AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXXX GLOBAL SMALLER COMPANIES FUND
A DELAWARE STATUTORY TRUST
TABLE OF CONTENTS
PAGE
ARTICLE I. NAME; OFFICES; REGISTERED AGENT; DEFINITIONS................1
SECTION 1. NAME........................................................1
SECTION 2. OFFICES OF THE TRUST........................................1
SECTION 3. REGISTERED AGENT AND REGISTERED OFFICE......................1
SECTION 4. DEFINITIONS.................................................1
ARTICLE II. PURPOSE OF TRUST............................................3
ARTICLE III. SHARES......................................................6
SECTION 1. DIVISION OF BENEFICIAL INTEREST.............................6
SECTION 2. OWNERSHIP OF SHARES.........................................7
SECTION 3. SALE OF SHARES..............................................8
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.......8
SECTION 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS ELECTION......8
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES.........8
(a) Assets Held with Respect to a Particular Series.........9
(b) Liabilities Held with Respect to a Particular Series
or Class...............................................10
(c) Dividends, Distributions and Redemptions...............11
(d) Voting.................................................11
(e) Equality...............................................11
(f) Fractions..............................................11
(g) Exchange Privilege.....................................11
(h) Combination of Series..................................11
(i) Dissolution or Termination.............................11
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS............................12
ARTICLE IV. THE BOARD OF TRUSTEES......................................12
SECTION 1. NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION............12
SECTION 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT A MEETING........13
SECTION 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM AND REQUIRED VOTE.13
(a) Powers.................................................13
(b) Other Business Interests...............................14
(c) Quorum and Required Vote...............................14
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST...........................14
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS........................15
SECTION 6. OWNERSHIP OF TRUST PROPERTY................................15
SECTION 7. SERVICE CONTRACTS..........................................15
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS...................16
SECTION 1. VOTING POWERS..............................................16
SECTION 2. QUORUM AND REQUIRED VOTE...................................17
SECTION 3. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING....17
SECTION 4. RECORD DATES...............................................18
SECTION 5. ADDITIONAL PROVISIONS......................................18
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS.....19
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS..............................................19
SECTION 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER.................20
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST.....................21
SECTION 4. TRANSFER OF SHARES.........................................21
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT.......21
SECTION 1. LIMITATION OF LIABILITY....................................21
SECTION 2. INDEMNIFICATION............................................22
(a) Indemnification by Trust...............................22
(b) Exclusion of Indemnification...........................22
(c) Required Approval......................................23
(d) Advancement of Expenses................................23
(e) Other Contractual Rights...............................23
(f) Fiduciaries of Employee Benefit Plan...................23
SECTION 3. INSURANCE..................................................23
SECTION 4. DERIVATIVE ACTIONS.........................................23
ARTICLE VIII. CERTAIN TRANSACTIONS.......................................24
SECTION 1. DISSOLUTION OF TRUST OR SERIES.............................24
SECTION 2. MERGER OR CONSOLIDATION; CONVERSION; REORGANIZATION........25
(a) Merger or Consolidation................................25
(b) Conversion.............................................25
(c) Reorganization.........................................26
SECTION 3. MASTER FEEDER STRUCTURE....................................26
ARTICLE IX. AMENDMENTS.................................................27
SECTION 1. AMENDMENTS GENERALLY.......................................27
ARTICLE X. MISCELLANEOUS..............................................27
SECTION 1. REFERENCES; HEADINGS; COUNTERPARTS.........................27
SECTION 2. APPLICABLE LAW.............................................27
SECTION 3. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.............27
SECTION 4. STATUTORY TRUST ONLY.......................................28
SECTION 5. USE OF THE NAMES "FRANKLIN" OR "XXXXXXXXX".................28
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXXX GLOBAL SMALLER COMPANIES FUND
AGREEMENT AND DECLARATION OF TRUST made as of this 2nd day of
December, 2003, by the Trustees hereunder, and by the holders of Shares to be
issued by the Trust hereunder as hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being 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 issue its Shares in separate
Series, to divide Shares of any Series into two or more classes and to issue
classes of any Series, 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 they will hold all
cash, securities and other assets that they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to 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.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. NAME. This Trust shall be known as "Xxxxxxxxx Global Smaller
Companies 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 to be filed with the office of the Secretary of State of the State
of Delaware as required under the Delaware Statutory Trust Act, as amended from
time to time, to form the Trust, as such certificate shall be amended or
restated from time to time and filed with such office;
(f) "CODE" shall mean the Internal Revenue Code of 1986 and the
rules and regulations thereunder, all as adopted or amended from time to time;
(g) "COMMISSION" shall have the meaning given that term in the
1940 Act;
(h) "DSTA" shall mean the Delaware Statutory Trust Act (12 DEL.
C.ss.3801, ET SEQ.), as amended from time to time;
(i) "DECLARATION OF TRUST" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "GENERAL LIABILITIES" shall have the meaning given it in
Article III, Section 6(b) of this Declaration Trust;
(k) "INTERESTED PERSON" shall have the meaning given that term
in the 1940 Act;
(l) "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;
(m) "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;
(n) "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;
(o) "PRINCIPAL UNDERWRITER" shall have the meaning given that
term in the 1940 Act;
(p) "SERIES" shall refer to each Series of Shares established
and designated under and in accordance with the provisions of Article III hereof
and shall mean an entity such as that described in the 1940 Act;
(q) "SHARES" shall mean the outstanding shares of beneficial
interest into which the beneficial interest in the Trust shall be divided from
time to time, and shall include fractional and whole shares;
(r) "SHAREHOLDER" shall mean a record owner of Shares pursuant
to the By-Laws;
(s) "TRUST" shall mean the Delaware statutory trust formed
pursuant to this Declaration of Trust and the filing of the Certificate of Trust
with the office of the Secretary of State of the State of Delaware;
(t) "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;
(u) "TRUSTEE" or "TRUSTEES" shall mean each Person that signs
this Declaration of Trust as a trustee, so long as such signatory continues in
office in accordance with the terms hereof, 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. 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; and
(v) "VOTE OF A MAJORITY OF THE OUTSTANDING VOTING SECURITIES"
shall have the meaning provided under Subsection 2(a)(42) of the 1940 Act or any
successor provision thereof, which Subsection, as of the date hereof, is as
follows: the vote, at a meeting of the Shareholders, (i) of sixty-seven percent
(67%) or more of the voting securities present in person or represented by proxy
at such meeting, if the holders of more than fifty percent (50%) of the
outstanding voting securities of the Trust are present or represented by proxy;
or (ii) of more than fifty percent (50%) of the outstanding voting securities of
the Trust, whichever is the less.
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 granted to a statutory trust formed under the DSTA, including, without
limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested,
and 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, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers' acceptances, and
other securities of any kind, 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, to change the investments of the assets of the Trust;
(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;
(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; and
(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 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.
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 at all times be divided into
outstanding shares of the Trust, all without par value. The number of shares of
beneficial interest in the Trust authorized hereunder is unlimited. The Board of
Trustees may authorize the division of Shares into separate classes of Shares
and into separate and distinct Series and the division of any Series into
separate classes of Shares in accordance with the 1940 Act. The different Series
and classes shall be established and designated pursuant to Article III, Section
6 hereof. If no separate Series or classes of Series shall be established, the
Shares shall have the rights, powers and duties provided for herein and in
Article III, Section 6 hereof to the extent relevant and not otherwise provided
for herein, and all references to Series and classes shall be construed (as the
context may require) to refer to the Trust. The fact that 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, or to establish and designate separate classes of the previously
established and designated classes.
(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
or securities 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 each
Series and 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 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 thereof 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 thereof (including variations in the relative rights and
preferences as between the different Series and classes thereof) otherwise than
as provided herein. Each such resolution shall be incorporated herein by
reference upon 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 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 of the Series
shall be held and accounted for separately from the liabilities of the Trust,
the Series or any other class of the Series and separate and distinct records on
the books of the Trust for the class of the Series 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 and a distinct investment purpose.
Shares of each Series (and class thereof where applicable) established
and designated pursuant to this Section 6, unless otherwise provided to the
extent permitted by the DSTA, in the resolution establishing and designating
such Series or class, shall have the following rights, powers and duties:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably be held with respect to that Series for all purposes, subject
only to the rights of creditors with respect to that Series, and shall be so
recorded upon the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are herein
referred to as "assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of Trustees, or an
appropriate officer as determined by the Board of Trustees, shall allocate such
General Assets to, between or among any one or more of the Series in such manner
and on such basis as the Board of Trustees, in its sole discretion, deems fair
and equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by or under the
direction of the Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES OR
CLASS. The assets of the Trust held with respect to a particular Series shall be
charged with the liabilities, debts, obligations, costs, charges, reserves and
expenses of the Trust incurred, contracted for or otherwise existing with
respect to such Series. Such liabilities, debts, obligations, costs, charges,
reserves and expenses incurred, contracted for or otherwise existing with
respect to a particular Series are herein referred to as "liabilities held with
respect to" that Series. Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust which are not readily identifiable as being
liabilities held with respect to any particular Series (collectively "General
Liabilities") shall be allocated by the Board of Trustees, or an appropriate
officer as determined by the Board of Trustees, to and among any one or more of
the Series in such manner and on such basis as the Board of Trustees in its sole
discretion deems fair and equitable. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or under the direction of
the Board of Trustees shall be conclusive and binding upon the Shareholders of
all Series for all purposes. All Persons who have extended credit that has been
allocated to a particular Series, or who have a claim or contract that has been
allocated to any particular Series, shall look, and shall be required by
contract to look exclusively, to the assets of that particular Series for
payment of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider shall be
deemed nevertheless to have impliedly agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against the
assets held with respect to that Series only, and not against the assets of any
other Series or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of this limitation
on liabilities between and among Series shall be set forth in the Certificate of
Trust to be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DSTA, and upon the giving of such notice in the
Certificate of Trust, the statutory provisions of Section 3804 of the DSTA
relating to limitations on liabilities between and among Series (and the
statutory effect under Section 3804 of setting forth such notice in the
Certificate of Trust) shall become applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should
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 on the matter, separately by Series and, if applicable, by
class, PROVIDED THAT: (1) where the 1940 Act or any other provision of this
Declaration of Trust permits or requires, or the Board of Trustees determines,
all Shares of the Trust to be voted in the aggregate without differentiation
between the separate Series or classes, then all of the Trust's Shares shall
vote in the aggregate; and (2) if any matter affects only the interests of some
but not all Series or classes, then only the Shareholders of such affected
Series or classes shall be entitled to vote on the matter.
(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. The Board of Trustees shall have the
authority, without the approval 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 proportionate interest of each Shareholder, in the assets and
liabilities held with respect to the combined Series shall equal the
proportionate interest of each such Shareholder in the assets and liabilities
held with respect to each Series that was combined.
(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 upon the vote of the holders of not
less than a majority of the Shares outstanding and entitled to vote of such
class. In addition, at any time there are no Shares outstanding of a particular
class, the Board of Trustees may terminate such class and rescind the
establishment and designation thereof; 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. If any Shareholder or former
Shareholder shall be exposed to liability 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 arising from
such claim or demand; PROVIDED, HOWEVER, such indemnity shall not cover (i) any
taxes due or paid by reason of such Shareholder's ownership of any Shares and
(ii) expenses charged to a Shareholder pursuant to Article IV, Section 5 hereof.
ARTICLE IV.
THE BOARD OF TRUSTEES
Section 1. NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION.
(a) The initial Board of Trustees shall be comprised of the
Trustees entering into this Declaration of Trust on the date first written
above, who shall hold office until the initial holder of a Share executes a
consent in writing to elect a Board of Trustees that holds office in accordance
with paragraph (c) of this Section 1. The initial Trustees shall (i) execute and
file or cause to be filed the Certificate of Trust with the office of the
Secretary of State of the State of Delaware and (ii) adopt the By-Laws. Each
Trustee shall execute a counterpart to this Declaration of Trust.
(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) and the percentage of
Trustees who are not Interested Persons of the Trust shall be no less than that
permitted by the 1940 Act. 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 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. Shareholders shall
have the power to remove a Trustee only to the extent provided by the 1940 Act.
(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. 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. A consent transmitted by electronic transmission (as defined in 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 thereof; and (14) in
general delegate such authority as it considers desirable to any officer of the
Trust, to any committee of the Trust and to any agent or employee of the Trust
or to any such custodian, transfer, dividend disbursing, shareholder servicing
agent, Principal Underwriter, Investment Adviser, or other service provider, to
the extent authorized and in accordance with this Declaration of Trust, the
By-Laws and applicable law. 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 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. 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 class 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 of
the Trust, or any Shareholder of any particular Series thereof, to pay directly,
in advance or arrears, for charges of the Trust's custodian or transfer,
dividend disbursing, shareholder servicing or similar agent for services
provided to such Shareholder, an amount fixed from time to time by the Board of
Trustees, 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,
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 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 following contracts 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 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 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 any provision of this Declaration of Trust, the
By-Laws, the 1940 Act or other applicable law that requires a different vote:
(1) in all matters other than the election of Trustees, the affirmative "vote of
a majority of the outstanding voting securities" (as defined herein) of the
Trust entitled to vote at a Shareholders' meeting at which a quorum is present,
shall be the act of the Shareholders; and (2) Trustees shall be elected by not
less than a plurality of the votes cast of the holders of Shares entitled to
vote present in person or represented by proxy at a Shareholders' meeting at
which a quorum is present. Pursuant to Article III, Section 6(d) hereof, where a
separate vote by Series and, if applicable, by classes 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, but will not be treated as votes cast.
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 or any percentage of votes cast, or of Shares
present, for approval, but (iii) will have the same effect as a vote "against"
on proposals requiring any percentage of the outstanding voting securities of
the Trust 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 and without prior notice if a consent or consents in writing setting
forth the action so taken is signed by the holders of all Shares entitled to
vote on that action, and is received by the secretary of the Trust. 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 before the written consents of all Shares entitled to vote have been
received by the secretary of the Trust.
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. 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, the Board of Trustees may from time to time fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall not be more than sixty
(60) days before the date for the payment of such dividend 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, 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.
(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 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; provided however, that if the Shares of a Series
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 or 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 or a particular Series from the
Trust Property held with respect to the Trust or such Series thereof,
respectively, according to the number of Shares of the Trust or such Series held
of record by such Shareholders on the record date for any dividend or
distribution; provided however, that if the Shares of a Series are divided into
classes thereof, all dividends and distributions from the Trust Property held
with respect to such Series shall be distributed to each class of 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 such
Shareholders on the record date for any dividend or distribution. Dividends may
be paid in cash or in kind.
(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 it 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 by reason of the prohibitions of the 1940 Act or the
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any other applicable law, shall receive cash. 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 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
solely 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) 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 and no inference concerning liability shall arise
from a failure to follow such advice. 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 a majority
vote of Trustees, even though such number of Trustees shall be less than a
quorum, who are not parties to the Proceeding and have no economic or other
interest in connection with such specific case; a committee of such Trustees
designated by majority vote of such Trustees even though such number of Trustees
shall be less than a quorum; or 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.
(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
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 advisor 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 entitled to vote or (ii)
at the discretion of the Board of Trustees at any time there are no Shares
outstanding 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 that Series entitled to
vote or (ii) at the discretion of the Board of Trustees at any time there are no
Shares outstanding of that 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 a Series are divided into
classes thereof, any remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to such Series shall be
distributed to each class of 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. 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 to convert to a master feeder structure (a structure
in which a feeder fund invests all of its assets into a master fund, rather than
making investments in securities directly) and thereby cause existing Series of
the Trust to either become feeders into a master fund, or to become master funds
into which other funds are feeders.
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" OR "XXXXXXXXX".
(a) The Board of Trustees expressly agrees and acknowledges that
the names "Franklin" and "Xxxxxxxxx" 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" and
"Xxxxxxxxx," 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" and
"Xxxxxxxxx" in their names and in the names of any series or class of shares of
such funds.
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IN WITNESS WHEREOF, the Trustees 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/Xxxxx X. Xxxxxxx
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