NAME OF REGISTRANT:
Xxxxxxxx Xxxxxxxxx International Trust
File No. 811-06336
EXHIBIT ITEM: Copies of any material amendments to the
registrant's charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
XXXXXXXX XXXXXXXXX INTERNATIONAL TRUST
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was
adopted March 19, 1991;
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
XXXXXXXX XXXXXXXXX INTERNATIONAL TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made
as of this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Xxxxxxxx Xxxxxxxxx International Trust (the "Trust")
was formed on March 22, 1991 under the name
"Franklin International Trust" by its Trustees
by the filing of the Certificate of Trust with the Office of
the Secretary of State of the State of Delaware pursuant to an
Agreement and Declaration of Trust dated as of March 19, 1991
(the "Original Declaration of Trust"), and the name of the
Trust was changed to "Xxxxxxxx Xxxxxxxxx International Trust"
pursuant to the filing of a Certificate of Amendment to the
Certificate of Trust with the Office of the Secretary of
State of the State of Delaware on February 1, 1996; and
WHEREAS this Trust has been formed to carry on the business
of an open-end management investment company as defined in
the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into
two or more Classes, to issue its Shares in separate Series,
to divide Shares of any Series into two or more Classes and
to issue Classes of the Trust or the Series, if any, all in
accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming
into their hands as trustees of a Delaware statutory trust
in accordance with the provisions of the Delaware Statutory
Trust Act, as amended from time to time, and the provisions
hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust
may from time to time acquire in any manner shall be managed
and disposed of upon the following terms and conditions as
hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall be
binding in accordance with their terms on every Trustee,
by virtue of having become a Trustee of the Trust, and on
every Shareholder, by virtue of having become a Shareholder
of the Trust, pursuant to the terms of this Declaration of
Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Xxxxxxxx
Xxxxxxxxx International Trust" and the Board of Trustees shall
conduct the business of the Trust under that name, or any
other name as it may from time to time designate. The Trustees
may, without Shareholder approval, change the name of the Trust
or any Series or Class. Any name change of any Series or Class
shall become effective upon approval by the Trustees of such
change or any document (including any registration statement)
reflecting such change, or at such later time as may be approved
by the Trustees. Any name change of the Trust shall become
effective upon the filing of a certificate of amendment under
the DSTA reflecting such change, or at such later time specified
in such certificate of amendment. Any such action shall have the
status of an amendment to this Declaration of Trust. In the event
of any name change, the Trustees shall cause notice to be given
to the affected Shareholders within a reasonable time after the
implementation of such change, which notice will be deemed given
if the changed name is reflected in any registration statement.
The Trust shall constitute a Delaware statutory trust in
accordance with the DSTA.
Section 2. Offices of the Trust. The Board may at any
time establish offices of the Trust at any place or places
where the Trust intends to do business.
Section 3. Registered Agent and Registered Office.
The name of the registered agent of the Trust and the address
of the registered office of the Trust are as set forth in the
Trust's Certificate of Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations thereunder, all as adopted or
amended from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person"
as such term is defined in the 1940 Act when used with reference to
a specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from
time to time pursuant to Article IV hereof, having the powers
and duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended,
restated or supplemented from time to time in accordance with
Article VIII therein. Such By-Laws may contain any provision
not inconsistent with applicable law or this Declaration of
Trust, relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of
trust of the Trust filed with the office of the Secretary of
State of the State of Delaware as required under the DSTA to
form the Trust, as such certificate shall be amended, restated
or supplemented from time to time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust
or of a Series of the Trust established and designated under
and in accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and
the rules and regulations thereunder, all as adopted or
amended from time to time;
(h) "Commission" shall have the meaning given that term
in the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 Del. C. 3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended,
restated or supplemented from time to time;
(k) "General Liabilities" shall have the meaning given
it in Article III, Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that
term in the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person,
as defined below, furnishing services to the Trust pursuant
to any investment advisory or investment management contract
described in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole
or any part of any period during (i) which an emergency
exists as a result of which disposal by the Trust of securities
or other assets owned by the Trust is not reasonably practicable;
(ii) which it is not reasonably practicable for the Trust fairly
to determine the net asset value of its assets; or (iii) such
other period as the Commission may by order permit for the protection
of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other
individual or entity in its own or any representative capacity
, in each case, whether domestic or foreign, and a statutory
trust or a foreign statutory or business trust;
(p) "Principal Underwriter" shall have the meaning given
that term in the 1940 Act;
(q) "Series" shall mean each Series of Shares established
and designated under and in accordance with the provisions
of Article III hereof;
(r) "Shares" shall mean the transferable shares of
beneficial interest into which the beneficial interest
in the Trust shall be divided from time to time, and
shall include fractional and whole Shares;
(s) "Shareholder" shall mean a record owner of Shares
pursuant to the By-Laws;
(t) "Trust" shall mean Xxxxxxxx Xxxxxxxxx International
Trust, the Delaware statutory trust formed under the Original
Declaration of Trust, as amended, and by filing of the
Certificate of Trust with the office of the Secretary of
State of the State of Delaware, and governed by this
Declaration of Trust;
(u) "Trust Property" shall mean any and all property,
real or personal, tangible or intangible, which is owned
or held by or for the account of the Trust, or one or more
of any Series thereof, including, without limitation,
the rights referenced in Article X, Section 5 hereof;
and
(v) "Trustee" or "Trustees" shall mean each Person
who signs this Declaration of Trust as a trustee and
all other Persons who may, from time to time, be duly
elected or appointed, qualified and serving on the
Board of Trustees in accordance with the provisions
hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with
the terms hereof and the By-Laws. Reference herein
to a Trustee or the Trustees shall refer to such Person
or Persons in such Person's or Persons' capacity as a
trustee or trustees hereunder and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry
on the business of a registered management investment
company registered under the 1940 Act, directly, or if
one or more Series is established hereunder, through one
or more Series, investing primarily in securities, and
to exercise all of the powers, rights and privileges
granted to, or conferred upon, a statutory trust formed
under the DSTA, including, without limitation, the
following powers:
(a) To hold, invest and reinvest its funds, and
in connection therewith, to make any changes in the
investment of the assets of the Trust, to hold part
or all of its funds in cash, to hold cash uninvested,
to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign,
mortgage, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts
for the future acquisition or delivery of fixed income
or other securities, and securities or property of every
nature and kind, including, without limitation, all types
of bonds, debentures, stocks, shares, units of beneficial
interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, money
market instruments, certificates of deposit or indebtedness,
bills, notes, mortgages, commercial paper, repurchase or reverse
repurchase agreements, bankers' acceptances, finance paper, and
any options, certificates, receipts, warrants, futures contracts
or other instruments representing rights to receive, purchase
or subscribe for the same, or evidencing or representing any other
rights or interests therein or in any property or assets, and
other securities of any kind, as the foregoing are issued,
created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions
of the United States and the District of Columbia and any
political subdivision, agency, or instrumentality thereof,
any foreign government or any political subdivision of the
U.S. Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or
by any corporation or organization organized under the laws
of the United States or of any state, territory, or possession
thereof, or by any corporation or organization organized under
any foreign law, or in "when issued" contracts for any such
securities;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use
and enjoyment of any of such securities and other instruments
or property of every kind and description, including, but
without limitation, the right, power and privilege to own,
vote, hold, purchase, sell, negotiate, assign, exchange,
lend, transfer, mortgage, hypothecate, lease, pledge or
write options with respect to or otherwise deal with,
dispose of, use, exercise or enjoy any rights, title,
interest, powers or privileges under or with reference
to any of such securities and other instruments or property,
the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons, to exercise any
of said rights, powers, and privileges in respect of any of
said instruments, and to do any and all acts and things for
the preservation, protection, improvement and enhancement in
value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in
any property rights relating to any or all of the assets of
the Trust or any Series, subject to any requirements of the
1940 Act;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver proxies or powers of
attorney to such Person or Persons as the Trustees shall
deem proper, granting to such Person or Persons such power
and discretion with relation to securities or property as
the Trustees shall deem proper;
(e) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of
securities and/or other property;
(f) To hold any security or property in a form not
indicating that it is trust property, whether in bearer,
unregistered or other negotiable form, or in its own name
or in the name of a custodian or subcustodian or a nominee
or nominees or otherwise or to authorize the custodian or
a subcustodian or a nominee or nominees to deposit the same
in a securities depository, subject in each case to proper
safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation
or issuer of any security which is held in the Trust; to
consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls
or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate
to them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in
controversy, including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Board of Trustees may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust
or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Advisers,
Principal Underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature
arising by reason of holding Shares, holding, being or having
held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such Person as
Trustee, officer, employee, agent, Investment Adviser, Principal
Underwriter, or independent contractor, to the fullest extent
permitted by this Declaration of Trust, the By-Laws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including
the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for
any or all of the Trustees, officers, employees and agents
of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy,
property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop,
improve, manage, subdivide, and generally to deal and trade
in real property, improved and unimproved, and wheresoever
situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of
the Trust, and to mortgage or pledge the whole or any part of
the property and franchises of the Trust, real, personal,
and mixed, tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire,
hold, trade and deal in stocks, Shares, bonds, debentures
and other securities, instruments or other property of the
Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this
Declaration of Trust, determine; and to re-acquire and
redeem, from time to time, its Shares or, if any, its bonds,
debentures and other securities;
(s) To engage in and to prosecute, defend, compromise,
abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating
to the Trust, and out of the assets of the Trust to pay or to
satisfy any debts, claims or expenses incurred in connection
therewith, including those of litigation, and such power
shall include without limitation the power of the Trustees or
any appropriate committee thereof, in the exercise of their
or its good faith business judgment, to dismiss any action,
suit, proceeding, dispute, claim, or demand, derivative or
otherwise, brought by any Person, including a Shareholder in
the Shareholder's own name or the name of the Trust, whether
or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason
of business for or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other
states, territories, districts and United States dependencies
and in foreign countries, all of the foregoing powers,
rights and privileges, and the enumeration of the foregoing
powers shall not be deemed to exclude any powers, rights or
privileges so granted or conferred; and
(u) In general, to carry on any other business in
connection with or incidental to its trust purposes,
to do everything necessary, suitable or proper for
the accomplishment of such purposes or for the attainment
of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant
to, or growing out of, or connected with, its business or
purposes, objects or powers.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or
one or more of its Series. Neither the Trust nor the Board
of Trustees shall be required to obtain any court order to
deal with any assets of the Trust or take any other action
hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that
the foregoing enumeration of specific purposes, objects and
powers shall not be held to limit or restrict in any manner
the powers of the Trust, and that they are in furtherance of,
and in addition to, and not in limitation of, the general powers
conferred upon the Trust by the DSTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of
one thing be deemed to exclude another, although it be of like
nature, not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided
into Shares, each Share without a par value. The number of
Shares in the Trust authorized hereunder, and of each Series
and Class as may be established from time to time, is unlimited.
The Board of Trustees may authorize the division of Shares
into separate Classes of Shares and into separate and distinct
Series of Shares and the division of any Series into separate
Classes of Shares in accordance with the 1940 Act.
The different Series and Classes shall be established and
designated pursuant to Article III, Section 6 hereof.
If no separate Series or Classes of Series shall be established,
the Shares shall have the rights, powers and duties provided
for herein and in Article III, Section 6 hereof to the extent
relevant and not otherwise provided for herein, and all references
to Series and Classes shall be construed (as the context may require)
to refer to the Trust.
The fact that the Trust shall have one or more established
and designated Classes of the Trust, shall not limit the authority
of the Board of Trustees to establish and designate additional
Classes of the Trust. The fact that one or more Classes of the
Trust shall have initially been established and designated without
any specific establishment or designation of a Series
(i.e., that all Shares of the Trust are initially Shares
of one or more Classes) shall not limit the authority of
the Board of Trustees to later establish and designate a
Series and establish and designate the Class or Classes of
the Trust as Class or Classes, respectively, of such Series.
The fact that a Series shall have initially been
established and designated without any specific establishmentl
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 consen
t 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 Trustee
s 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 Classe
s 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 Classe
s thereof, no Share of a particular Class of such Series
shall have any priority or preference over any other
Share of the same Class of such Series with respect to
dividends or distributions paid in the ordinary course
of business or distributions upon dissolution of such
Series made pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably
among all Shareholders of the Trust, a particular Class
of the Trust, a particular Series, or a particular Class
of a Series from the Trust Property held with respect to
the Trust, such Series or such Class, respectively, according
to the number of Shares of the Trust, such Series or such
Class held of record by such Shareholders on the record date
for any dividend or distribution; provided however, that
if the Shares of the Trust are divided into Series
thereof, all dividends and distributions from the Trust
Property and, if applicable, held with respect to such Series,
shall be distributed to each Series thereof according to the
net asset value computed for such Series and within such particular
Series, shall be distributed ratably to the Shareholders of such
Series according to the number of Shares of such Series held of
record by such Shareholders on the record date for any dividend
or distribution; and
if the Shares of the Trust or of a Series are divided into
Classes thereof, all dividends and distributions from the Trust
Property and, if applicable, held with respect to the Trust or such
Series, shall be distributed to each Class thereof according to
the net asset value computed for such Class and within such
particular Class, shall be distributed ratably to the Shareholders
of such Class according to the number of Shares of such Class held
of record by such Shareholders on the record date for any dividend
or distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set aside
out of any funds of the Trust, or the applicable Series thereof
, available for dividends such sum or sums as the Board of
Trustees may from time to time, in its absolute discretion,
think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the Trust, or any Series thereof, or for such other
lawful purpose as the Board of Trustees shall deem to be in the
best interests of the Trust, or the applicable Series, as the
case may be, and the Board of Trustees may abolish any such
reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the Trust
relating to the Shares, as such prospectus may be amended
from time to time:
(a) The Trust shall purchase such Shares as are offered
by any Shareholder for redemption upon the presentation of
a proper instrument of transfer together with a request
directed to the Trust or a Person designated by the Trust
that the Trust purchase such Shares and/or in accordance
with such other procedures for redemption as the Board of
Trustees may from time to time authorize. If certificates
have been issued to a Shareholder, any request for redemption
by such Shareholder must be accompanied by surrender of any
outstanding certificate or certificates for such Shares in form
for transfer, together with such proof of the authenticity of
signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset
value thereof as determined by the Trustees (or by such Person
to whom such determination has been delegated) (excluding any
applicable redemption fee or sales load), in accordance with
this Declaration of Trust, the By-Laws, the 1940 Act and other
applicable law. Payments for Shares so redeemed by the Trust
shall be made in cash, except payment for such Shares may,
at the option of the Board of Trustees, or such officer or
officers as it may duly authorize in its complete discretion,
be made in kind or partially in cash and partially in kind.
In case of any payment in kind, the Board of Trustees, or
its authorized officers, shall have absolute discretion as
to what security or securities of the Trust or the applicable
Series shall be distributed in kind and the amount of the
same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in
computing the then current net asset value of the Shares,
provided that any Shareholder who cannot legally acquire
securities so distributed in kind shall receive cash to
the extent permitted by the 1940 Act. Shareholders shall
bear the expenses of in-kind transactions, including,
but not limited to, transfer agency fees, custodian fees
and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares
shall be made by the Trust to the Shareholder within seven
days after the date on which the redemption request is received
in proper form and/or such other procedures authorized by the
Board of Trustees are complied with; provided, however, that
if payment shall be made other than exclusively in cash, any
securities to be delivered as part of such payment shall be
delivered as promptly as any necessary transfers of such
securities on the books of the several corporations or other
Person whose securities are to be delivered practicably can
be made, which may not necessarily occur within such seven-day
period. In no case shall the Trust be liable for any delay of
any corporation or other Person in transferring securities
selected for delivery as all or part of any payment in kind.
(d) The obligations of the Trust set forth in this Section
2 are subject to the provision that such obligations may be
suspended or postponed by the Board of Trustees (1) during any
time the New York Stock Exchange (the "Exchange") is closed
for other than weekends or holidays; (2) if permitted by the
rules of the Commission, during periods when trading on the
Exchange is restricted; or (3) during any National Financial
Emergency. The Board of Trustees may, in its discretion,
declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first
business day on which the Exchange shall have reopened or
the period specified above shall have expired (as to which,
in the absence of an official ruling by the Commission,
the determination of the Board of Trustees shall be conclusive).
In the case of a suspension of the right of redemption as
provided herein, a Shareholder may either withdraw the request
for redemption or receive payment based on the net asset value
per Share next determined after the termination of such suspension,
less any fees imposed on such redemption.
(e) The right of any Shareholder of the Trust or any Series
or Class thereof to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed, except the right of such
Shareholder to receive payment for such Shares, shall cease
at the time the purchase price of such Shares shall have been
fixed, as provided above.
Section 3. Redemptions at the Option of the Trust.
At the option of the Board of Trustees the Trust may,
from time to time, without the vote of the Shareholders,
but subject to the 1940 Act, redeem Shares or authorize
the closing of any Shareholder account, subject to such
conditions and for such reasons as may be established
from time to time by the Board of Trustees, including,
without limitation, (i) the determination of the Trustees
that direct or indirect ownership of Shares of the Trust
or any Series has or may become concentrated in such
Shareholder to an extent that would disqualify any Series
as a regulated investment company under the Code (or any
successor statute thereto), (ii) the failure of a Shareholder
to supply a tax identification number if required to do so,
or to have the minimum investment required (which may vary
by Series or Class), (iii) if the Share activity of the
account or ownership of Shares by a particular Shareholder
is deemed by the Trustees either to affect adversely the
management of the Trust or any Series or Class or not to
be in the best interests of the remaining Shareholders
of the Trust or any Series or Class or (iv) the failure of
a Shareholder to pay when due for the purchase of Shares
issued to him. Any such redemption shall be effected at
the redemption price and in the manner provided in this
Article VI.
Section 4. Transfer of Shares. Shares shall be
transferable in accordance with the provisions of the
By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any
Person who is or was a Trustee, officer, employee or other
agent of the Trust or is or was serving at the request of
the Trust as a trustee, director, officer, employee or
other agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise;
"Proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative
or investigative; and "Expenses" include without limitation
attorneys' fees and any expenses of establishing a right to
indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good
faith and fair dealing, for such Agent's own willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Agent (such
conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and
to the fullest extent that limitations on the liability
of Agents are permitted by the DSTA, the Agents shall not
be responsible or liable in any event for any act or omission
of any other Agent of the Trust or any Investment Adviser or
Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as
such, shall be personally liable to any Person, other than
the Trust or a Shareholder to the extent provided in subsections
(b) and (c) of this Section 1, for any act, omission or
obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall,
in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure
to act resulting from reliance in good faith upon the books
of account or other records of the Trust, upon an opinion of
counsel, or upon reports made to the Trust by any of its
officers or employees or by the Investment Adviser, the
Principal Underwriter, any other Agent, selected dealers,
accountants, appraisers or other experts or consultants,
regardless of whether such counsel or expert may also be a
Trustee, as to matters the Trustee, officer or employee of
the Trust reasonably believes are within such Person's
professional or expert competence. The officers and
Trustees may obtain the advice of counsel or other experts
with respect to the meaning and operation of this Declaration
of Trust, the By-Laws, applicable law and their respective
duties as officers or Trustees. No such officer or Trustee
shall be liable for any act or omission in accordance with
such advice, records and/or reports and no inference concerning
liability shall arise from a failure to follow such advice,
records and/or reports. The officers and Trustees shall not
be required to give any bond hereunder, nor any surety if a
bond is required by applicable law.
(f) The failure to make timely collection of dividends or
interest, or to take timely action with respect to entitlements,
on the Trust's securities issued in emerging countries, shall
not be deemed to be negligence or other fault on the part of
any Agent, and no Agent shall have any liability for such failure
or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect
the liquidity of the Trust's assets or from any war or political
act of any foreign government to which such assets might be
exposed, except, in the case of a Trustee or officer, for
liability resulting from such Trustee's or officer's
Disqualifying Conduct.
(g) The limitation on liability contained in this
Article applies to events occurring at the time a Person
serves as an Agent whether or not such Person is an Agent
at the time of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely
affect any right or protection of an Agent that exists at
the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify,
out of Trust Property, to the fullest extent permitted under
applicable law, any Person who was or is a party, potential
party or non-party witness or is threatened to be made a party,
potential party or non-party witness to any Proceeding by
reason of the fact that such Person is or was an Agent of
the Trust, against Expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in
connection with such Proceeding if such Person acted in good
faith or in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such Person
was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction or plea of nolo contendere or
its equivalent shall not of itself create a presumption
that the Person did not act in good faith or that the Person
had reasonable cause to believe that the Person's conduct
was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any
provision to the contrary contained herein, there shall be
no right to indemnification for any liability arising by
reason of the Agent's Disqualifying Conduct. In respect of
any claim, issue or matter as to which that Person shall
have been adjudged to be liable in the performance of that
Person's duty to the Trust or the Shareholders, indemnification
shall be made only to the extent that the court in which that
action was brought shall determine, upon application or otherwise,
that in view of all the circumstances of the case, that Person
was not liable by reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article
shall be made by the Trust if authorized in the specific case
on a determination that indemnification of the Agent is proper
in the circumstances by (i) a final decision on the merits by
a court or other body before whom the proceeding was brought that
the Agent was not liable by reason of Disqualifying Conduct
(including, but not limited to, dismissal of either a court
action or an administrative proceeding against the Agent for
insufficiency of evidence of any Disqualifying Conduct) or,
(ii) in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the Agent was not liable
by reason of Disqualifying Conduct, by (1) the vote of a majority
of a quorum of the Trustees who are not (x) "interested persons"
of the Trust as defined in Section 2(a)(19) of the 1940 Act, (y)
parties to the proceeding, or (z) parties who have any economic
or other interest in connection with such specific case
(the "disinterested, non-party Trustees"); or (2) by independent
legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent
in defending any Proceeding may be advanced by the Trust
before the final disposition of the Proceeding on receipt of
an undertaking by or on behalf of the Agent to repay the
amount of the advance if it shall be determined ultimately
that the Agent is not entitled to be indemnified as
authorized in this Article; provided, that at least one of
the following conditions for the advancement of expenses
is met: (i) the Agent shall provide a security for his
undertaking, (ii) the Trust shall be insured against losses
arising by reason of any lawful advances, or (iii) a
majority of a quorum of the disinterested, non-party
Trustees of the Trust, or an independent legal counsel in a
written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that
there is reason to believe that the Agent ultimately will be
found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in this
Article shall affect any right to indemnification to which
Persons other than Trustees and officers of the Trust or any
subsidiary thereof may be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article
does not apply to any Proceeding against any trustee,
investment manager or other fiduciary of an employee benefit
plan in that Person's capacity as such, even though that
Person may also be an Agent of the Trust as defined in
Section 1 of this Article. Nothing contained in this Article
shall limit any right to indemnification to which such a
trustee, investment manager, or other fiduciary may be entitled
by contract or otherwise which shall be enforceable to the extent
permitted by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding any
other provision in this Declaration of Trust to the contrary,
any amount of indemnification and any advancement of expenses
that any Agent is entitled to be paid under Section 2 shall be
deemed to be joint and several obligations of the Trust and
each Series, and the assets of the Trust and each Series shall
be subject to the claims of any Agent therefor under this
Article VII; provided that any such liability, expense or
obligation may be allocated and charged by the Board of Trustees
between or among the Trust and/or any one or more Series
(and Classes) in such manner as the Board of Trustees in its
sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted
by applicable law, the Board of Trustees shall have the
authority to purchase with Trust Property, insurance for
liability and for all Expenses reasonably incurred or paid
or expected to be paid by an Agent in connection with any
Proceeding in which such Agent becomes involved by virtue
of such Agent's actions, or omissions to act, in its capacity
or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. Derivative Actions. In addition to the requirements
set forth in Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only if the
following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Board of Trustees to bring the subject action unless an
effort to cause the Board of Trustees to bring such an action is
not likely to succeed. For purposes of this Section 4, a demand
on the Board of Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of
Trustees, or a majority of any committee established to
consider the merits of such action, is composed of Trustees
who are not "independent trustees" (as such term is defined
in the DSTA).
(b) Unless a demand is not required under paragraph (a)
of this Section 4, Shareholders eligible to bring such derivative
action under the DSTA who hold at least 10% of the outstanding
Shares of the Trust, or 10% of the outstanding Shares of the
Series or Class to which such action relates, shall join in the
request for the Board of Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of
this Section 4, the Board of Trustees must be afforded a reasonable
amount of time to consider such Shareholder request and to
investigate the basis of such claim. The Board of Trustees shall
be entitled to retain counsel or other advisors in considering
the merits of the request and shall require an undertaking by
the Shareholders making such request to reimburse the Trust for
the expense of any such advisors in the event that the Board of
Trustees determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate
a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who
are "independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions
(collectively, "claims") that under applicable law must
be brought as derivative claims, each Shareholder of the
Trust or any Series or Class thereof agrees that any
claim that affects all Shareholders of a Series or Class
equally, that is, proportionately based on their number
of Shares in such Series or Class, must be brought as
a derivative claim subject to this Section 4 irrespective
of whether such claim involves a violation of the Shareholders'
rights under this Declaration of Trust or any other alleged
violation of contractual or individual rights that might
otherwise give rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial.
In accordance with Section 3804(e) of the DSTA any suit,
action or proceeding brought by or in the right of any
Shareholder or any person claiming any interest in any
Shares seeking to enforce any provision of, or based on
any matter arising out of, or in connection with, this
Declaration of Trust or the Trust, any Series or Class
or any Shares, including any claim of any nature against
the Trust, any Series or Class, the Trustees or officers
of the Trust, shall be brought exclusively in the Court
of Chancery of the State of Delaware to the extent there
is subject matter jurisdiction in such court for the
claims asserted or, if not, then in the Superior Court
of the State of Delaware, and all Shareholders and
other such Persons hereby irrevocably consent to the
jurisdiction of such courts (and the appropriate
appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waive, to the
fullest extent permitted by law, any objection they
may make now or hereafter have to the laying of the
venue of any such suit, action or proceeding in such
court or that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum
and further, in connection with any such suit, action, or
proceeding brought in the Superior Court in the State of Delaware,
all Shareholders and all other such Persons irrevocably waive
the right to a trial by jury to the fullest extent permitted by
law. All Shareholders and other such Persons agree that service
of summons, complaint or other process in connection with any
proceedings may be made by registered or certified mail or by
overnight courier addressed to such Person at the address
shown on the books and records of the Trust for such Person
or at the address of the Person shown on the books and records
of the Trust with respect to the Shares that such Person claims
an interest in. Service of process in any such suit, action or
proceeding against the Trust or any Trustee or officer of the
Trust may be made at the address of the Trust's registered agent
in the State of Delaware. Any service so made shall be
effective as if personally made in the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust
and each Series shall have perpetual existence, except that
the Trust (or a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the
holders of not less than a majority of the Shares of the
Trust cast, or (ii) at the discretion of the Board of Trustees
either (A) at any time there are no Shares outstanding of the
Trust, or (B) upon prior written notice to the Shareholders
of the Trust; or
(b) With respect to a particular Series, (i) upon the vote
of the holders of not less than a majority of the Shares of
such Series cast, or (ii) at the discretion of the Board of
Trustees either (A) at any time there are no Shares outstanding
of such Series, or (B) upon prior written notice to the Shareholders
of such Series; or
(c) With respect to the Trust (or a particular Series), upon
the occurrence of a dissolution or termination event pursuant to
any other provision of this Declaration of Trust (including
Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that 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 establishmen
t 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 Xxxxxxxxx
International Trust named below do hereby make and enter
into this Declaration of Trust as of the date first written above.
/s/ Harris J. 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, Xx.
Xxxxxx X. Xxxxxxx, Xx., Trustee
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Trustee
