to the Trust or such Series,
shall be distributed to each Class thereof according to the net
asset value computed for such Class and within such particular Class
, shall be distributed ratably to the Shareholders of such Class
according to the number of Shares of such Class held of record by
such Shareholders on the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set aside out of any
funds of the Trust, or the applicable Series thereof, available for
dividends such sum or sums as the Board of Trustees may from time to
time, in its absolute discretion, think proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Trust, or any Series thereof, or
for such other lawful purpose as the Board of Trustees shall deem to
be in the best interests of the Trust, or the applicable Series, as
the case may be, and the Board of Trustees may abolish any such
reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless
otherwise provided in the prospectus of the Trust relating to the
Shares, as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption upon the presentation of a proper
instrument of transfer together with a request directed to the Trust
or a Person designated by the Trust that the Trust purchase such
Shares and/or in accordance with such other procedures for
redemption as the Board of Trustees may from time to time authorize.
If certificates have been issued to a Shareholder, any request for
redemption by such Shareholder must be accompanied by surrender of
any outstanding certificate or certificates for such Shares in form
for transfer, together with such proof of the authenticity of
signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value thereof
as determined by the Trustees (or by such Person to whom such
determination has been delegated) (excluding any applicable
redemption fee or sales load), in accordance with this Declaration
of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize in
its complete discretion, be made in kind or partially in cash and
partially in kind. In case of any payment in kind, the Board of
Trustees, or its authorized officers, shall have absolute discretion
as to what security or securities of the Trust or the applicable
Series shall be distributed in kind and the amount of the same; and
the securities shall be valued for purposes of distribution at the
value at which they were appraised in computing the then current net
asset value of the Shares, provided that any Shareholder who cannot
legally acquire securities so distributed in kind shall receive
cash to the extent permitted by the 1940 Act. Shareholders shall
bear the expenses of in-kind transactions, including, but not
limited to, transfer agency fees, custodian fees and costs of
disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be made
by the Trust to the Shareholder within seven days after the date on
which the redemption request is received in proper form and/or such
other procedures authorized by the Board of Trustees are complied
with; provided, however, that if payment shall be made other than
exclusively in cash, any securities to be delivered as part of such
payment shall be delivered as promptly as any necessary transfers of
such securities on the books of the several corporations or other
Person whose securities are to be delivered practicably can be made,
which may not necessarily occur within such seven-day period. In
no case shall the Trust be liable for any delay of any corporation
or other Person in transferring securities selected for delivery as
all or part of any payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are
subject to the provision that such obligations may be suspended or
postponed by the Board of Trustees (1) during any time the New York
Stock Exchange (the "Exchange") is closed for other than weekends or
holidays; (2) if permitted by the rules of the Commission, during
periods when trading on the Exchange is restricted; or (3) during
any National Financial Emergency. The Board of Trustees may, in its
discretion, declare that the suspension relating to a National
Financial Emergency shall terminate, as the case may be, on the
first business day on which the Exchange shall have reopened or the
period specified above shall have expired (as to which, in the
absence of an official ruling by the Commission, the determination
of the Board of Trustees shall be conclusive). In the case of a
suspension of the right of redemption as provided herein, a
Shareholder may either withdraw the request for redemption or
receive payment based on the net asset value per Share next
determined after the termination of such suspension, less any fees
imposed on such redemption.
(e) The right of any Shareholder of the Trust or any Series or Class
thereof to receive dividends or other distributions on Shares
redeemed and all other rights of such Shareholder with respect to
the Shares so redeemed, except the right of such Shareholder to
receive payment for such Shares, shall cease at the time the
purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. At the option of
the Board of Trustees the Trust may, from time to time, without the
vote of the Shareholders, but subject to the 1940 Act, redeem
Shares or authorize the closing of any Shareholder account, subject
to such conditions and for such reasons as may be established from
time to time by the Board of Trustees, including, without
limitation, (i) the determination of the Trustees that direct or
indirect ownership of Shares of the Trust or any Series has or
may become concentrated in such Shareholder to an extent that would
disqualify any Series as a regulated investment company under the
Code (or any successor statute thereto), (ii) the failure of a
Shareholder to supply a tax identification number if required to do
so, or to have the minimum investment required (which may vary by
Series or Class), (iii) if the Share activity of the account or
ownership of Shares by a particular Shareholder is deemed by the
Trustees either to affect adversely the management of the Trust or
any Series or Class or not to be in the best interests of the
remaining Shareholders of the Trust or any Series or Class or (iv)
the failure of a Shareholder to pay when due for the purchase of
Shares issued to him. Any such redemption shall be effected at the
redemption price and in the manner provided in this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable in
accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who is
or was a Trustee, officer, employee or other agent of the Trust or
is or was serving at the request of the Trust as a trustee, director
, officer, employee or other agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise;
"Proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative
; and "Expenses" include without limitation attorneys' fees and any
expenses of establishing a right to indemnification under this
Article.
(b) An Agent shall be liable to the Trust and to any Shareholder for
any act or omission that constitutes a bad faith violation of the
implied contractual covenant of good faith and fair dealing, for
such Agent's own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest
extent that limitations on the liability of Agents are permitted by
the DSTA, the Agents shall not be responsible or liable in any event
for any act or omission of any other Agent of the Trust or any
Investment Adviser or Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall
be personally liable to any Person, other than the Trust or a
Shareholder to the extent provided in subsections (b) and (c) of
this Section 1, for any act, omission or obligation of the Trust or
any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall, in the
performance of his or her duties, be fully and completely justified
and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel, or upon reports
made to the Trust by any of its officers or employees or by the
Investment Adviser, the Principal Underwriter, any other Agent,
selected dealers, accountants, appraisers or other experts or
consultants, regardless of whether such counsel or expert may also
be a Trustee, as to matters the Trustee, officer or employee of the
Trust reasonably believes are within such Person's professional or
expert competence. The officers and Trustees may obtain the advice
of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, the By-Laws, applicable law
and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in
accordance with such advice, records and/or reports and no inference
concerning liability shall arise from a failure to follow such
advice, records and/or reports. The officers and Trustees shall not
be required to give any bond hereunder, nor any surety if a bond is
required by applicable law.
(f) The failure to make timely collection of dividends or interest,
or to take timely action with respect to entitlements, on the
Trust's securities issued in emerging countries, shall not be deemed
to be negligence or other fault on the part of any Agent, and no
Agent shall have any liability for such failure or for any loss or
damage resulting from the imposition by any government of exchange
control restrictions which might affect the liquidity of the Trust's
assets or from any war or political act of any foreign government
to which such assets might be exposed, except, in the case of a
Trustee or officer, for liability resulting from such Trustee's or
officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies to
events occurring at the time a Person serves as an Agent whether or
not such Person is an Agent at the time of any Proceeding in which
liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any
right or protection of an Agent that exists at the time of such \
amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of
Trust Property, to the fullest extent permitted under applicable law
, any Person who was or is a party, potential party or non-party
witness or is threatened to be made a party, potential party or
non-party witness to any Proceeding by reason of the fact that such
Person is or was an Agent of the Trust, against Expenses, judgments,
fines, settlements and other amounts actually and reasonably
incurred in connection with such Proceeding if such Person acted in
good faith or in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such Person was unlawful.
The termination of any Proceeding by judgment, order, settlement,
conviction or plea of nolo contendere or its equivalent shall not of
itself create a presumption that the Person did not act in good
faith or that the Person had reasonable cause to believe that the
Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to
the contrary contained herein, there shall be no right to
indemnification for any liability arising by reason of the Agent's
Disqualifying Conduct. In respect of any claim, issue or matter as
to which that Person shall have been adjudged to be liable in the
performance of that Person's duty to the Trust or the Shareholders,
indemnification shall be made only to the extent that the court in
which that action was brought shall determine, upon application or
otherwise, that in view of all the circumstances of the case, that
Person was not liable by reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article shall
be made by the Trust if authorized in the specific case on a
determination that indemnification of the Agent is proper in the
circumstances by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the Agent was
not liable by reason of Disqualifying Conduct (including, but not
limited to, dismissal of either a court action or an administrative
proceeding against the Agent for insufficiency of evidence of any
Disqualifying Conduct) or, (ii) in the absence of such a decision,
a reasonable determination, based upon a review of the facts, that
the Agent was not liable by reason of Disqualifying Conduct, by (1)
the vote of a majority of a quorum of the Trustees who are not (x)
"interested persons" of the Trust as defined in Section 2(a)(19) of
the 1940 Act, (y) parties to the proceeding, or (z) parties who have
any economic or other interest in connection with such specific
case (the "disinterested, non-party Trustees"); or (2) by
independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the
final disposition of the Proceeding on receipt of an undertaking by
or on behalf of the Agent to repay the amount of the advance if it
shall be determined ultimately that the Agent is not entitled to be
indemnified as authorized in this Article; provided, that at least
one of the following conditions for the advancement of expenses is
met: (i) the Agent shall provide a security for his undertaking,
(ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the
disinterested, non-party Trustees of the Trust, or an independent
legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Agent ultimately
will be found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in this Article
shall affect any right to indemnification to which Persons other
than Trustees and officers of the Trust or any subsidiary thereof
may be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not
apply to any Proceeding against any trustee, investment manager or
other fiduciary of an employee benefit plan in that Person's
capacity as such, even though that Person may also be an Agent of
the Trust as defined in Section 1 of this Article. Nothing
contained in this Article shall limit any right to indemnification
to which such a trustee, investment manager, or other fiduciary may
be entitled by contract or otherwise which shall be enforceable to
the extent permitted by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding any other
provision in this Declaration of Trust to the contrary, any amount
of indemnification and any advancement of expenses that any Agent is
entitled to be paid under Section 2 shall be deemed to be joint and
several obligations of the Trust and each Series, and the assets of
the Trust and each Series shall be subject to the claims of any
Agent therefor under this Article VII; provided that any such
liability, expense or obligation may be allocated and charged by the
Board of Trustees between or among the Trust and/or any one or more
Series (and Classes) in such manner as the Board of Trustees in its
sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted by applicable
law, the Board of Trustees shall have the authority to purchase
with Trust Property, insurance for liability and for all Expenses
reasonably incurred or paid or expected to be paid by an Agent in
connection with any Proceeding in which such Agent becomes involved
by virtue of such Agent's actions, or omissions to act, in its
capacity or former capacity with the Trust, whether or not the
Trust would have the power to indemnify such Agent against such
liability.
Section 4. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only if the
following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon
the Board of Trustees to bring the subject action unless an effort
to cause the Board of Trustees to bring such an action is not likely
to succeed. For purposes of this Section 4, a demand on the Board
of Trustees shall only be deemed not likely to succeed and therefore
excused if a majority of the Board of Trustees, or a majority of
any committee established to consider the merits of such action, is
composed of Trustees who are not "independent trustees" (as such
term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of this
Section 4, Shareholders eligible to bring such derivative action
under the DSTA who hold at least 10% of the outstanding Shares of
the Trust, or 10% of the outstanding Shares of the Series or Class
to which such action relates, shall join in the request for the
Board of Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 4, the Board of Trustees must be afforded a reasonable
amount of time to consider such Shareholder request and to
investigate the basis of such claim. The Board of Trustees shall be
entitled to retain counsel or other advisors in considering the
merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the
expense of any such advisors in the event that the Board of
Trustees determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who are
"independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions
(collectively, "claims") that under applicable law must be brought as
derivative claims, each Shareholder of the Trust or any Series or
Class thereof agrees that any claim that affects all Shareholders of
a Series or Class equally, that is, proportionately based on their
number of Shares in such Series or Class, must be brought as a
derivative claim subject to this Section 4 irrespective of whether
such claim involves a violation of the Shareholders' rights under
this Declaration of Trust or any other alleged violation of
contractual or individual rights that might otherwise give rise to a
direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial. In accordance with
Section 3804(e) of the DSTA any suit, action or proceeding brought
by or in the right of any Shareholder or any person claiming any
interest in any Shares seeking to enforce any provision of, or
based on any matter arising out of, or in connection with, this
Declaration of Trust or the Trust, any Series or Class or any
Shares, including any claim of any nature against the Trust, any
Series or Class, the Trustees or officers of the Trust, shall be
brought exclusively in the Court of Chancery of the State of
Delaware to the extent there is subject matter jurisdiction in such
court for the claims asserted or, if not, then in the Superior
Court of the State of Delaware, and all Shareholders and other such
Persons hereby irrevocably consent to the jurisdiction of such
courts (and the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waive, to the fullest
extent permitted by law, any objection they may make now or
hereafter have to the laying of the venue of any such suit, action
or proceeding in such court or that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum and further, in connection with any such suit,
action, or proceeding brought in the Superior Court in the State
of Delaware, all Shareholders and all other such Persons
irrevocably waive the right to a trial by jury to the fullest
extent permitted by law. All Shareholders and other such Persons
agree that service of summons, complaint or other process in
connection with any proceedings may be made by registered or
certified mail or by overnight courier addressed to such Person at
the address shown on the books and records of the Trust for such
Person or at the address of the Person shown on the books and
records of the Trust with respect to the Shares that such Person
claims an interest in. Service of process in any such suit, action
or proceeding against the Trust or any Trustee or officer of the
Trust may be made at the address of the Trust's registered agent in
the State of Delaware. Any service so made shall be effective as
if personally made in the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series
shall have perpetual existence, except that the Trust (or a
particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of
not less than a majority of the Shares of the Trust cast, or
(ii) at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of the Trust, or (B) upon prior
written notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series
cast, or (ii) at the discretion of the Board of Trustees either (A)
at any time there are no Shares outstanding of such Series, or (B)
upon prior written notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any
other provision of this Declaration of Trust (including
Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that 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," "Xxxxxxxxx," "Fiduciary
Trust," and/or "Institutional Fiduciary Trust". The Board of
Trustees expressly agrees and acknowledges that the names "Xxxxxxxx
," "Xxxxxxxxx," "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
," "Xxxxxxxxx," "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", "Xxxxxxxxx," "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 Gold and Precious Metals
Fund named below do hereby make and enter into this Declaration of
Trust as of the date first written above.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
/s/ X. Xxxxxxx Xxxxxx
X. Xxxxxxx Xxxxxx, Trustee /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Trustee
