AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN GOLD AND PRECIOUS METALS FUND
A DELAWARE STATUTORY TRUST
(Original Agreement and Declaration of Trust was adopted
November 16, 1999
current Amended and Restated Agreement and Declaration of
Trust
adopted May 21, 2007.)
TABLE OF CONTENTS
PAGE
ARTICLE I. NAME; OFFICES; REGISTERED AGENT;
DEFINITIONS.......................................2
Section 0.Xxxx..............................................2
Section 2.Offices of the Trust..............................2
Section 3.Registered Agent and Registered Office............2
Section 4.Definitions.......................................2
ARTICLE II. PURPOSE OF TRUST..................................4
ARTICLE III. SHARES............................................7
Section 1.Division of Beneficial Interest...................7
Section 2.Ownership of Shares...............................9
Section 0.Xxxx of Shares....................................9
Section 4.Status of Shares and Limitation of
Personal Liability................................9
Section 5.Power of Board of Trustees to Make Tax
Status Election..................................10
Section 6.Establishment and Designation of Series
and Classes......................................10
(a) Assets Held with Respect to a
Particular Series...........................11
(b) Liabilities Held with Respect to a
Particular Series or Class..................11
(c) Dividends, Distributions and
Redemptions.................................12
(d) Voting......................................12
(e) Equality....................................13
(f) Fractions...................................13
(g) Exchange Privilege..........................13
(h) Combination of Series or Classes............13
(i) Dissolution or Termination..................13
Section 7.Indemnification of Shareholders..................14
ARTICLE IV. THE BOARD OF TRUSTEES............................14
Section 1.Number, Election, Term, Removal and
Resignation......................................14
Section 2.Trustee Action by Written Consent
Without a Meeting................................15
Section 3.Powers; Other Business Interests; Quorum
and Required Vote................................15
(a) Powers......................................15
(b) Other Business Interests....................16
(c) Quorum and Required Vote....................17
Section 4.Payment of Expenses by the Trust.................17
Section 5.Payment of Expenses by Shareholders..............17
Section 6.Ownership of Trust Property......................17
Section 7.Service Contracts................................17
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS.........19
Section 0.Xxxxxx Powers....................................19
Section 2.Quorum and Required Vote.........................19
Section 3.Shareholder Action by Written Consent
Without a Meeting................................20
Section 4.Record Dates.....................................20
Section 5.Additional Provisions............................21
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS...........................21
Section 1.Determination of Net Asset Value, Net
Income and Distributions.........................21
Section 2.Redemptions at the Option of a
Shareholder......................................23
Section 3.Redemptions at the Option of the Trust...........24
Section 4.Transfer of Shares...............................25
ARTICLE VII. LIMITATION OF LIABILITY AND
INDEMNIFICATION OF AGENT.........................25
Section 1.Limitation of Liability..........................25
Section 2.Indemnification..................................26
(a) Indemnification by Trust....................26
(b) Exclusion of Indemnification................26
(c) Required Approval...........................26
(d) Advancement of Expenses.....................27
(e) Other Contractual Rights....................27
(f) Fiduciaries of Employee Benefit Plan........27
Section 0.Xxxxxxxxx........................................27
Section 4.Derivative Actions...............................27
ARTICLE VIII. CERTAIN TRANSACTIONS.............................28
Section 1.Dissolution of Trust or Series...................28
Section 2.Merger or Consolidation; Conversion;
Reorganization...................................29
(a) Merger or Consolidation.....................29
(b) Conversion..................................29
(c) Reorganization..............................30
Section 3.Master Feeder Structure..........................30
Section 4.Absence of Appraisal or Dissenters'
Rights...........................................31
ARTICLE IX. AMENDMENTS.......................................31
Section 1.Amendments Generally.............................31
ARTICLE X. MISCELLANEOUS....................................31
Section 1.References; Headings; Counterparts...............31
Section 2.Applicable Law...................................31
Section 3.Provisions in Conflict with Law or
Regulations......................................32
Section 4.Statutory Trust Only.............................32
Section 5.Use of the Names "Franklin,"
"Xxxxxxxxx," "Fiduciary Trust," and/or
"Institutional Fiduciary Trust"..................32
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN GOLD AND PRECIOUS METALS FUND
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF
TRUST is made as of this 21st day of May, 2007, by the
Trustees hereunder and by the holders of Shares issued or to
be issued by Franklin Gold and Precious Metals Fund (the
"Trust") hereunder, and (i) incorporates herein and makes a
part of this Amended and Restated Agreement and Declaration
of Trust the resolutions of the Board of Trustees of the
Trust adopted prior to the date set forth above, pursuant to
the provisions of the original Agreement and Declaration of
Trust dated November 16, 1999, as amended or restated to
date (the "Original Declaration of Trust"), regarding the
establishment and designation of Series and/or Classes of
the Shares of the Trust, and any amendments or modifications
to such resolutions adopted through the date hereof, as of
the date of the adoption of each such resolution, and (ii)
amends and restates the Original Declaration of Trust
pursuant to Article VIII, Section 8.04 of such Original
Declaration of Trust, as hereinafter provided.
WITNESSETH:
WHEREAS this Trust was formed to carry on the business
of an open-end management investment company as defined in
the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares
into two or more Classes, to issue its Shares in separate
Series, to divide Shares of any Series into two or more
Classes and to issue Classes of the Trust or the Series, if
any, all in accordance with the provisions hereinafter set
forth; and
WHEREAS the Trustees have agreed to manage all property
coming into their hands as trustees of a Delaware statutory
trust in accordance with the provisions of the Delaware
Statutory Trust Act, as amended from time to time, and the
provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration of Trust is amended and
restated in its entirety in the manner herein set forth;
(ii) the Trustees will hold all cash, securities and
other assets that they may from time to time acquire in any
manner as Trustees hereunder IN TRUST and will manage and
dispose of the same upon the following terms and conditions
for the benefit of the holders from time to time of Shares
created hereunder as hereinafter set forth; and
(iii) 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 the Original Declaration of
Trust and/or this Declaration of Trust and the By-Laws.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. NAME. This Trust shall be known as "Franklin
Gold and Precious Metals Fund" and the Board of Trustees
shall conduct the business of the Trust under that name, or
any other name as it may from time to time designate.
Section 2. OFFICES OF THE TRUST. The Board may at any
time establish offices of the Trust at any place or places
where the Trust intends to do business.
Section 3. REGISTERED AGENT AND REGISTERED OFFICE. The
name of the registered agent of the Trust and the address of
the registered office of the Trust are as set forth in the
Trust's Certificate of Trust.
Section 4. DEFINITIONS. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) "1940 ACT" shall mean the Investment Company Act
of 1940 and the rules and regulations thereunder, all as
adopted or amended from time to time;
(b) "AFFILIATE" shall have the same meaning as
"affiliated person" as such term is defined in the 1940 Act
when used with reference to a specified Person, as defined below.
(c) "BOARD OF TRUSTEES" shall mean the governing body
of the Trust, that is comprised of the number of Trustees of
the Trust fixed from time to time pursuant to Article IV
hereof, having the powers and duties set forth herein;
(d) "BY-LAWS" shall mean By-Laws of the Trust, as
amended or restated from time to time in accordance with Article
VIII therein. Such By-Laws may contain any provision not
inconsistent with applicable law or this Declaration of
Trust, relating to the governance of the Trust;
(e) "CERTIFICATE OF TRUST" shall mean the certificate
of trust of the Trust filed on November 16, 1999 with the
office of the Secretary of State of the State of Delaware as
required under the Delaware Statutory Trust Act, as such
certificate has been or shall be amended or restated from
time to time;
(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
or the corresponding provisions of the Original Declaration
of Trust;
(g) "CODE" shall mean the Internal Revenue Code of 1986
and the rules and regulations thereunder, all as adopted or
amended from time to time;
(h) "COMMISSION" shall have the meaning given that term
in the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 DEL. C. ss. 3801, ET SEQ.), as amended from time to time;
(j) "DECLARATION OF TRUST" shall mean this Amended
and Restated Agreement and Declaration of Trust, including
resolutions of the Board of Trustees of the Trust that have
been adopted prior to the date of this document, or that may
be adopted hereafter, regarding the establishment and
designation of Series and/or Classes of Shares of the Trust,
and any amendments or modifications to such resolutions, as
of the date of the adoption of each such resolution;
(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, or the corresponding provisions of the Original
Declaration of Trust;
(r) "SHARES" shall mean the transferable shares of
beneficial interest into which the beneficial interest in the Trust
have been or shall be divided from time to time, and shall include
fractional and whole Shares;
(s) "SHAREHOLDER" shall mean a record owner of Shares
pursuant to the By-Laws;
(t) "TRUST" shall mean Franklin Gold and Precious Metals
Fund, the Delaware statutory trust formed hereby and by filing of
the Certificate of Trust with the office of the Secretary of State
of the State of Delaware;
(u) "TRUST PROPERTY" shall mean any and all property,
real or personal, tangible or intangible, which is owned or held
by or for the account of the Trust, or one or more of any Series
thereof, including, without limitation, the rights referenced in
Article X, Section 5 hereof; and
(v) "TRUSTEE" or "TRUSTEES" shall mean each Person who
signs this Declaration of Trust as a trustee and all other Persons
who may, from time to time, be duly elected or appointed, qualified
and serving on the Board of Trustees in accordance with the
provisions hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with the terms
hereof and the By-Laws. Reference herein to a Trustee or the
Trustees shall refer to such Person or Persons in such Person's
or Persons' capacity as a trustee or trustees hereunder and under
the By-Laws.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and
carry on the business of a registered management investment
company registered under the 1940 Act, directly, or if one
or more Series is established hereunder, through one or more
Series, investing primarily in securities, and to exercise
all of the powers, rights and privileges granted to, or
conferred upon, a statutory trust formed under the DSTA,
including, without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in
connection therewith, to make any changes in the investment
of the assets of the Trust, to hold part or all of its funds
in cash, to hold cash uninvested, to subscribe for, invest
in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, mortgage, transfer, exchange,
distribute, write options on, lend or otherwise deal in or
dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities or
property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, shares,
units of beneficial interest, preferred stocks, negotiable
or non-negotiable instruments, obligations, evidences of
indebtedness, money market instruments, certificates of
deposit or indebtedness, bills, notes, mortgages, commercial
paper, repurchase or reverse repurchase agreements, bankers'
acceptances, finance paper, and any options, certificates,
receipts, warrants, futures contracts or other instruments
representing rights to receive, purchase or subscribe for
the same, or evidencing or representing any other rights or
interests therein or in any property or assets, and other
securities of any kind, as the foregoing are issued,
created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and
possessions of the United States and the District of
Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign
government, or any international instrumentality, or by any
bank or savings institution, or by any corporation or
organization organized under the laws of the United States
or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law,
or in "when issued" contracts for any such securities;
(b) To exercise any and all rights, powers and
privileges with reference to or incident to ownership or
interest, use and enjoyment of any of such securities and
other instruments or property of every kind and description,
including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate,
assign, exchange, lend, transfer, mortgage, hypothecate,
lease, pledge or write options with respect to or otherwise
deal with, dispose of, use, exercise or enjoy any rights,
title, interest, powers or privileges under or with
reference to any of such securities and other instruments
or property, the right to consent and otherwise act with
respect thereto, with power to designate one or more
Persons, to exercise any of said rights, powers, and
privileges in respect of any of said instruments, and to
do any and all acts and things for the preservation,
protection, improvement and enhancement in value of any
of such securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage,
hypothecate, lease or write options with respect to or
otherwise deal in any property rights relating to any or
all of the assets of the Trust or any Series, subject to
any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights
of ownership, with respect to stock or other securities or
property; and to execute and deliver proxies or powers of
attorney to such Person or Persons as the Trustees shall
deem proper, granting to such Person or Persons such power
and discretion with relation to securities or property as
the Trustees shall deem proper;
(e) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of
securities and/or other property;
(f) To hold any security or property in a form not
indicating that it is trust property, whether in bearer,
unregistered or other negotiable form, or in its own name or
in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a
subcustodian or a nominee or nominees to deposit the same in
a securities depository, subject in each case to proper
safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for
the reorganization, consolidation or merger of any corporation
or issuer of any security which is held in the Trust; to
consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls
or subscriptions with respect to any security held in the
Trust;
(h) To join with other security holders in acting
through a committee, depositary, voting trustee or otherwise,
and in that connection to deposit any security with, or transfer
any security to, any such committee, depositary or trustee,
and to delegate to them such power and authority with
relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree
to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty
or suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust
Property such insurance as the Board of Trustees may deem
necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal
on
its portfolio investments, and insurance policies insuring
the Shareholders, Trustees, officers, employees, agents,
Investment Advisers, Principal Underwriters, or independent
contractors of the Trust, individually against all claims
and liabilities of every nature arising by reason of holding
Shares, holding, being or having held any such office or
position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer,
employee, agent, Investment Adviser, Principal Underwriter,
or independent contractor, to the fullest extent permitted
by this Declaration of Trust, the By-Laws and by applicable
law;
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts
and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy,
property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own,
exchange, rent or otherwise acquire and dispose of, and to
develop, improve, manage, subdivide, and generally to deal and
trade in real property, improved and unimproved, and wheresoever
situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of
the Trust, and to mortgage or pledge the whole or any part of the
property and franchises of the Trust, real, personal, and mixed,
tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and
undertakings of every kind for any lawful purpose, without limit
as to amount;
(r) To issue, purchase, sell and transfer, reacquire,
hold, trade and deal in stocks, Shares, bonds, debentures and
other securities, instruments or other property of the Trust,
from time to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust,
determine; and to re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise,
abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating to the
Trust, and out of the assets of the Trust to pay or to satisfy any
debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include without
limitation the power of the Trustees or any appropriate committee
thereof, in the exercise of their or its good faith business
judgment, to dismiss any action, suit, proceeding, dispute, claim,
or demand, derivative or otherwise, brought by any Person,
including a Shareholder in the Shareholder's own name or the
name of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the subject
matter arises by reason of business for or on behalf of the
Trust;
(t) To exercise and enjoy, in Delaware and in any other
states, territories, districts and United States dependencies and
in foreign countries, all of the foregoing powers, rights and
privileges, and the enumeration of the foregoing powers shall not
be deemed to exclude any powers, rights or privileges so granted
or conferred; and
(u) In general, to carry on any other business in
connection with or incidental to its trust purposes, to do
everything necessary, suitable or proper for the accomplishment
of such purposes or for the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone
or in association with others, and to do every other act or thing
incidental or appurtenant to, or growing out of, or connected with,
its business or purposes, objects or powers.
The Trust shall not be limited to investing in
obligations maturing before the possible dissolution of the
Trust or one or more of its Series. Neither the Trust nor
the Board of Trustees shall be required to obtain any court
order to deal with any assets of the Trust or take any other
action hereunder.
The foregoing clauses shall each be construed as
purposes, objects and powers, and it is hereby expressly
provided that the foregoing enumeration of specific
purposes, objects and powers shall not be held to limit or
restrict in any manner the powers of the Trust, and that
they are in furtherance of, and in addition to, and not in
limitation of, the general powers conferred upon the Trust
by the DSTA and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be deemed
to exclude another, although it be of like nature, not
expressed.
ARTICLE III.
SHARES
Section 1. DIVISION OF BENEFICIAL INTEREST.
(a) The beneficial interest in the Trust shall be
divided into Shares, each Share without a par value. The
number of Shares in the Trust authorized under the Original
Declaration of Trust and 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. As of the effective date of this Declaration of Trust,
any new 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.
(i) The fact that the Trust shall have one or more established and
designated Classes of the Trust, shall notlimit the authority of
the Board of Trustees to establish and designate additional
Classes of the Trust. The fact that one or more Classes of the
Trust shall have initially been established and designated
without any specific establishment or designation of a Series
(i.e., that all Shares of the Trust are initially Shares of one
or more Classes) shall not limit the authority of the Board of
Trustees to later establish and designate a Series and establish
and designate the Class or Classes of the Trust as Class or
Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been established and
designated without any specific establishment or designation of
Classes (I.E., that all Shares of such Series are initially of a
single Class) shall not limit the authority of the Board of
Trustees to establish and designate separate Classes of said
Series. The fact that a Series shall have more than one
established and designated Class, shall not limit the authority
of the Board of Trustees to establish and designate additional
Classes of said Series.
(b) The Board of Trustees shall have the power to issue
authorized, but unissued Shares of beneficial interest of the Trust,
or any Series and Class thereof, from time to time for such consideration
paid wholly or partly in cash, securities or other property, as may be
determined from time to time by the Board of Trustees, subject to any
requirements or limitations of the 1940 Act. The Board of Trustees, on
behalf of the Trust, may acquire and hold as treasury shares, reissue for
such consideration and on such terms as it may determine, or cancel, at
its discretion from time to time, any Shares reacquired by the Trust.
The Board of Trustees may classify or reclassify any unissued Shares
of beneficial interest or any Shares of beneficial interest of the Trust
or any Series or Class thereof, that were previously issued and are
reacquired, into one or more Series or Classes that may be established
and designated from time to time. Notwithstanding the foregoing, the
Trust and any Series thereof may acquire, hold, sell and otherwise
deal in, for purposes of investment or otherwise, the Shares of any
other Series of the Trust or Shares of the Trust, and such Shares shall
not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article
III, each Share shall entitle the holder to voting rights as provided
in Article V hereof. Shareholders shall have no preemptive or other
right to subscribe for new or additional authorized, but unissued Shares
or other securities issued by the Trust or any Series thereof. The Board
of Trustees may from time to time divide or combine the Shares of the
Trust or any particular Series thereof into a greater or lesser number
of Shares of the Trust or that Series, respectively. Such division or
combination shall not materially change the proportionate beneficial
interests of the holders of Shares of the Trust or that Series, as the
case may be, in the Trust Property at the time of such division or
combination that is held with respect to the Trust or that Series, as
the case may be.
(d) Any Trustee, officer or other agent of the Trust, and
any organization in which any such Person has an economic or other
interest, may acquire, own, hold and dispose of Shares of beneficial
interest in the Trust or any Series and Class thereof, whether such
Shares are authorized but unissued, or already outstanding, to the
same extent as if such Person were not a Trustee, officer or other
agent of the Trust; and the Trust or any Series may issue and sell
and may purchase such Shares from any such Person or any such
organization, subject to the limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares herein
and the 1940 Act.
Section 2. OWNERSHIP OF SHARES. The ownership of Shares shall
be recorded on the books of the Trust kept by the Trust or by a transfer
or similar agent for the Trust, which books shall be maintained
separately for the Shares of the Trust and each Series and each Class
thereof that has been established and designated. No certificates
certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The
Board of Trustees may make such rules not inconsistent with the
provisions of the 1940 Act as it considers appropriate for the
issuance of Share certificates, the transfer of Shares of the Trust
and each Series and Class thereof, if any, and similar matters.
The record books of the Trust as kept by the Trust or any transfer
or similar agent, as the case may be, shall be conclusive as to who
are the Shareholders of the Trust and each Series and Class thereof
and as to the number of Shares of the Trust and each Series and Class
thereof held from time to time by each such Shareholder.
Section 3. SALE OF SHARES. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but unissued
Shares of beneficial interest to such Persons, at such times, on
such terms, and for such consideration as the Board of Trustees may
from time to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or fractional
Shares of the Trust or such Series thereof (and Class thereof, if
any), as the purchaser may select, at the net asset value per Share,
subject to Section 22 of the 1940 Act, and the rules and regulations
adopted thereunder; PROVIDED, HOWEVER, that the Board of Trustees
may, in its sole discretion, permit the Principal Underwriter to
impose a sales charge upon any such sale. Every Shareholder by
virtue of having become a Shareholder shall be deemed to have
expressly assented and agreed to the terms of this Declaration
of Trust and to have become bound as a party hereto.
Section 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property giving
to Shareholders only the rights provided in this Declaration of
Trust, the By-Laws, and under applicable law. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole or
any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners. Subject to
Article VIII, Section 1 hereof, the death, incapacity, dissolution,
termination, or bankruptcy of a Shareholder during the existence of
the Trust and any Series thereof shall not operate to dissolve the
Trust or any such Series, nor entitle the representative of any
deceased, incapacitated, dissolved, terminated or bankrupt
Shareholder to an accounting or to take any action in court or
elsewhere against the Trust, the Trustees or any such Series, but
entitles such representative only to the rights of said deceased,
incapacitated, dissolved, terminated or bankrupt Shareholder under
this Declaration of Trust. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust, shall have any power
to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of
any sum of money other than such as the Shareholder may at any time
personally agree to pay. Each Share, when issued on the terms
determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be
entitled to the same limitation of personal liability as that
extended to stockholders of a private corporation organized for
profit under the General Corporation Law of the State of Delaware.
Section 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS
ELECTION. The Board of Trustees shall have the power, in its
discretion, to make such elections as to the tax status of the
Trust and any Series as may be permitted or required under the
Code, without the vote of any Shareholder.
Section 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND
CLASSES. The establishment and designation of any Series or
Class shall be effective, without the requirement of
Shareholder approval, upon the adoption of a resolution by
not less than a majority of the then Board of Trustees, which
resolution shall set forth such establishment and designation
and may provide, to the extent permitted by the DSTA, for rights,
powers and duties of such Series or Class (including variations
in the relative rights and preferences as between the different
Series and Classes) otherwise than as provided herein. Each such
resolution shall be incorporated herein upon adoption, and the
resolutions that have been adopted prior to May 21, 2007 regarding
the establishment and designation of Series and/or Classes of
Shares of the Trust pursuant to the applicable provisions of
the Original Declaration of Trust, and any amendments or
modifications to such resolutions through the date hereof,
are hereby incorporated herein as of the date of their
adoption. Any such resolution may be amended by a further
resolution of a majority of the Board of Trustees, and if
Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of
Trust, such further resolution shall require the same
Shareholder approval that would be necessary to make such
amendment to the language set forth in this Declaration of
Trust. Each such further resolution shall be incorporated
herein by reference upon adoption.
Each Series shall be separate and distinct from any
other Series, separate and distinct records on the books of
the Trust shall be maintained for each Series, and the
assets and liabilities belonging to any such Series shall be
held and accounted for separately from the assets and
liabilities of the Trust or any other Series. Each Class of
the Trust shall be separate and distinct from any other
Class of the Trust. Each Class of a Series shall be
separate and distinct from any other Class of the Series.
As appropriate, in a manner determined by the Board of
Trustees, the liabilities belonging to any such Class shall
be held and accounted for separately from the liabilities of
the Trust, the Series or any other Class and separate and
distinct records on the books of the Trust for the Class
shall be maintained for this purpose. Subject to Article II
hereof, each such Series shall operate as a separate and
distinct investment medium, with separately defined
investment objectives and policies.
Shares of each Series (and Class where applicable)
established and designated pursuant to this Section 6, or
the corresponding provision of the Original Declaration of
Trust shall have the following rights, powers and duties,
unless otherwise provided to the extent permitted by the
DSTA, in the resolution establishing and designating such
Series or Class:
(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 the Original 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 has been set forth in
the Certificate of Trust filed in the Office of the
Secretary of State of the State of Delaware pursuant to the
DSTA, and having given 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) are
applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges,
reserves and expenses related to the distribution of, and
other identified expenses that should or may properly be
allocated to, the Shares of a particular Class may be
charged to and borne solely by such Class. The bearing of
expenses solely by a particular Class of Shares may be
appropriately reflected (in a manner determined by the Board
of Trustees) and may affect the net asset value attributable
to, and the dividend, redemption and liquidation rights of,
such Class. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or
under the direction of the Board of Trustees shall be
conclusive and binding upon the Shareholders of all Classes
for all purposes. All Persons who have extended credit that
has been allocated to a particular Class, or who have a
claim or contract that has been allocated to any particular
Class, shall look, and may be required by contract to look,
exclusively to that particular Class for payment of such
credit, claim, or contract.
(c) DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS.
Notwithstanding any other provisions of this Declaration of
Trust, including, without limitation, Article VI hereof, no
dividend or distribution including, without limitation, any
distribution paid upon dissolution of the Trust or of any
Series with respect to, nor any redemption of, the Shares of
any Series or Class of such Series shall be effected by the
Trust other than from the assets held with respect to such
Series, nor, except as specifically provided in Section 7 of
this Article III, shall any Shareholder of any particular
Series otherwise have any right or claim against the assets
held with respect to any other Series or the Trust generally
except, in the case of a right or claim against the assets
held with respect to any other Series, to the extent that
such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Board of Trustees
shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated
as income and which items as capital; and each such
determination and allocation shall be conclusive and binding
upon the Shareholders.
(d) VOTING. All Shares of the Trust entitled to
vote on a matter shall vote in the aggregate without
differentiation between the Shares of the separate Series,
if any, or separate Classes, if any; provided that (i) with
respect to any matter that affects only the interests of
some but not all Series, then only the Shares of such affected
Series, voting separately, shall be entitled to vote on the
matter, (ii) with respect to any matter that affects only the
interests of some but not all Classes, then only the Shares
of such affected Classes, voting separately, shall be
entitled to vote on the matter; and (iii) notwithstanding
the foregoing, with respect to any matter as to which the
1940 Act or other applicable law or regulation requires
voting, by Series or by Class, then the Shares of the Trust
shall vote as prescribed in such law or regulation.
(e) EQUALITY. Each Share of any particular Series
shall be equal to each other Share of such Series (subject to
the rights and preferences with respect to separate Classes of
such Series).
(f) FRACTIONS. A fractional Share of a Series shall
carry proportionately all the rights and obligations of a whole
Share of such Series, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and
dissolution of the Trust or that Series.
(g) EXCHANGE PRIVILEGE. The Board of Trustees shall
have the authority to provide that the holders of Shares of any
Series shall have the right to exchange said Shares for Shares
of one or more other Series in accordance with such requirements
and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) COMBINATION OF SERIES OR CLASSES.
(i) The Board of Trustees shall have the
authority, without the approval, vote or consent of the
Shareholders of any Series, unless otherwise required by
applicable law, to combine the assets and liabilities held
with respect to any two or more Series into assets and
liabilities held with respect to a single Series; PROVIDED
that upon completion of such combination of Series, the
interest of each Shareholder, in the combined assets and
liabilities held with respect to the combined Series shall
equal the interest of each such Shareholder in the aggregate
of the assets and liabilities held with respect to the
Series that were combined.
(ii) The Board of Trustees shall have the
authority, without the approval, vote or consent of the
Shareholders of any Series or Class, unless otherwise
required by applicable law, to combine, merge or otherwise
consolidate the Shares of two or more Classes of Shares of a
Series with and/or into a single Class of Shares of such
Series, with such designation, preference, conversion or
other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of
redemption and other characteristics as the Trustees may
determine; provided, however, that the Trustees shall
provide written notice to the affected Shareholders of any
such transaction.
(iii) The transactions in (i) and (ii) above
may be effected through share-for-share exchanges, transfers
or sales of assets, Shareholder in-kind redemptions and
purchases, exchange offers, or any other method approved by
the Trustees.
(i) DISSOLUTION OR TERMINATION. Any particular
Series shall be dissolved upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall
wind up the affairs of such Series in accordance with Article
VIII, Section 1 hereof and thereafter, rescind the establishment
and designation thereof. The Board of Trustees shall terminate
any particular Class and rescind the establishment and
designation thereof: (i) upon approval by a majority of
votes cast at a meeting of the Shareholders of such Class,
provided a quorum of Shareholders of such Class are present,
or by action of the Shareholders of such Class by written
consent without a meeting pursuant to Article V, Section 3;
or (ii) at the discretion of the Board of Trustees either
(A) at any time there are no Shares outstanding of such
Class, or (B) upon prior written notice to the Shareholders
of such Class; PROVIDED, HOWEVER, that upon the rescission
of the establishment and designation of any particular
Series, every Class of such Series shall thereby be
terminated and its establishment and designation rescinded.
Each resolution of the Board of Trustees pursuant to this
Section 6(i) shall be incorporated herein by reference upon
adoption.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. No
shareholder as such shall be subject to any personal
liability whatsoever to any Person in connection with Trust
Property or the acts, obligations or affairs of the Trust.
If any Shareholder or former Shareholder shall be exposed to
liability, charged with liability, or held personally
liable, for any obligations or liability of the Trust, by
reason of a claim or demand relating exclusively to his or
her being or having been a Shareholder of the Trust or a
Shareholder of a particular Series thereof, and not because
of such Shareholder's actions or omissions, such Shareholder
or former Shareholder (or, in the case of a natural person,
his or her heirs, executors, administrators, or other legal
representatives or, in the case of a corporation or other
entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out of the
assets of the Trust or out of the assets of such Series
thereof, as the case may be, against all loss and expense,
including without limitation, attorneys' fees, arising from
such claim or demand; PROVIDED, HOWEVER, such indemnity
shall not cover (i) any taxes due or paid by reason of such
Shareholder's ownership of any Shares and (ii) expenses
charged to a Shareholder pursuant to Article IV, Section 5
hereof.
ARTICLE IV.
THE BOARD OF TRUSTEES
Section 1. NUMBER, ELECTION, TERM, REMOVAL AND
RESIGNATION.
(a) In accordance with Section 3801 of the DSTA, each
Trustee shall become a Trustee and be bound by this
Declaration of Trust and the By-Laws when such Person signs
this Declaration of Trust as a trustee and/or is duly
elected or appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof and the
By-Laws, so long as such signatory or other Person continues
in office in accordance with the terms hereof.
(b) The number of Trustees constituting the entire
Board of Trustees may be fixed from time to time by the vote
of a majority of the then Board of Trustees; PROVIDED, HOWEVER,
that the number of Trustees shall in no event be less than
one (1) nor more than fifteen (15). The number of Trustees
shall not be reduced so as to shorten the term of any
Trustee then in office.
(c) Each Trustee shall hold office for the lifetime
of the Trust or until such Trustee's earlier death, resignation,
removal, retirement or inability otherwise to serve, or, if
sooner than any of such events, until the next meeting of
Shareholders called for the purpose of electing Trustees or
consent of Shareholders in lieu thereof for the election of
Trustees, and until the election and qualification of his or
her successor.
(d) Any Trustee may be removed, with or without cause,
by the Board of Trustees, by action of a majority of the
Trustees then in office, or by vote of the Shareholders at
any meeting called for that purpose.
(e) Any Trustee may resign at any time by giving
written notice to the secretary of the Trust or to a meeting
of the Board of Trustees. Such resignation shall be effective
upon receipt, unless specified to be effective at some later time.
Section 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT
A MEETING. To the extent not inconsistent with the provisions
of the 1940 Act, any action that may be taken at any meeting
of the Board of Trustees or any committee thereof may be
taken without a meeting and without prior written notice if
a consent or consents in writing setting forth the action so
taken is signed by the Trustees having not less than the
minimum number of votes that would be necessary to authorize
or take that action at a meeting at which all Trustees on
the Board of Trustees or any committee thereof, as the case
may be, were present and voted. Written consents of the
Trustees may be executed in one or more counterparts. A
consent transmitted by electronic transmission (as defined
in Section 3806 of the DSTA) by a Trustee shall be deemed to
be written and signed for purposes of this Section. All
such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM
AND REQUIRED VOTE.
(a) POWERS. Subject to the provisions of this
Declaration of Trust, the business of the Trust (including every
Series thereof) shall be managed by or under the direction of
the Board of Trustees, and such Board of Trustees shall have all
powers necessary or convenient to carry out that responsibility.
The Board of Trustees shall have full power and authority to do
any and all acts and to make and execute any and all contracts
and instruments that it may consider necessary or appropriate
in connection with the operation and administration of the Trust
(including every Series thereof). The Board of Trustees shall
not be bound or limited by present or future laws or customs with
regard to investments by trustees or fiduciaries, but, subject to
the other provisions of this Declaration of Trust and the By-Laws,
shall have full authority and absolute power and control over the
assets and the business of the Trust (including every Series
thereof) to the same extent as if the Board of Trustees was the
sole owner of such assets and business in its own right, including
such authority, power and control to do all acts and things as it,
in its sole discretion, shall deem proper to accomplish the purposes
of this Trust. Without limiting the foregoing, the Board of
Trustees may, subject to the requisite vote for such actions as set
forth in this Declaration of Trust and the By-Laws: (1) adopt By-Laws
not inconsistent with applicable law or this Declaration of Trust;
(2) amend, restate and repeal such By-Laws, subject to and in
accordance with the provisions of such By-Laws; (3) fill vacancies
on the Board of Trustees in accordance with this Declaration of
Trust and the By-Laws; (4) elect and remove such officers and
appoint and terminate such agents as it considers appropriate,
in accordance with this Declaration of Trust and the By-Laws;
(5) establish and terminate one or more committees of the
Board of Trustees pursuant to the By-Laws; (6) place Trust
Property in custody as required by the 1940 Act, employ one
or more custodians of the Trust Property and authorize such
custodians to employ sub-custodians and to place all or any
part of such Trust Property with a custodian or a custodial
system meeting the requirements of the 1940 Act; (7) retain
a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, or any
number thereof or any other service provider as deemed
appropriate; (8) provide for the issuance and distribution
of shares of beneficial interest in the Trust or other
securities or financial instruments directly or through one
or more Principal Underwriters or otherwise; (9) retain one
or more Investment Adviser(s); (10) re-acquire and redeem
Shares on behalf of the Trust and transfer Shares pursuant
to applicable law; (11) set record dates for the
determination of Shareholders with respect to various
matters, in the manner provided in Article V, Section 4 of
this Declaration of Trust; (12) declare and pay dividends
and distributions to Shareholders from the Trust Property,
in accordance with this Declaration of Trust and the
By-Laws; (13) establish, designate and redesignate from time
to time, in accordance with the provisions of Article III,
Section 6 hereof, any Series or Class of the Trust or of a
Series; (14) hire personnel as staff for the Board of
Trustees or, for those Trustees who are not Interested
Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, set the compensation to be paid by
the Trust to such personnel, exercise exclusive supervision
of such personnel, and remove one or more of such personnel,
at the discretion of the Board of Trustees; (15) retain
special counsel, other experts and/or consultants for the
Board of Trustees, for those Trustees who are not Interested
Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, and/or for one or more of the
committees of the Board of Trustees, set the compensation to
be paid by the Trust to such special counsel, other experts
and/or consultants, and remove one or more of such special
counsel, other experts and/or consultants, at the discretion
of the Board of Trustees; (16) engage in and prosecute,
defend, compromise, abandon, or adjust, by arbitration, or
otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of the
assets of the Trust to pay or to satisfy any debts, claims
or expenses incurred in connection therewith, including
those of litigation, and such power shall include, without
limitation, the power of the Trustees, or any appropriate
committee thereof, in the exercise of their or its good
faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a shareholder in
its own name or in the name of the Trust, whether or not the
Trust or any of the Trustees may be named individually
therein or the subject matter arises by reason of business
for or on behalf of the Trust; and (17) in general delegate
such authority as it considers desirable to any Trustee or
officer of the Trust, to any committee of the Trust, to any
agent or employee of the Trust or to any custodian,
transfer, dividend disbursing, shareholder servicing agent,
Principal Underwriter, Investment Adviser, or other service
provider.
The powers of the Board of Trustees set forth in
this Section 3(a) are without prejudice to any other powers
of the Board of Trustees set forth in this Declaration of
Trust and the By-Laws. Any determination as to what is in
the best interests of the Trust or any Series or Class
thereof and its Shareholders made by the Board of Trustees
in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Board of
Trustees.
(b) OTHER BUSINESS INTERESTS. The Trustees shall
devote to the affairs of the Trust (including every Series
thereof) such time as may be necessary for the proper
performance of their duties hereunder, but neither the
Trustees nor the officers, directors, shareholders, partners
or employees of the Trustees, if any, shall be expected to
devote their full time to the performance of such duties.
The Trustees, or any Affiliate, shareholder, officer, director,
partner or employee thereof, or any Person owning a legal or
beneficial interest therein, may engage in, or possess an
interest in, any business or venture other than the Trust or
any Series thereof, of any nature and description, independently
or with or for the account of others. None of the Trust, any
Series thereof or any Shareholder shall have the right to
participate or share in such other business or venture or
any profit or compensation derived therefrom.
(c) QUORUM AND REQUIRED VOTE. At all meetings of the
Board of Trustees, a majority of the Board of Trustees then in
office shall be present in person in order to constitute a
quorum for the transaction of business. A meeting at which
a quorum is initially present may continue to transact
business notwithstanding the departure of Trustees from the
meeting, if any action taken is approved by at least a
majority of the required quorum for that meeting. Subject
to Article III, Sections 1 and 6 of the By-Laws and except
as otherwise provided herein or required by applicable law,
the vote of not less than a majority of the Trustees present
at a meeting at which a quorum is present shall be the act
of the Board of Trustees.
Section 4. PAYMENT OF EXPENSES BY THE TRUST. Subject
to the provisions of Article III, Section 6 hereof, an
authorized officer of the Trust shall pay or cause to be
paid out of the principal or income of the Trust or any
particular Series or Class thereof, or partly out of the
principal and partly out of the income of the Trust or any
particular Series or Class thereof, and charge or allocate
the same to, between or among such one or more of the Series
or Classes that may be established or designated pursuant to
Article III, Section 6 hereof, as such officer deems fair,
all expenses, fees, charges, taxes and liabilities incurred
by or arising in connection with the maintenance or
operation of the Trust or a particular Series or Class
thereof, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation
and such expenses, fees, charges, taxes and liabilities
associated with the services of the Trust's officers,
employees, Investment Adviser(s), Principal Underwriter,
auditors, counsel, custodian, sub-custodian, transfer agent,
dividend disbursing agent, shareholder servicing agent, and
such other agents or independent contractors and such other
expenses, fees, charges, taxes and liabilities as the Board
of Trustees may deem necessary or proper to incur.
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The
Board of Trustees shall have the power, as frequently as it
may determine, to cause any Shareholder to pay directly, in
advance or arrears, an amount fixed from time to time by the
Board of Trustees or an officer of the Trust for charges of
the Trust's custodian or transfer, dividend disbursing,
shareholder servicing or similar agent which are not
customarily charged generally to the Trust, a Series or a
Class, where such services are provided to such Shareholder
individually, rather than to all Shareholders collectively,
by setting off such amount due from such Shareholder from
the amount of (i) declared but unpaid dividends or
distributions owed such Shareholder, or (ii) proceeds from
the redemption by the Trust of Shares from such Shareholder
pursuant to Article VI hereof.
Section 6. OWNERSHIP OF TRUST PROPERTY. Legal title to
all of the Trust Property shall at all times be vested in
the Trust, except that the Board of Trustees shall have the
power to cause legal title to any Trust Property to be held
by or in the name of any Person as nominee, on such terms as
the Board of Trustees may determine, in accordance with
applicable law.
Section 7. SERVICE CONTRACTS.
(a) Subject to this Declaration of Trust, the
By-Laws and the 1940 Act, the Board of Trustees may, at any
time and from time to time, contract for exclusive or nonexclusive
investment advisory or investment management services for the
Trust or for any Series thereof with any corporation, trust,
association or other organization, including any Affiliate; and
any such contract may contain such other terms as the Board of
Trustees may determine, including without limitation, delegation
of authority to the Investment Adviser to determine from time to
time without prior consultation with the Board of Trustees what
securities and other instruments or property shall be purchased
or otherwise acquired, owned, held, invested or reinvested in,
sold, exchanged, transferred, mortgaged, pledged, assigned,
negotiated, or otherwise dealt with or disposed of, and what
portion, if any, of the Trust Property shall be held uninvested
and to make changes in the Trust's or a particular Series'
investments, or to engage in such other activities, including
administrative services, as may specifically be delegated to
such party.
(b) The Board of Trustees may also, at any time and
from time to time, contract with any Person, including any
Affiliate, appointing it or them as the exclusive or
nonexclusive placement agent, distributor or Principal
Underwriter for the Shares of beneficial interest of the
Trust or one or more of the Series or Classes thereof, or
for other securities or financial instruments to be issued
by the Trust, or appointing it or them to act as the
administrator, fund accountant or accounting agent,
custodian, transfer agent, dividend disbursing agent and/or
shareholder servicing agent for the Trust or one or more of
the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at
any time and from time to time, to contract with any Persons,
including any Affiliates, to provide such other services to
the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the
Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances
shall affect the validity of any of the contracts provided for
in this Article IV, Section 7, or disqualify any Shareholder,
Trustee, employee or officer of the Trust from voting upon
or executing the same, or create any liability or
accountability to the Trust, any Series thereof or the
Shareholders, provided that the establishment of and
performance of each such contract is permissible under the
1940 Act, and provided further that such Person is
authorized to vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director,
officer, partner, trustee, employee, manager, Adviser,
placement agent, Principal Underwriter, distributor, or
Affiliate or agent of or for any Person, or for any parent
or Affiliate of any Person, with which any type of service
contract provided for in this Article IV, Section 7 may have
been or may hereafter be made, or that any such Person, or
any parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or
(ii) the fact that any Person with which any type of service
contract provided for in this Article IV, Section 7 may have
been or may hereafter be made also has such a service
contract with one or more other Persons, or has other
business or interests.
(e) Every contract referred to in this Section 7 is
required to comply with this Declaration of Trust, the By-Laws, the
1940 Act, other applicable law and any stipulation by resolution of
the Board of Trustees.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. Subject to the provisions
of Article III, Section 6 hereof, the Shareholders shall have
the power to vote only (i) on such matters required by this
Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust
filed with the Commission, the registration of which is
effective; and (ii) on such other matters as the Board of
Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the
record date established pursuant to Section 4 of this
Article V) of each Share shall be entitled to one vote for
each full Share, and a fractional vote for each fractional
Share. Shareholders shall not be entitled to cumulative
voting in the election of Trustees or on any other matter.
Section 2. QUORUM AND REQUIRED VOTE.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are present
in person or represented by proxy, shall constitute a quorum at
the Shareholders' meeting, except when a larger quorum is
required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities
exchange on which Shares are listed for trading, in which
case such quorum shall comply with such requirements. When
a separate vote by one or more Series or Classes is
required, forty percent (40%) of the outstanding Shares of
each such Series or Class entitled to vote at a
Shareholders' meeting of such Series or Class, which are
present in person or represented by proxy, shall constitute
a quorum at the Shareholders' meeting of such Series or
Class, except when a larger quorum is required by this
Declaration of Trust, the By-Laws, applicable law or the
requirements of any securities exchange on which Shares of
such Series or Class are listed for trading, in which case
such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III, Section
6(d), when a quorum is present at any meeting, a majority of the
votes cast shall decide any questions and a plurality shall
elect a Trustee, except when a larger vote is required by
any provision of this Declaration of Trust or the By-Laws or
by applicable law. Pursuant to Article III, Section 6(d)
hereof, where a separate vote by Series and, if applicable,
by Class is required, the preceding sentence shall apply to
such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated
as votes present at a Shareholders' meeting; abstentions and
broker non-votes will not be treated as votes cast at such
meeting. Abstentions and broker non-votes, therefore (i)
will be included for purposes of determining whether a
quorum is present; and (ii) will have no effect on proposals
that require a plurality for approval, or on proposals
requiring an affirmative vote of a majority of votes cast
for approval.
Section 3. SHAREHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING. Any action which may be taken at any meeting
of Shareholders may be taken without a meeting if a consent or
consents in writing setting forth the action so taken is or
are signed by the holders of a majority of the Shares
entitled to vote on such action (or such different
proportion thereof as shall be required by law, the
Declaration of Trust or the By-Laws for approval of such
action) and is or are received by the secretary of the Trust
either: (i) by the date set by resolution of the Board of
Trustees for the shareholder vote on such action; or (ii) if
no date is set by resolution of the Board, within 30 days
after the record date for such action as determined by
reference to Article V, Section 4(b) hereof. The written
consent for any such action may be executed in one or more
counterparts, each of which shall be deemed an original, and
all of which when taken together shall constitute one and
the same instrument. A consent transmitted by electronic
transmission (as defined in the DSTA) by a Shareholder or by
a Person or Persons authorized to act for a Shareholder
shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the
Trust's records. Any Shareholder that has given a written
consent or the Shareholder's proxyholder or a personal
representative of the Shareholder or its respective
proxyholder may revoke the consent by a writing received by
the secretary of the Trust either: (i) before the date set
by resolution of the Board of Trustees for the shareholder
vote on such action; or (ii) if no date is set by resolution
of the Board, within 30 days after the record date for such
action as determined by reference to Article V, Section 4(b)
hereof.
Section 4. RECORD DATES.
(a) For purposes of determining the Shareholders
entitled to notice of, and to vote at, any meeting of
Shareholders, the Board of Trustees may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than one
hundred and twenty (120) days nor less than ten (10) days
before the date of any such meeting. A determination of
Shareholders of record entitled to notice of or to vote at a
meeting of Shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Trustees may fix
a new record date for the adjourned meeting and shall fix a
new record date for any meeting that is adjourned for more than
sixty (60) days from the date set for the original meeting.
For purposes of determining the Shareholders entitled to
vote on any action without a meeting, the Board of Trustees
may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is
adopted by the Board of Trustees, and which record date
shall not be more than thirty (30) days after the date upon
which the resolution fixing the record date is adopted by
the Board of Trustees.
(b) If the Board of Trustees does not so fix a
record date:
(i) the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall
be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the
close of business on the day next preceding the day on which
the meeting is held.
(ii) the record date for determining Shareholders entitled to
vote on any action by consent in writing without a meeting
of Shareholders, (1) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first
signed written consent setting forth the action taken is
delivered to the Trust, or (2) when prior action of the
Board of Trustees has been taken, shall be at the close of
business on the day on which the Board of Trustees adopts
the resolution taking such prior action.
(c) For the purpose of determining the Shareholders
of the Trust or any Series or Class thereof who are entitled to
receive payment of any dividend or of any other distribution of
assets of the Trust or any Series or Class thereof (other than
in connection with a dissolution of the Trust or a Series, a
merger, consolidation, conversion, reorganization, or any other
transactions, in each case that is governed by Article VIII of
the Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which record date shall
not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be
more than sixty (60) days before the date for the payment of
such dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates and related
payment dates at periodic intervals of any duration for the
payment of such dividend and/or such other distribution;
and/or
(iii) delegate to an appropriate officer or officers of the Trust
the determination of such periodic record and/or payments
dates with respect to such dividend and/or such other
distribution.
Nothing in this Section shall be construed as precluding the
Board of Trustees from setting different record dates for
different Series or Classes.
Section 5. ADDITIONAL PROVISIONS. The By-Laws may
include further provisions for Shareholders' votes, meetings
and related matters.
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME
AND DISTRIBUTIONS.
(a) Subject to Article III, Section 6 hereof, the
Board of Trustees shall have the power to determine from time
to time the offering price for authorized, but unissued, Shares
of beneficial interest of the Trust or any Series or Class
thereof, respectively, that shall yield to the Trust or such
Series or Class not less than the net asset value thereof,
in addition to any amount of applicable sales charge to be
paid to the Principal Underwriter or the selling broker or
dealer in connection with the sale of such Shares, at which
price the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any
other requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the
Board of Trustees may, subject to the 1940 Act, prescribe and
shall set forth in the By-Laws, this Declaration of Trust or
in a resolution of the Board of Trustees such bases and time
for determining the net asset value per Share of the Trust or
any Series or Class thereof, or net income attributable to
the Shares of the Trust or any Series or Class thereof or
the declaration and payment of dividends and distributions
on the Shares of the Trust or any Series or Class thereof,
as it may deem necessary or desirable, and such dividends
and distributions may vary between the Classes to reflect
differing allocations of the expenses of the Trust between
such Classes to such extent and for such purposes as the
Trustees may deem appropriate.
(c) The Shareholders of the Trust or any Series or
Class, if any, shall be entitled to receive dividends and
distributions, when, if and as declared by the Board of
Trustees with respect thereto, provided that with respect to
Classes, such dividends and distributions shall comply with
the 1940 Act. The right of Shareholders to receive
dividends or other distributions on Shares of any Class may
be set forth in a plan adopted by the Board of Trustees and
amended from time to time pursuant to the 1940 Act. No
Share shall have any priority or preference over any other
Share of the Trust with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to
Article VIII, Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into Series thereof,
no Share of a particular Series shall have any priority or
preference over any other Share of the same Series with
respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of the
Trust or of such Series made pursuant to Article VIII,
Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes thereof,
no Share of a particular Class shall have any priority or
preference over any other Share of the same Class with
respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of the
Trust made pursuant to Article VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes thereof,
no Share of a particular Class of such Series shall have any
priority or preference over any other Share of the same
Class of such Series with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of such Series made pursuant
to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among
all Shareholders of the Trust, a particular Class of the
Trust, a particular Series, or a particular Class of a
Series from the Trust Property held with respect to the
Trust, such Series or such Class, respectively, according to
the number of Shares of the Trust, such Series or such Class
held of record by such Shareholders on the record date for
any dividend or distribution; provided however, that
(iv) if the Shares of the Trust are divided into Series thereof,
all dividends and distributions from the Trust Property and,
if applicable, held with respect to such Series, shall be
distributed to each Series thereof according to the net
asset value computed for such Series and within such
particular Series, shall be distributed ratably to the
Shareholders of such Series according to the number of
Shares of such Series held of record by such Shareholders on
the record date for any dividend or distribution; and
(v) if the Shares of the Trust or of a Series are divided into
Classes thereof, all dividends and distributions from the
Trust Property and, if applicable, held with respect to the
Trust or such Series, shall be distributed to each Class
thereof according to the net asset value computed for such
Class and within such particular Class, shall be distributed
ratably to the Shareholders of such Class according to the
number of Shares of such Class held of record by such
Shareholders on the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or
in Shares.
(d) Before payment of any dividend there may be set aside
out of any funds of the Trust, or the applicable Series thereof,
available for dividends such sum or sums as the Board of Trustees
may from time to time, in its absolute discretion, think proper as
a reserve fund to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Trust, or any
Series thereof, or for such other lawful purpose as the Board of
Trustees shall deem to be in the best interests of the Trust, or
the applicable Series, as the case may be, and the Board of Trustees
may abolish any such reserve in the manner in which the reserve was
created.
Section 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER.
Unless otherwise provided in the prospectus of the Trust
relating to the Shares, as such prospectus may be amended
from time to time:
(a) The Trust shall purchase such Shares as are offered
by any Shareholder for redemption upon the presentation of a
proper instrument of transfer together with a request directed to
the Trust or a Person designated by the Trust that the Trust
purchase such Shares and/or in accordance with such other
procedures for redemption as the Board of Trustees may from time
to time authorize. If certificates have been issued to a
Shareholder, any request for redemption by such Shareholder must
be accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock
transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset
value thereof (excluding any applicable redemption fee or sales
load), in accordance with this Declaration of Trust, the By-Laws,
the 1940 Act and other applicable law. Payments for Shares so
redeemed by the Trust shall be made in cash, except payment for
such Shares may, at the option of the Board of Trustees, or such
officer or officers as it may duly authorize in its complete
discretion, be made in kind or partially in cash and partially
in kind. In case of any payment in kind, the Board of Trustees,
or its authorized officers, shall have absolute discretion as to
what security or securities of the Trust or the applicable Series
shall be distributed in kind and the amount of the same; and the
securities shall be valued for purposes of distribution at
the value at which they were appraised in computing the then
current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so
distributed in kind shall receive cash to the extent
permitted by the 1940 Act. Shareholders shall bear the
expenses of in-kind transactions, including, but not limited
to, transfer agency fees, custodian fees and costs of
disposition of such securities.
(c) Payment by the Trust for such redemption of Shares
shall be made by the Trust to the Shareholder within seven days
after the date on which the redemption request is received in
proper form and/or such other procedures authorized by the Board
of Trustees are complied with; provided, however, that if payment
shall be made other than exclusively in cash, any securities to
be delivered as part of such payment shall be delivered as promptly
as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur
within such seven-day period. In no case shall the Trust be
liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part
of any payment in kind.
(d) The obligations of the Trust set forth in this
Section 2 are subject to the provision that such obligations
may be suspended or postponed by the Board of Trustees
(1) during any time the New York Stock Exchange (the "Exchange")
is closed for other than weekends or holidays; (2) if permitted
by the rules of the Commission, during periods when trading
on the Exchange is restricted; or (3) during any National
Financial Emergency. The Board of Trustees may, in its
discretion, declare that the suspension relating to a
National Financial Emergency shall terminate, as the case
may be, on the first business day on which the Exchange
shall have reopened or the period specified above shall have
expired (as to which, in the absence of an official ruling
by the Commission, the determination of the Board of
Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any
Series or Class thereof to receive dividends or other distributions
on Shares redeemed and all other rights of such Shareholder
with respect to the Shares so redeemed, except the right of
such Shareholder to receive payment for such Shares, shall
cease at the time the purchase price of such Shares shall
have been fixed, as provided above.
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. At
the option of the Board of Trustees the Trust may, from time to
time, without the vote of the Shareholders, but subject to the
1940 Act, redeem Shares or authorize the closing of any Shareholder
account, subject to such conditions as may be established from time
to time by the Board of Trustees.
Section 4. TRANSFER OF SHARES. Shares shall be
transferable in accordance with the provisions of the
By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. LIMITATION OF LIABILITY.
(a) For the purpose of this Article, "Agent" means
any Person who is or was a Trustee, officer, employee or other
agent of the Trust or is or was serving at the request of
the Trust as a trustee, director, officer, employee or other
agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise; "Proceeding" means
any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative; and
"Expenses" include without limitation attorneys' fees and any
expenses of establishing a right to indemnification under this
Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good
faith and fair dealing, for such Agent's own willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying
Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and
to the fullest extent that limitations on the liability of Agents
are permitted by the DSTA, the Agents shall not be responsible
or liable in any event for any act or omission of any other
Agent of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as
such, shall be personally liable to any Person, other than the
Trust or a Shareholder to the extent provided in subsections
(b) and (c) of this Section 1, for any act, omission or
obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust
shall, in the performance of his or her duties, be fully and
completely justified and protected with regard to any act or
any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust,
upon an opinion of counsel, or upon reports made to the
Trust by any of its officers or employees or by the
Investment Adviser, the Principal Underwriter, any other
Agent, selected dealers, accountants, appraisers or other
experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of
whether such counsel or expert may also be a Trustee. The
officers and Trustees may obtain the advice of counsel or
other experts with respect to the meaning and operation of
this Declaration of Trust, the By-Laws, applicable law and
their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission
in accordance with such advice, records and/or reports and
no inference concerning liability shall arise from a failure
to follow such advice, records and/or reports. The officers
and Trustees shall not be required to give any bond
hereunder, nor any surety if a bond is required by
applicable law.
(f) The failure to make timely collection of
dividends or interest, or to take timely action with respect
to entitlements, on the Trust's securities issued in emerging
countries, shall not be deemed to be negligence or other
fault on the part of any Agent, and no Agent shall have any
liability for such failure or for any loss or damage
resulting from the imposition by any government of exchange
control restrictions which might affect the liquidity of the
Trust's assets or from any war or political act of any
foreign government to which such assets might be exposed,
except, in the case of a Trustee or officer, for liability
resulting from such Trustee's or officer's Disqualifying
Conduct.
(g) The limitation on liability contained in this
Article applies to events occurring at the time a Person serves
as an Agent whether or not such Person is an Agent at the time
of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall
adversely affect any right or protection of an Agent that exists
at the time of such amendment or repeal.
Section 2. INDEMNIFICATION.
(a) INDEMNIFICATION BY TRUST. The Trust shall indemnify,
out of Trust Property, to the fullest extent permitted under
applicable law, any Person who was or is a party or is threatened
to be made a party to any Proceeding by reason of the fact that
such Person is or was an Agent of the Trust, against Expenses,
judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such
Person acted in good faith or in the case of a criminal proceeding,
had no reasonable cause to believe the conduct of such Person was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or plea of nolo contendere or its equivalent
shall not of itself create a presumption that the Person did not
act in good faith or that the Person had reasonable cause to
believe that the Person's conduct was unlawful.
(b) EXCLUSION OF INDEMNIFICATION. Notwithstanding any
provision to the contrary contained herein, there shall be no
right to indemnification for any liability arising by reason of
the Agent's Disqualifying Conduct. In respect of any claim, issue
or matter as to which that Person shall have been adjudged to be
liable in the performance of that Person's duty to the Trust or the
Shareholders, indemnification shall be made only to the extent that
the court in which that action was brought shall determine, upon
application or otherwise, that in view of all the circumstances
of the case, that Person was not liable by reason of that Person's
Disqualifying Conduct.
(c) REQUIRED APPROVAL. Any indemnification under this
Article shall be made by the Trust if authorized in the specific
case on a determination that indemnification of the Agent is
proper in the circumstances by (i) a final decision on the
merits by a court or other body before whom the proceeding was
brought that the Agent was not liable by reason of Disqualifying
Conduct (including, but not limited to, dismissal of either a
court action or an administrative proceeding against the Agent
for insufficiency of evidence of any Disqualifying Conduct) or,
(ii) in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the Agent was not liable
by reason of Disqualifying Conduct, by (1) the vote of a majority
of a quorum of the Trustees who are not (x) "interested persons"
of the Trust as defined in Section 2(a)(19) of the 1940 Act,
(y) parties to the proceeding, or (z) parties who have any
economic or other interest in connection with such specific
case (the "disinterested, non-party Trustees"); or (2) by
independent legal counsel in a written opinion.
(d) ADVANCEMENT OF EXPENSES. Expenses incurred by an
Agent in defending any Proceeding may be advanced by the Trust
before the final disposition of the Proceeding on receipt of
an undertaking by or on behalf of the Agent to repay the
amount of the advance if it shall be determined ultimately
that the Agent is not entitled to be indemnified as
authorized in this Article; provided, that at least one of
the following conditions for the advancement of expenses is
met: (i) the Agent shall provide a security for his
undertaking, (ii) the Trust shall be insured against losses
arising by reason of any lawful advances, or (iii) a
majority of a quorum of the disinterested, non-party
Trustees of the Trust, or an independent legal counsel in a
written opinion, shall determine, based on a review of
readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Agent
ultimately will be found entitled to indemnification.
(e) OTHER CONTRACTUAL RIGHTS. Nothing contained in
this Article shall affect any right to indemnification to which
Persons other than Trustees and officers of the Trust or any
subsidiary thereof may be entitled by contract or otherwise.
(f) FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This
Article does not apply to any Proceeding against any trustee,
investment manager or other fiduciary of an employee benefit
plan in that Person's capacity as such, even though that
Person may also be an Agent of the Trust as defined in
Section 1 of this Article. Nothing contained in this
Article shall limit any right to indemnification to which
such a trustee, investment manager, or other fiduciary may
be entitled by contract or otherwise which shall be
enforceable to the extent permitted by applicable law other
than this Article.
Section 3. INSURANCE. To the fullest extent permitted
by applicable law, the Board of Trustees shall have the
authority to purchase with Trust Property, insurance for
liability and for all Expenses reasonably incurred or paid
or expected to be paid by an Agent in connection with any
Proceeding in which such Agent becomes involved by virtue of
such Agent's actions, or omissions to act, in its capacity
or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such
liability.
Section 4. DERIVATIVE ACTIONS. Subject to the
requirements set forth in Section 3816 of the DSTA, a
Shareholder or Shareholders may bring a derivative action on
behalf of the Trust only if the Shareholder or Shareholders
first make a pre-suit demand upon the Board of Trustees to
bring the subject action unless an effort to cause the Board
of Trustees to bring such action is excused. A demand on
the Board of Trustees shall only be excused if a majority of
the Board of Trustees, or a majority of any committee
established to consider the merits of such action, has a
material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material
personal financial interest in an action or otherwise be
disqualified from ruling on a Shareholder demand by virtue
of the fact that such Trustee receives remuneration from his
or her service on the Board of Trustees of the Trust or on
the boards of one or more investment companies with the same
or an affiliated investment adviser or underwriter.
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. DISSOLUTION OF TRUST OR SERIES. The
Trust and each Series shall have perpetual existence, except that
the Trust (or a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of
the holders of not less than a majority of the Shares of the
Trust cast, or (ii) at the discretion of the Board of Trustees
either (A) at any time there are no Shares outstanding of the
Trust, or (B) upon prior written notice to the Shareholders of
the Trust; or
(b) With respect to a particular Series, (i) upon the
vote of the holders of not less than a majority of the Shares of
such Series cast, or (ii) at the discretion of the Board of
Trustees either (A) at any time there are no Shares
outstanding of such Series, or (B) upon prior written notice
to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series),
upon the occurrence of a dissolution or termination event
pursuant to any other provision of this Declaration of Trust
(including Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that
causes the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series,
as the case may be), the Board of Trustees shall (in
accordance with Section 3808 of the DSTA) pay or make
reasonable provision to pay all claims and obligations of
the Trust and/or each Series (or the particular Series, as
the case may be), including all contingent, conditional or
unmatured claims and obligations known to the Trust, and all
claims and obligations which are known to the Trust, but for
which the identity of the claimant is unknown. If there are
sufficient assets held with respect to the Trust and/or each
Series of the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid in full
and any such provisions for payment shall be made in full.
If there are insufficient assets held with respect to the
Trust and/or each Series of the Trust (or the particular
Series, as the case may be), such claims and obligations
shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably
to the extent of assets available therefor. Any remaining
assets (including, without limitation, cash, securities or
any combination thereof) held with respect to the Trust
and/or each Series of the Trust (or the particular Series,
as the case may be) shall be distributed to the Shareholders
of the Trust and/or each Series of the Trust (or the
particular Series, as the case may be) ratably according to
the number of Shares of the Trust and/or such Series thereof
(or the particular Series, as the case may be) held of
record by the several Shareholders on the date for such
dissolution distribution; provided, however, that if the
Shares of the Trust or a Series are divided into Classes
thereof, any remaining assets (including, without
limitation, cash, securities or any combination thereof)
held with respect to the Trust or such Series, as
applicable, shall be distributed to each Class of the Trust
or such Series according to the net asset value computed for
such Class and within such particular Class, shall be
distributed ratably to the Shareholders of such Class
according to the number of Shares of such Class held of
record by the several Shareholders on the date for such
dissolution distribution. Upon the winding up of the Trust
in accordance with Section 3808 of the DSTA and its
termination, any one (1) Trustee shall execute, and cause to
be filed, a certificate of cancellation, with the office of
the Secretary of State of the State of Delaware in
accordance with the provisions of Section 3810 of the DSTA.
Section 2. MERGER OR CONSOLIDATION; CONVERSION;
REORGANIZATION.
(a) MERGER OR CONSOLIDATION. Pursuant to an agreement
of merger or consolidation, the Board of Trustees, by vote of
a majority of the Trustees, may cause the Trust to merge or
consolidate with or into one or more statutory trusts or
"other business entities" (as defined in Section 3801 of the
DSTA) formed or organized or existing under the laws of the
State of Delaware or any other state of the United States or
any foreign country or other foreign jurisdiction. Any such
merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the
Shareholders of such merger or consolidation. By reference
to Section 3815(f) of the DSTA, any agreement of merger or
consolidation approved in accordance with this Section 2(a)
may, without a Shareholder vote, unless required by the 1940
Act, the requirements of any securities exchange on which
Shares are listed for trading or any other provision of this
Declaration of Trust or the By-Laws, effect any amendment to
this Declaration of Trust or the By-Laws or effect the
adoption of a new governing instrument if the Trust is the
surviving or resulting statutory trust in the merger or
consolidation, which amendment or new governing instrument
shall be effective at the effective time or date of the
merger or consolidation. In all respects not governed by
the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are
listed for trading, the Board of Trustees shall have the
power to prescribe additional procedures necessary or
appropriate to accomplish a merger or consolidation,
including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to
provide for the conversion of Shares into beneficial
interests in such separate statutory trust or trusts. Upon
completion of the merger or consolidation, if the Trust is
the surviving or resulting statutory trust, any one (1)
Trustee shall execute, and cause to be filed, a certificate
of merger or consolidation in accordance with Section 3815
of the DSTA.
(b) CONVERSION. The Board of Trustees, by vote of a
majority of the Trustees, may cause (i) the Trust to convert
to an "other business entity" (as defined in Section 3801 of
the DSTA) formed or organized under the laws of the State of
Delaware as permitted pursuant to Section 3821 of the DSTA;
(ii) the Shares of the Trust or any Series to be converted
into beneficial interests in another statutory trust (or
series thereof) created pursuant to this Section 2 of this
Article VIII, or (iii) the Shares to be exchanged under or
pursuant to any state or federal statute to the extent
permitted by law. Any such statutory conversion, Share
conversion or Share exchange shall not require the vote of
the Shareholders unless such vote is required by the 1940
Act; provided however, that the Board of Trustees shall
provide at least thirty (30) days' prior written notice to
the Shareholders of the Trust of any conversion of Shares of
the Trust pursuant to Subsections (b)(i) or (b)(ii) of this
Section 2 or exchange of Shares of the Trust pursuant to
Subsection (b)(iii) of this Section 2, and at least thirty
(30) days' prior written notice to the Shareholders of a
particular Series of any conversion of Shares of such Series
pursuant to Subsection (b)(ii) of this Section 2 or exchange
of Shares of such Series pursuant to Subsection (b)(iii) of
this Section 2. In all respects not governed by the DSTA,
the 1940 Act, other applicable law or the requirements of
any securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to
accomplish a statutory conversion, Share conversion or Share
exchange, including the power to create one or more separate
statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of
the Trust or any Series thereof into beneficial interests in
such separate statutory trust or trusts (or series thereof).
(c) REORGANIZATION. The Board of Trustees, by vote
of a majority of the Trustees, may cause the Trust to sell,
convey and transfer all or substantially all of the assets
of the Trust ("sale of Trust assets") or all or
substantially all of the assets associated with any one or
more Series ("sale of such Series' assets"), to another
trust, statutory trust, partnership, limited partnership,
limited liability company, corporation or other association
organized under the laws of any state, or to one or more
separate series thereof, or to the Trust to be held as
assets associated with one or more other Series of the
Trust, in exchange for cash, shares or other securities
(including, without limitation, in the case of a transfer to
another Series of the Trust, Shares of such other Series)
with such sale, conveyance and transfer either (a) being
made subject to, or with the assumption by the transferee
of, the liabilities associated with the Trust or the
liabilities associated with the Series the assets of which
are so transferred, as applicable, or (b) not being made
subject to, or not with the assumption of, such
liabilities. Any such sale, conveyance and transfer shall
not require the vote of the Shareholders unless such vote is
required by the 1940 Act; provided however, that the Board
of Trustees shall provide at least thirty (30) days' prior
written notice to the Shareholders of the Trust of any such
sale of Trust assets, and at least thirty (30) days prior
written notice to the Shareholders of a particular Series of
any sale of such Series' assets. Following such sale of
Trust assets, the Board of Trustees shall distribute such
cash, shares or other securities ratably among the
Shareholders of the Trust (giving due effect to the assets
and liabilities associated with and any other differences
among the various Series the assets associated with which
have been so sold, conveyed and transferred, and due effect
to the differences among the various Classes within each
such Series). Following a sale of such Series' assets, the
Board of Trustees shall distribute such cash, shares or
other securities ratably among the Shareholders of such
Series (giving due effect to the differences among the
various Classes within each such Series). If all of the
assets of the Trust have been so sold, conveyed and
transferred, the Trust shall be dissolved; and if all of the
assets of a Series have been so sold, conveyed and
transferred, such Series and the Classes thereof shall be
dissolved. In all respects not governed by the DSTA, the
1940 Act or other applicable law, the Board of Trustees
shall have the power to prescribe additional procedures
necessary or appropriate to accomplish such sale, conveyance
and transfer, including the power to create one or more
separate statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares into
beneficial interests in such separate statutory trust or
trusts.
Section 3. MASTER FEEDER STRUCTURE. If permitted by
the 1940 Act, the Board of Trustees, by vote of a majority of
the Trustees, and without a Shareholder vote, may cause the
Trust or any one or more Series to convert to a master
feeder structure (a structure in which a feeder fund invests
all of its assets in a master fund, rather than making
investments in securities directly) and thereby cause
existing Series of the Trust to either become feeders in a
master fund, or to become master funds in which other funds
are feeders.
Section 4. ABSENCE OF APPRAISAL OR DISSENTERS' RIGHTS.
No Shareholder shall be entitled, as a matter of right, to
relief as a dissenting Shareholder in respect of any
proposal or action involving the Trust or any Series or any
Class thereof.
ARTICLE IX.
AMENDMENTS
Section 1. AMENDMENTS GENERALLY. This Declaration
of Trust may be restated and/or amended at any time by an
instrument in writing signed by not less than a majority of
the Board of Trustees and, to the extent required by this
Declaration of Trust, the 1940 Act or the requirements of
any securities exchange on which Shares are listed for
trading, by approval of such amendment by the Shareholders
in accordance with Article III, Section 6 hereof and Article
V hereof. Any such restatement and/or amendment hereto
shall be effective immediately upon execution and approval
or upon such future date and time as may be stated therein.
The Certificate of Trust shall be restated and/or amended at
any time by the Board of Trustees, without Shareholder
approval, to correct any inaccuracy contained therein. Any
such restatement and/or amendment of the Certificate of
Trust shall be executed by at least one (1) Trustee and
shall be effective immediately upon its filing with the
office of the Secretary of State of the State of Delaware or
upon such future date as may be stated therein.
ARTICLE X.
MISCELLANEOUS
Section 1. REFERENCES; HEADINGS; COUNTERPARTS. In
this Declaration of Trust and in any restatement hereof and/or
amendment hereto, references to this instrument, and all
expressions of similar effect to "herein," "hereof" and
"hereunder," shall be deemed to refer to this instrument as
so restated and/or amended. Headings are placed herein for
convenience of reference only and shall not be taken as a
part hereof or control or affect the meaning, construction
or effect of this instrument. Whenever the singular number
is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each
other, as applicable. Any references herein to specific
sections of the DSTA, the Code or the 1940 Act shall refer
to such sections as amended from time to time or any
successor sections thereof. This instrument may be executed
in any number of counterparts, each of which shall be deemed
an original.
Section 2. APPLICABLE LAW. This Declaration of Trust
is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware
and the applicable provisions of the 1940 Act and the Code.
The Trust shall be a Delaware statutory trust pursuant to
the DSTA, and without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised
by such a statutory trust.
Section 3. PROVISIONS IN CONFLICT WITH LAW OR
REGULATIONS.
(a) The provisions of this Declaration of Trust
are severable, and if the Board of Trustees shall determine,
with the advice of counsel, that any of such provisions is
in conflict with the 1940 Act, the Code, the DSTA, or with
other applicable laws and regulations, the conflicting
provision shall be deemed not to have constituted a part of
this Declaration of Trust from the time when such provisions
became inconsistent with such laws or regulations; provided,
however, that such determination shall not affect any of the
remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration of Trust
shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other
provision of this Declaration of Trust in any jurisdiction.
Section 4. STATUTORY TRUST ONLY. It is the intention
of the Trustees to create hereby a statutory trust pursuant to
the DSTA, and thereby to create the relationship of trustee
and beneficial owners within the meaning of the DSTA
between, respectively, the Trustees and each Shareholder.
It is not the intention of the Trustees to create a general
or limited partnership, limited liability company, joint
stock association, corporation, bailment, or any form of
legal relationship other than a statutory trust pursuant to
the DSTA. Nothing in this Declaration of Trust shall be
construed to make the Shareholders, either by themselves or
with the Trustees, partners or members of a joint stock
association.
Section 5. USE OF THE NAMES "FRANKLIN," "XXXXXXXXX,"
"FIDUCIARY TRUST," AND/OR "INSTITUTIONAL FIDUCIARY TRUST".
The Board of Trustees expressly agrees and acknowledges that
the names "Franklin," "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
nonexclusive license may be revoked by FRI and the Trust
shall cease using the names "Franklin," "Xxxxxxxxx,"
"Fiduciary Trust," "Institutional Fiduciary Trust" or any
name misleadingly implying a continuing relationship between
the Trust and FRI or any of its Affiliates, as part of its
name unless otherwise consented to by FRI or any successor
to its interests in such names.
The Board of Trustees further understands and agrees
that so long as FRI and/or any future advisory Affiliate of
FRI shall continue to serve as the Trust's Investment
Adviser, other registered open- or closed-end investment
companies ("funds") as may be sponsored or advised by FRI or
its Affiliates shall have the right permanently to adopt and
to use the names "Franklin", "Xxxxxxxxx," "Fiduciary Trust"
and/or "Institutional Fiduciary Trust" in their names and in
the names of any series or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of Franklin Gold and
Precious Metals Fund named below do hereby make and enter
into this Agreement and Declaration of Trust as of the date
first written above.
/s/ XXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxx, Trustee Xxxxxx X. Xxxxxxx, Trustee
/s/ XXX XXXX /s/ XXXXX X. HOLIDAY
Xxx X. Xxxx, Trustee Xxxxx X. Holiday, Trustee
/s/ XXXXX X.X. XXXXXX /s/ XXXXX X. XXXXX
Xxxxx X. X. XxXxxx, Trustee Xxxxx X. Xxxxx, Trustee
/s/ XXXXX X. XXXXXXXX /s/ XXXX X. XXXXXX
Xxxxx X. Xxxxxxxx, Trustee Xxxx X. Xxxxxx, Trustee
/s/ XXXXXXX X. XXXXXXX /s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx, Trustee Xxxxxxx X. Xxxxxxx, Trustee
