NAME OF REGISTRANT:
XXXXXXXXX INSTITUTIONAL FUNDS
File No. 811-06135
EXHIBIT ITEM: Copies of any material amendments to the registrant's
charter or by-laws
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of
XXXXXXXXX INSTITUTIONAL FUNDS
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted
October 18, 2006; current Amended and Restated Agreement
and Declaration of Trust adopted May 18, 2018.)
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
........................2
Section 1. Name .....................................................
..................................................2
Section 2. Offices of the Trust .....................................
............................................2
Section 3. Registered Agent and Registered Office....................
.............................2
Section 4. Definitions................................................
...............................................2
ARTICLE II PURPOSE OF TRUST ..........................................
-.........................................4
ARTICLE III SHARES ....................................................
......................................................8
Section 1. Division of Beneficial Interest ...........................
.....................................8
Section 2. Ownership of Shares .......................................
........................................9
Section 3. Sale of Shares.............................................
.............................................9
Section 4. Status of Shares and Limitation of Personal Liability .....
.....................10
Section 5. Power of Board of Trustees to Make Tax Status Election.....
...............10
Section 6. Establishment and Designation of Series and Classes .......
...................10
Section 7. Indemnification of Shareholders............................
...............................14
ARTICLE IV THE BOARD OF TRUSTEES .....................................
.................................14
Section 1. Number, Election, Term, Removal and Resignation ..........
..................14
Section 2. Trustee Action by Written Consent Without a Meeting .......
................15
Section 3. Powers; Other Business Interests; Quorum and Required Vote
...........16
Section 4. Payment of Expenses by the Trust............................
............................18
Section 5. Payment of Expenses by Shareholders ......................
...........................18
Section 6. Ownership of Trust Property ..............................
..................................18
Section 7. Service Contracts .......................................
...........................................19
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS ...............
.......20
Section 1. Voting Powers..........................................
.............................................20
Section 2. Quorum and Required Vote ..............................
....................................20
Section 3. Shareholder Action by Written Consent Without a Meeting.
...............21
Section 4. Record Dates ..........................................
...............................................21
Section 5. Additional Provisions...................................
.........................................22
i
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS;
TRANSFERS .............................................................
....................................23
Section 1. Determination of Net Asset Value, Net Income and
Distributions .....23
Section 2. Redemptions at the Option of a Shareholder ......
..................................25
Section 3. Redemptions at the Option of the Trust .........
.......................................26
Section 4. Transfer of Shares ...............................
..................................................26
ARTICLE VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF
AGENT ...........................................................
...............................................27
Section 1. Limitation of Liability...........................
................................................27
Section 2. Indemnification ..................................
...................................................28
Section 3. Insurance ........................................
.......................................................29
Section 4. Derivative Actions ...............................
.................................................30
Section 5. Jurisdiction and Waiver of Jury Trial ...........
........................................30
ARTICLE VIII CERTAIN TRANSACTIONS.................................
......................................31
Section 1. Dissolution of Trust or Series ....................
...........................................31
Section 2. Merger or Consolidation; Conversion; Reorganization
........................32
Section 3. Master Feeder Structure ...........................
.............................................34
Section 4. Absence of Appraisal or Dissenters' Rights ........
.................................34
ARTICLE IX AMENDMENTS ..........................................
.................................................34
Section 1. Amendments Generally .................................
.......................................34
ARTICLE X MISCELLANEOUS ........................................
..............................................35
Section 1. References; Headings; Counterparts ....................
.................................35
Section 2. Applicable Law .......................................
..............................................35
Section 3. Provisions in Conflict with Law or Regulations..........
.........................36
Section 4. Statutory Trust Only ....................................
.........................................36
Section 5. Use of the Names "Franklin," "Xxxxxxxxx," "Fiduciary Trust,"
and/or "Institutional Fiduciary Trust"....................................
...............36
ii
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST OF
XXXXXXXXX INSTITUTIONAL FUNDS
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made as of this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Xxxxxxxxx Institutional Funds (the "Trust") was formed on
October 18, 2006 under the name "Xxxxxxxxx Institutional Trust" by
its Trustees by the filing of the Certificate of Trust with the
Office of the Secretary of State of the State of Delaware pursuant
to an Agreement and Declaration of Trust dated as of October 18,
2006 (the "Original Declaration of Trust"), and the name of the
Trust was changed to "Xxxxxxxxx Institutional Funds" pursuant to
the filing of a Certificate of Amendment to the Certificate of
Trust with the Office of the Secretary of State of the State of
Delaware on January 4, 2007; and
WHEREAS this Trust has been formed to carry on the business of
an open-end management investment company as defined in the 1940
Act; and
WHEREAS this Trust is authorized to divide its Shares into two
or more Classes, to issue its Shares in separate Series, to divide
Shares of any Series into two or more Classes and to issue Classes
of the Trust or the Series, if any, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming
into their hands as trustees of a Delaware statutory trust in
accordance with the provisions of the Delaware Statutory Trust
Act, as amended from time to time, and the provisions hereinafter
set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust may
from time to time acquire in any manner shall be managed and
disposed of upon the following terms and conditions as hereinafter
set forth; and
(ii) this Declaration of Trust and the By-Laws shall be binding
in accordance with their terms on every Trustee, by virtue of having
become a Trustee of the Trust, and on every Shareholder, by virtue
of having become a Shareholder of the Trust, pursuant to the terms
of this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Xxxxxxxxx
Institutional Funds" and the Board of Trustees shall conduct the
business of the Trust under that name, or any other name as it
may from time to time designate. The Trustees may, without Shareholder
approval, change the name of the Trust or any Series or Class. Any
name change of any Series or Class shall become effective upon
approval by the Trustees of such change or any document (including
any registration statement) reflecting such change, or at such later
time as may be approved by the Trustees. Any name change of the Trust
shall become effective upon the filing of a certificate of amendment
under the DSTA reflecting such change, or at such later time specified
in such certificate of amendment. Any such action shall have the
status of an amendment to this Declaration of Trust. In the event
of any name change, the Trustees shall cause notice to be given to
the affected Shareholders within a reasonable time after the
implementation of such change, which notice will be deemed given
if the changed name is reflected in any registration statement.
The Trust shall constitute a Delaware statutory trust in
accordance with the DSTA.
Section 2. Offices of the Trust. The Board may at any time
establish offices of the
Trust at any place or places where the Trust intends to do business.
Section 3. Registered Agent and Registered Office. The name
of the registered agent of the Trust and the address of the registered
office of the Trust are as set forth in the Trust's Certificate of
Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations thereunder, all as adopted or amended
from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person"
as such term is defined in the 1940 Act when used with reference to
a specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from
time to time pursuant to Article IV hereof, having the powers and
duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended,
restated or supplemented from time to time in accordance with Article
VIII therein. Such By-Laws may contain any provision not inconsistent
with applicable law or this Declaration of Trust, relating to the
governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of
the Trust filed with the office of the Secretary of State of the
State of Delaware as required under the DSTA to
form the Trust, as such certificate shall be amended, restated or
supplemented from time to time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust or of
a Series of the Trust established and designated under and in
accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and
the rules and regulations thereunder, all as adopted or amended
from time to time;
(h) "Commission" shall have the meaning given that term in
the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 Del. C. 3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended,
restated or supplemented from time to time;
(k) "General Liabilities" shall have the meaning given
it in Article III, Section
6(b) of this Declaration of Trust;
Act;
(l) "Interested Person" shall have the meaning given
that term in the 1940
(m) "Investment Adviser" or "Adviser" shall mean a Person,
as defined below, furnishing services to the Trust pursuant to
any investment advisory or investment management contract
described in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or
any part of any period during (i) which an emergency exists as
a result of which disposal by the Trust of securities or other
assets owned by the Trust is not reasonably practicable; (ii)
which it is not reasonably practicable for the Trust fairly to
determine the net asset value of its assets; or (iii) such other
period as the Commission may by order permit for the protection
of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, in each case,
whether domestic or foreign, and a statutory trust or a foreign
statutory or business trust;
1940 Act;
(p) "Principal Underwriter" shall have the meaning given that
term in the
(q) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of Article
III hereof;
(r) "Shares" shall mean the transferable shares of beneficial
interest into which the beneficial interest in the Trust shall be
divided from time to time, and shall include fractional and whole
Shares;
Laws;
(s) "Shareholder" shall mean a record owner of Shares pursuant
to the By-
(t) "Trust" shall mean Xxxxxxxxx Institutional Funds, the Delaware
statutory trust formed under the Original Declaration of Trust, as
amended, and by filing of the Certificate of Trust with the office
of the Secretary of State of the State of Delaware, and governed by
this Declaration of Trust;
(u) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for
the account of the Trust, or one or more of any Series thereof,
including, without limitation, the rights referenced in Article X,
Section 5 hereof; and
(v) "Trustee" or "Trustees" shall mean each Person who signs
this Declaration of Trust as a trustee and all other Persons who may,
from time to time, be duly elected or appointed, qualified and
serving on the Board of Trustees in accordance with the provisions
hereof and the By-Laws, so long as such signatory or other Person
continues in office in accordance with the terms hereof and the
By-Laws. Reference herein to a Trustee or the
Trustees shall refer to such Person or Persons in such Person's or
Persons' capacity as a trustee or trustees hereunder and under the
By-Laws.
ARTICLE II PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a registered
management investment company registered under the 1940 Act, directly,
or if one or more Series is established hereunder, through one or
more Series, investing primarily in securities, and to exercise all
of the powers, rights and privileges granted to, or conferred upon,
a statutory trust formed under the DSTA, including, without limitation,
the following powers:
(a) To hold, invest and reinvest its funds, and in connection
therewith, to make any changes in the investment of the assets of
the Trust, to hold part or all of its funds in cash, to hold cash
uninvested, to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, mortgage, transfer,
exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of fixed income or other securities, and
securities or property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, shares, units of
beneficial interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, money market
instruments, certificates of deposit or indebtedness, bills, notes,
mortgages, commercial paper, repurchase or reverse repurchase
agreements, bankers' acceptances, finance paper, and
any options, certificates, receipts, warrants, futures contracts or
other instruments representing rights to receive, purchase or
subscribe for the same, or evidencing or representing any other
rights or interests therein or in any property or assets, and other
securities of any kind, as the foregoing are issued, created,
guaranteed, or sponsored by any and all Persons, including, without
limitation, states, territories, and possessions of the United
States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or
any foreign government, or any international instrumentality, or
by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation
or organization organized under any foreign law, or in "when
issued" contracts for any such securities;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use and
enjoyment of any of such securities and other instruments or
property of every kind and description, including, but without
limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with respect
to or otherwise deal with, dispose of, use, exercise or enjoy any
rights, title, interest, powers or privileges under or with reference
to any of such securities and other instruments or property, the
right to consent and otherwise act with respect thereto, with power
to designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments, and
to do any and all acts and things for the preservation, protection,
improvement and enhancement in value of any of such securities and
other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease
or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any Series,
subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such Person or Persons
as the Trustees shall deem proper, granting to such Person or Persons
such power and discretion with relation to securities or property
as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities and/or
other property;
(f) To hold any security or property in a form not indicating
that it is trust property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian
or subcustodian or a nominee or nominees or otherwise or to authorize
the custodian or a subcustodian or a nominee or nominees to deposit
the same in a securities depository, subject in each case to proper
safeguards according to the usual practice of investment companies or
any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security
which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any
security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate
to them such power and authority with relation to any security
(whether or not so deposited or transferred) as
the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty
or suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Board of Trustees may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust
or payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims
and liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such Person
as Trustee, officer, employee, agent, Investment Adviser, Principal
Underwriter, or independent contractor, to the fullest extent
permitted by this Declaration of Trust, the By-Laws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of
the Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved
and unimproved, and wheresoever situated; and to build, erect,
construct, alter and maintain buildings, structures, and other
improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the
Trust, and to mortgage or pledge the whole or any part of the
property and franchises of the Trust, real, personal, and mixed,
tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in stocks, Shares, bonds, debentures and other
securities, instruments or other property of the Trust, from
time to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust,
determine; and to re-acquire and redeem, from time to time,
its Shares or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon,
or adjust, by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any debts,
claims or expenses incurred in connection therewith, including
those of litigation, and such power shall include without
limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding,
dispute, claim, or demand, derivative or otherwise, brought
by any Person, including a Shareholder in the Shareholder's
own name or the name of the Trust, whether or not the Trust
or any of the Trustees may be named individually therein or
the subject matter arises by reason of business for or on
behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other
states, territories, districts and United States dependencies
and in foreign countries, all of the foregoing powers, rights
and privileges, and the enumeration of the foregoing powers
shall not be deemed to exclude any powers, rights or privileges
so granted or conferred; and
(u) In general, to carry on any other business in connection
with or incidental to its trust purposes, to do everything
necessary, suitable or proper for the accomplishment of such
purposes or for the attainment of any object or the furtherance
of any power hereinbefore set forth, either alone or in association
with others, and to do every other act or thing incidental or
appurtenant to, or growing out of, or connected with, its business
or purposes, objects or powers.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its
Series. Neither the Trust nor the Board of Trustees shall be required
to obtain any court order to deal with any assets of the Trust or take
any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing
enumeration of specific purposes, objects and powers shall not be
held to limit or restrict in any manner the powers of the Trust,
and that they are in furtherance of, and in addition to, and not
in limitation of, the general powers conferred upon the Trust by
the DSTA and the other laws of the State of Delaware or otherwise;
nor shall the enumeration of one thing be deemed to exclude another,
although it be of like nature, not expressed.
ARTICLE III SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided into
Shares, each Share without a par value. The number of Shares in the
Trust authorized hereunder, and of each Series and Class as may be
established from time to time, is unlimited. The Board of Trustees
may authorize the division of Shares into separate Classes of Shares
and into separate and distinct Series of Shares and the division of
any Series into separate Classes of Shares in accordance with the
1940 Act. The different Series and Classes shall be established
and designated pursuant to Article III, Section 6 hereof. If no
separate Series or Classes of Series shall be established, the
Shares shall have the rights, powers and duties provided for
herein and in Article III, Section 6 hereof to the extent relevant
and not otherwise provided for herein, and all references to
Series and Classes shall be construed (as the context may require)
to refer to the Trust.
(i) The fact that the Trust shall have one or more established
and designated Classes of the Trust, shall not limit the authority
of the Board of Trustees to establish and designate additional
Classes of the Trust. The fact that one or more Classes of the
Trust shall have initially been established and designated without
any specific establishment or designation of a Series (i.e.,
that all Shares of the Trust are initially Shares of one or more
Classes) shall not limit the authority of the Board of Trustees
to later establish and designate a Series and establish and
designate the Class or Classes of the Trust as Class or Classes,
respectively, of such Series.
(ii) The fact that a Series shall have initially been established
and designated without any specific establishment or designation of
Classes (i.e., that all Shares of such Series are initially of a
single Class) shall not limit the authority of the Board of Trustees
to establish and designate separate Classes of said Series. The
fact that a Series shall have more than one established and designated
Class, shall not limit the authority of the Board of Trustees to
establish and designate additional Classes of said Series.
(b) The Board of Trustees shall have the power to issue
authorized, but unissued Shares of the Trust, or any Series
and Class thereof, from time to time for such consideration
paid wholly or partly in cash, securities or other property,
as may be determined from time to time by the Board of Trustees,
subject to any requirements or limitations of the
1940 Act. The Board of Trustees, on behalf of the Trust, may
acquire and hold as treasury shares, reissue for such consideration
and on such terms as it may determine, or cancel, at its discretion
from time to time, any Shares reacquired by the Trust. The Board
of Trustees may classify, reclassify or convert any unissued Shares
or any Shares of the Trust or any Series or Class thereof, that
were previously issued and are reacquired, into one or more Series
or Classes that may be established and designated from time to
time and, in connection therewith, cause
some or all of the Shareholders of the Trust, such Series or Class
to become Shareholders of such other Series or Class.
Notwithstanding the foregoing, the Trust and any Series thereof
may acquire, hold, sell and otherwise deal in, for purposes of
investment or otherwise, the Shares of any other Series of the
Trust or Shares of the Trust, and such Shares shall not be deemed
treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III,
each Share shall entitle the holder to voting rights as provided
in Article V hereof. Shareholders shall have no preemptive or
other right to subscribe for new or additional authorized, but
unissued Shares or other securities issued by the Trust or any
Series thereof. The Board of Trustees may from time to time
divide or combine the Shares of the Trust or any particular Series
thereof into a greater or lesser number of Shares of the Trust or
that Series, respectively. Such division or combination shall not
materially change the proportionate beneficial interests of the
holders of Shares of the Trust or that Series, as the case may be,
in the Trust Property at the time of such division or combination
that is held with respect to the Trust or that Series, as the case
may be.
(d) Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person has an economic or other
interest, may acquire, own, hold and dispose of Shares in the Trust
or any Series and Class thereof, whether such Shares are authorized
but unissued, or already outstanding, to the same extent as if such
Person were not a Trustee, officer or other agent of the Trust; and
the Trust or any Series may issue and sell and may purchase such
Shares from any such Person or any such organization, subject to
the limitations, restrictions or other provisions applicable to
the sale or purchase of such Shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust kept by the Trust or
by a transfer or similar agent for the Trust, which books shall
be maintained separately for the Shares of the Trust and each
Series and each Class thereof that has been established and
designated. No certificates certifying the ownership of Shares
shall be issued except as the Board of Trustees may otherwise
determine from time to time. The
Board of Trustees may make such rules not inconsistent with the
provisions of the 1940 Act as it considers appropriate for the
issuance of Share certificates, the transfer of Shares of the
Trust and each Series and Class thereof, if any, and similar
matters. The record books of the Trust as kept by the Trust
or any transfer or similar agent, as the case may be, shall be
conclusive as to who
are the Shareholders of the Trust and each Series and Class
thereof and as to the number of Shares of the Trust and each
Series and Class thereof held from time to time by each such
Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but unissued
Shares to such Persons, at such times, on such terms, and for
such consideration as the Board of Trustees may from time to
time authorize. Each sale shall be credited to the individual
purchaser's account in the form of full or fractional Shares
of the Trust or such Series thereof (and Class thereof, if any),
as the purchaser may select, at the net asset value per Share,
subject to Section 22 of the 1940 Act, and the rules and
regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the
Principal Underwriter to impose a sales charge upon any such
sale. Every Shareholder by virtue of having become a
Shareholder shall be bound by the terms of this Declaration
of Trust.
Ownership of Shares shall not make any Shareholder a
third-party beneficiary of any contract entered into by
the Trust or any Series.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property
giving to Shareholders only the rights provided in this
Declaration of Trust, the By-Laws, and under applicable law.
Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust Property
or right to call for a partition or division of the same or
for an accounting, nor shall the ownership of Shares constitute
the Shareholders as partners. Subject to Article VIII, Section
1 hereof, the death, incapacity, dissolution, termination, or
bankruptcy of a Shareholder during the existence of the Trust and
any Series thereof shall not operate to dissolve the Trust or
any such Series, nor entitle the representative of any deceased,
incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against
the Trust, the Trustees or any such Series, but entitles such
representative only to the rights of said deceased, incapacitated,
dissolved, terminated or bankrupt Shareholder under this Declaration
of Trust. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust, shall have any power to bind
personally any Shareholder, nor, except as specifically provided
herein, to call upon any Shareholder for the payment of any sum
of money other than such as the Shareholder may at any time
personally agree to pay. Each Share, when issued on the terms
determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall
be entitled to the same limitation of personal liability as
that extended to stockholders of a private corporation organized
for profit under the General Corporation Law of the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status Election.
The Board of Trustees shall have the power, in its discretion, to
make such elections as to the tax status of the Trust and any Series
as may be permitted or required under the Code, without the vote of
any Shareholder.
Section 6. Establishment and Designation of Series and Classes.
The establishment and designation of any Series or Class shall be
effective, without the requirement of Shareholder approval, upon
the adoption of a resolution by not less than a majority of the
then Board of Trustees, which resolution shall set forth such
establishment and designation whether directly in such resolutions
or by reference to, or approval of, another document that sets
forth the designation or otherwise identifies such Series or
Class, including any registration statement of the Trust and
any amendment of this Declaration of Trust, and may provide,
to the extent permitted by the DSTA, for rights, powers and duties
of such Series or Class (including variations in the relative
rights and preferences as between the different Series and Classes)
otherwise than as provided herein. Any action that may be taken by
the Board of Trustees with respect to any Series or Class, including
any addition, modification, division, combination, classification,
reclassification, change of name or termination, may be made in the
same manner as the establishment of such Series or Class.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall be
maintained for each Series, and the assets and
liabilities belonging to any such Series shall be held and accounted
for separately from the assets and liabilities of the Trust or any
other Series. Each Class of the Trust shall be separate and distinct
from any other Class of the Trust. Each Class of a Series shall be
separate and distinct
from any other Class of the Series. As appropriate, in a manner
determined by the Board of Trustees, the liabilities belonging to
any such Class shall be held and accounted for separately from the
liabilities of the Trust, the Series or any other Class and separate
and distinct records on the books of the Trust for the Class shall
be maintained for this purpose. Subject to Article II hereof, each
such Series shall operate as a separate and distinct investment medium,
with separately defined investment objectives and policies.
Shares of each Series (and Class where applicable) established and
designated pursuant to this Section 6, unless otherwise provided
to the extent permitted by the DSTA, in the resolution establishing
and designating such Series or Class, shall have the following
rights, powers and duties:
(a) Assets Held with Respect to a Particular Series. All
consideration
received by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall irrevocably
be held with respect to that Series for all purposes, subject only
to the rights of creditors with respect to that Series, and shall be
so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of
such proceeds, in whatever form the same may be, are herein referred
to as "assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof,
funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of
Trustees, or an appropriate officer as determined by the Board of
Trustees, shall allocate such General Assets to, between or
among any one or more of the Series in such manner and on such
basis as the Board of Trustees, in its sole discretion, deems
fair and equitable, and any General Asset so allocated to a
particular Series shall be held with respect to that Series.
Each such allocation by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or
Class. The assets of the Trust held with respect to a particular
Series shall be charged with the liabilities, debts, obligations,
costs, charges, reserves and expenses of the Trust incurred,
contracted for or otherwise existing with respect to such Series.
Such liabilities, debts, obligations, costs, charges, reserves
and expenses incurred, contracted for or otherwise existing with
respect to a particular Series are herein referred to as "liabilities
held with respect to" that Series. Any liabilities, debts,
obligations, costs, charges, reserves and expenses of the Trust
which are not readily identifiable as being liabilities held with
respect to any particular Series (collectively "General Liabilities")
shall be allocated by the Board of Trustees, or an appropriate officer
as determined by the Board of Trustees, to and among any one or more
of the Series in such manner and on such basis as the Board of Trustees
in its sole discretion deems fair and equitable. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and expenses
by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes. All
Persons who have extended credit that has been allocated to a particular
Series, or who have a
claim or contract that has been allocated to any particular Series,
shall look exclusively to the assets of that particular Series for
payment of such credit, claim, or contract. In the absence of
an express contractual agreement so limiting the claims of such
creditors, claimants and contract providers, each creditor, claimant
and contract provider shall be deemed nevertheless to have impliedly
agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General
Liabilities as provided herein, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized
and existing pursuant to this Declaration of Trust or is hereafter
authorized and existing pursuant to this Declaration of Trust, shall
be enforceable against the assets held with respect to that Series
only, and not against the assets of any other Series or the Trust
generally and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the
Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of this
limitation on liabilities between and among Series shall be set forth
in the Certificate of Trust pursuant to the DSTA, and upon
the giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and among Series (and the statutory effect under
Section 3804 of setting forth such notice in the Certificate of Trust)
shall become applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that
should or may properly be allocated to, the Shares of a particular
Class may be charged to and borne solely by such Class. The bearing
of expenses solely by a particular Class of Shares may be appropriately
reflected (in a manner determined by the Board of Trustees) and may
affect the net asset value attributable to, and the dividend, redemption
and liquidation rights of, such Class. Each allocation of liabilities,
debts, obligations, costs, charges, reserves and expenses by or under
the direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Classes for all purposes. All Persons who
have extended credit that has been allocated to a particular Class, or
who have a claim or contract that has been allocated to any particular
Class, shall look, and may be required by contract to look, exclusively
to that particular Class for payment of such credit, claim, or contract.
(c) Dividends, Distributions and Redemptions. Notwithstanding any
other provisions of this Declaration of Trust, including, without
limitation, Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon dissolution of the
Trust or of any Series with respect to, nor any redemption of, the
Shares of any Series or Class of such Series shall be effected by
the Trust other than from the assets held with respect to such
Series, nor, except as specifically provided in Section 7 of this
Article III, shall any Shareholder of any particular Series otherwise
have any right or claim against the assets held with respect to any
other Series or the Trust generally except, in the case of a right
or claim against the assets held with respect to any other Series,
to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Board of
Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as
income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a
matter shall vote in the aggregate without differentiation between
the Shares of the separate Series, if any, or
separate Classes, if any; provided that (i) with respect to any
matter that affects only the interests of some but not all Series,
then only the Shares of such affected Series, voting separately,
shall
be entitled to vote on the matter, (ii) with respect to any matter
that affects only the interests of some but not all Classes, then
only the Shares of such affected Classes, voting separately, shall
be entitled to vote on the matter; and (iii) notwithstanding the
foregoing, with respect to any matter as to which the 1940 Act
or other applicable law or regulation requires voting, by Series
or by Class, then the Shares of the Trust shall vote as prescribed
in such law or regulation.
(e) Equality. Each Share of any particular Series shall be
equal to each other Share of such Series (subject to the rights
and preferences with respect to separate Classes of such Series).
(f) Fractions. A fractional Share of the Trust or a Series
shall carry proportionately all the rights and obligations of a
whole Share of the Trust or such Series, including rights with
respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have
the authority to provide that the holders of Shares of any Series
shall have the right to exchange said Shares for Shares of one
or more other Series in accordance with such requirements and
procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the authority, without
the approval, vote or consent of the Shareholders of any Series,
unless otherwise required by applicable law, to combine the
assets and liabilities held with respect to any two or more
Series into assets and liabilities held with respect to a
single Series; provided that upon completion of such combination
of Series, the interest of
each Shareholder, in the combined assets and liabilities held
with respect to the combined Series shall equal the interest
of each such Shareholder in the aggregate of the assets and
liabilities held with respect to the Series that were combined.
(ii) The Board of Trustees shall have the authority, without
the approval, vote or consent of the Shareholders of any Series
or Class, unless otherwise required by applicable law, to
combine, merge or otherwise consolidate the Shares of two or
more Classes of Shares of a Series with and/or into a single
Class of Shares of such Series, with such designation,
preference, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications,
terms and conditions of redemption and other characteristics
as the Trustees may determine; provided, however,
that the Trustees shall provide written notice to the affected
Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above may be effected
through
share-for-share exchanges, transfers or sales of assets,
Shareholder in-kind redemptions and purchases, exchange offers,
or any other method approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall
be dissolved and terminated upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall wind
up the affairs of such Series in accordance with Article VIII,
Section 1 hereof. The Board of Trustees shall terminate any
particular Class: (i) upon approval by a majority of votes cast
at a meeting of the Shareholders of such Class, provided a
quorum of Shareholders of such Class are present, or by
action of the Shareholders of such Class by written consent
without a meeting pursuant to Article V, Section 3; or (ii)
at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of such Class, or (B)
upon prior written notice to the Shareholders of such Class;
provided, however, that upon the termination of any particular
Series, every Class of such Series shall thereby be terminated.
Section 7. Indemnification of Shareholders. No Shareholder
as such shall be subject to any personal liability whatsoever
to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. If any Shareholder or
former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or
liability of the Trust, by reason of a claim or demand relating
exclusively to his or her being or having been a Shareholder
of the Trust or a Shareholder of a particular Series thereof,
and not because of such Shareholder's actions or omissions,
such Shareholder or former Shareholder (or, in the case of a
natural person, his or her heirs, executors, administrators,
or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified
out of the assets of the Trust or out of the assets of such
Series thereof, as the case may be, against all loss and
expense, including without limitation, attorneys' fees,
arising from such claim or demand; provided, however, such
indemnity shall not cover (i) any taxes due or paid by
reason of such Shareholder's ownership of any Shares and
(ii) expenses charged to a Shareholder pursuant to Article
IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written
above, who shall hold office in accordance with paragraph (c) of
this Section 1 and as otherwise provided herein. In accordance
with Section
3801 of the DSTA, each Trustee shall become a Trustee and be bound
by this Declaration of Trust and the By-Laws when such Person signs
this Declaration of Trust as a trustee and/or is duly elected or
appointed, qualified and serving on the Board of Trustees in
accordance with the
provisions hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with the terms hereof.
(b) The number of Trustees constituting the entire Board of
Trustees may be fixed from time to time by the vote of a majority
of the then Board of Trustees; provided, however, that the number
of Trustees shall in no event be less than one (1) nor more than
fifteen (15). The number of Trustees shall not be reduced so as
to shorten the term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of the
Trust or until such Trustee's earlier death, resignation, removal,
retirement or inability otherwise to serve, or, if sooner than any
of such events, until the next meeting of Shareholders called for
the purpose of electing Trustees or consent of Shareholders in lieu
thereof for the election of Trustees, and until the election and
qualification of his or her successor. Shareholders shall not be
entitled to elect Trustees except as required by the 1940 Act.
To the extent required by the 1940 Act, the Shareholders shall elect
the Trustees on such dates as the Trustees may fix from time to time.
The Shareholders may elect Trustees at any meeting of Shareholders
called for that purpose pursuant to the By-Laws. In the event that
after the proxy material approved by the Trustees has been printed
for a meeting of Shareholders at which Trustees are to be elected
any one or more nominees approved by the Trustees named in such
proxy material dies or become incapacitated or is otherwise unable
or unwilling to serve, the authorized number of Trustees shall be
automatically reduced by the number of such nominees, unless the
Board of Trustees prior to the meeting shall otherwise determine.
A meeting of Shareholders for the purpose of electing or removing
one or more Trustees shall be called as provided in the By-Laws.
(d) Any Trustee may be removed, with or without cause, by the
Board of Trustees, by action of a majority of the Trustees then
in office, or by vote of the Shareholders at any meeting called
for that purpose.
(e) Any Trustee may resign at any time by giving written
notice to the secretary of the Trust or to a meeting of the Board
of Trustees. Such resignation shall be effective upon receipt,
unless specified to be effective at some later time.
(f) The declination to serve, death, resignation, retirement,
removal, incapacity, or inability of the Trustees, or any one of
them, shall not operate to dissolve or terminate the Trust or to
revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Section 2. Trustee Action by Written Consent Without a Meeting.
To the extent not inconsistent with the provisions of the 1940 Act,
any action that may be taken at any meeting of the Board of Trustees
or any committee thereof may be taken without a meeting and without
prior written notice if a consent or consents in writing setting
forth the action so taken is signed by the Trustees having not less
than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all Trustees
on the Board of Trustees or any committee thereof, as the case
may be, were present and voted. Written consents of the Trustees
may be executed in one or more counterparts. A consent transmitted
by electronic transmission (as defined in Section 3806 of the DSTA)
by a Trustee shall be deemed to be written and signed
for purposes of this Section. All such consents shall be filed
with the secretary of the Trust and shall be maintained in the
Trust's records.
Section 3. Powers; Other Business Interests; Quorum and
Required Vote.
(a) Powers. Subject to the provisions of this Declaration
of Trust, the business of the Trust (including every Series thereof)
shall be managed by or under the direction of the Board of Trustees,
and such Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility. The Board of Trustees
shall have full power and authority to do any and all acts and to
make and execute any and all contracts and instruments that it may
consider necessary or appropriate in connection with the operation
and administration of the Trust (including every Series thereof).
The Board of Trustees shall not be bound or
limited by present or future laws or customs with regard to
investments by trustees or fiduciaries, but, subject to the
other provisions of this Declaration of Trust and the By-Laws,
shall have full authority and absolute power and control over
the assets and the business of the Trust (including every Series
thereof) to the same extent as if the Board of Trustees was the
sole owner of such assets and business in its own right, including
such authority, power and control to do all acts
and things as it, in its sole discretion, shall deem proper to
accomplish the purposes of this Trust. Without limiting the foregoing,
the Board of Trustees may, subject to the requisite vote for such
actions as set forth in this Declaration of Trust and the By-Laws:
(1) adopt By-Laws not inconsistent with applicable law or this
Declaration of Trust; (2) amend, restate and repeal such By-Laws,
subject to and in accordance with the provisions of such By-Laws;
(3) fill vacancies on the Board of Trustees in accordance with this
Declaration of Trust and the By-Laws; (4) elect
and remove such officers and appoint and terminate such agents as
it considers appropriate, in accordance with this Declaration of
Trust and the By-Laws; (5) establish and terminate one or more
committees of the Board of Trustees pursuant to the By-Laws; (6)
place Trust Property in custody as required by the 1940 Act,
employ one or more custodians of the Trust Property and authorize
such custodians to employ sub-custodians and to place all or any
part of such Trust Property with a custodian or a custodial
system meeting the requirements of the 1940 Act; (7) retain a
transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, or any number
thereof or any other service provider as deemed appropriate;
(8) provide for the issuance and distribution of Shares in the
Trust or other securities or financial instruments directly or
through one or more Principal Underwriters or otherwise; (9)
retain one
or more Investment Adviser(s); (10) re-acquire and redeem Shares
on behalf of the Trust and transfer Shares pursuant to applicable
law; (11) set record dates for the determination of Shareholders
with respect to various matters, in the manner provided in Article
V, Section 4 of this Declaration of Trust; (12) declare and pay
dividends and distributions to Shareholders from the Trust Property,
in accordance with this Declaration of Trust and the By-Laws; (13)
establish, designate and redesignate from time to time, in accordance
with the provisions of Article III, Section 6 hereof, any Series or
Class of the Trust or of a Series; (14) hire personnel as staff for
the Board of Trustees or, for those Trustees who are not Interested
Persons of the Trust, the Investment Adviser, or the Principal
Underwriter,
set the compensation to be paid by the Trust to such personnel,
exercise
exclusive supervision of such personnel, and remove one or more
of such
personnel, at the discretion of the Board of Trustees; (15) retain
special
counsel, other experts and/or consultants for the Board of Trustees,
for
those Trustees who are not Interested Persons of the Trust, the
Investment Adviser, or the Principal Underwriter, and/or for one or
more of the committees of the Board of Trustees, set the compensation
to be paid by the Trust to
such special counsel, other experts and/or consultants, and remove
one or more of such special counsel, other experts and/or consultants,
at the discretion of the Board of Trustees; (16) engage in and
prosecute, defend, compromise, abandon, or adjust, by arbitration,
or otherwise, any actions, suits, proceedings, disputes, claims,
and demands relating to the Trust, and out of the assets of the
Trust to pay or to satisfy any debts, claims or expenses incurred
in connection therewith, including those of litigation, and such
power shall include, without limitation, the power of the Trustees,
or any appropriate committee thereof, in the exercise of their or
its good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise,
brought by any person, including a shareholder in its own name
or in the name of the Trust, whether or not the Trust or any of
the Trustees may be named individually therein or the subject
matter arises by reason of business for or on behalf of the Trust;
and (17) in general delegate such authority as it considers desirable
to any Trustee or officer of the Trust, to any committee of the Trust,
to any agent or employee of the Trust or to any custodian, transfer,
dividend disbursing, shareholder servicing agent, Principal
Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section
3(a) are without prejudice to any other powers of the Board
of Trustees set forth in this Declaration of Trust and the
By-Laws. Any determination as to what is in the best interests
of the Trust or any Series or Class thereof and its Shareholders
made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust,
the presumption shall be in favor of a
grant of power to the Board of Trustees.
The Trustees shall be subject to the same fiduciary duties to
which the directors of a Delaware corporation would be subject
if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were
directors of such Delaware corporation, and such modified duties
shall replace any fiduciary duties to which the Trustees would
otherwise be subject. Without limiting the generality of the
foregoing, all actions and omissions of the Trustees shall be
evaluated under the doctrine commonly referred to as the "business
judgment rule," as defined and developed under Delaware law, to the
same
extent that the same actions or omissions of directors of a Delaware
corporation in a substantially similar circumstance would be
evaluated under such doctrine. Notwithstanding the foregoing,
the provisions of this Declaration of Trust and the By-Laws, to
the extent that they restrict or eliminate the duties (including
fiduciary duties) and liabilities relating thereto of a Trustee
otherwise applicable under the foregoing standard or otherwise
existing at law or in equity, are agreed by each Shareholder
and the Trust to replace such other duties and liabilities of
such Trustee.
(b) Other Business Interests. The Trustees shall devote to
the affairs of the Trust (including every Series thereof) such
time as may be necessary for the proper performance of their
duties hereunder, but neither the Trustees nor the officers,
directors, shareholders, partners or employees of the Trustees,
if any, shall be expected to devote their full time to the
performance of such duties. The Trustees, or any Affiliate,
shareholder, officer, director, partner or employee thereof,
or any Person owning a legal or beneficial interest therein,
may engage in, or possess an interest in, any business or
venture other than the Trust or any Series thereof, of
any nature and description, independently or with or for the
account of others. None of the
Trust, any Series thereof or any Shareholder shall have the
right to participate or share in such other business or venture
or any profit or compensation derived therefrom.
(c) Quorum and Required Vote. At all meetings of the Board
of Trustees, a majority of the Board of Trustees then in office
shall be present in person in order to constitute a quorum for
the transaction of business. A meeting at which a quorum is
initially present may continue to transact business notwithstanding
the departure of Trustees from the meeting, if any action taken
is approved by at least a majority of the required quorum for that
meeting. Subject to Article III, Sections 1 and 6 of the By-Laws
and except as otherwise provided herein or required by applicable
law, the vote of not less than a majority of the Trustees present
at a meeting at which a quorum is present shall be the act of the
Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to the
provisions of Article III, Section 6 hereof, the Trustees or an
authorized officer of the Trust shall pay or cause to be paid out
of the principal or income of the Trust or any particular Series
or Class thereof, or partly out of the principal and partly out of
the income of the Trust or any particular Series or Class thereof,
and charge or allocate the same to, between or among such one or
more of the Series or Classes that may be established or designated
pursuant to Article III, Section 6 hereof, as the Trustees or such
officer deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or
operation of the Trust or a particular Series or Class thereof,
or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses, fees,
charges, taxes and liabilities associated with the services of
the Trust's officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, sub-custodian, transfer
agent, dividend disbursing agent, shareholder
servicing agent, and such other agents or independent contractors
and such other expenses, fees, charges, taxes and liabilities as the
Board of Trustees may deem necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board of
Trustees shall have the power, as frequently as it may determine,
to cause any Shareholder to pay directly, in advance or arrears,
an amount fixed from time to time by the Board of Trustees or an
officer of the Trust for charges of the Trust's custodian or transfer,
dividend disbursing, shareholder servicing or similar agent-which
are not customarily charged generally to the Trust, a Series or a
Class, where such services are provided to such Shareholder
individually, rather than to all Shareholders collectively, by
setting off such amount due from such Shareholder from the amount
of (i) declared but unpaid dividends or distributions owed such
Shareholder, or (ii) proceeds from the redemption by the Trust
of Shares from such Shareholder pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all
of the Trust Property shall
at all times be vested in the Trust, except that the Board of
Trustees shall have the power to cause legal title to any Trust
Property to be held by or in the name of any Person as nominee,
on such terms as the Board of Trustees may determine, in accordance
with applicable law. No creditor of any Trustee shall have any
right to obtain possession, or otherwise exercise legal or equitable
remedies with respect to, any Trust Property with respect to any
claim against, or obligation of, such Trustee in its individual capacity
and not related to the Trust or any Series or Class of the Trust.
No Shareholder shall be deemed to have a severable ownership in
any individual asset of the Trust, or belonging to any Series, or
allocable to any Class thereof, or any right of partition or
possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial
interest in the Trust or in assets belonging to the Series (or
allocable to the Class) in which the Shareholder holds Shares.
The Shares shall be personal property giving only the rights
specifically set forth in this Declaration of Trust or the DSTA.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and the
1940 Act, the Board of Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive investment advisory
or investment management services for the Trust or for any Series
thereof with any corporation, trust, association or other organization,
including any Affiliate; and any such contract may contain such other
terms as the Board of Trustees may determine, including without
limitation, delegation of authority to the Investment Adviser to
determine from time to time without prior consultation with the
Board of Trustees what securities and other instruments or property
shall be purchased or otherwise acquired, owned, held, invested or
reinvested in,
sold, exchanged, transferred, mortgaged, pledged, assigned, negotiated,
or otherwise dealt with or disposed of, and what portion, if any, of
the Trust Property shall be held uninvested and to make changes in
the Trust's or a particular Series' investments, or to engage in
such other activities, including administrative services, as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time
to time, contract with any Person, including any Affiliate, appointing
it or them as the exclusive or nonexclusive placement agent, distributor
or Principal Underwriter for the Shares of the Trust or one or more of
the Series or Classes thereof, or for other securities or financial
instruments to be issued by the Trust, or appointing it or them to
act as the administrator, fund accountant or accounting agent,
custodian, transfer agent, dividend disbursing agent and/or shareholder
servicing agent for the Trust or one or more of the Series or Classes
thereof.
(c) The Board of Trustees is further empowered, at any time and
from time to time, to contract with any Persons, including any
Affiliates, to provide such other services to the Trust or one or
more of its Series, as the Board of Trustees determines to be in
the best interests of the Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances shall affect
the validity of any of the contracts provided for in this Article
IV, Section 7, or disqualify any Shareholder, Trustee, employee or
officer of the Trust from voting upon or executing the same, or
create any liability or accountability to the Trust, any Series
thereof or the Shareholders, provided that the establishment of
and performance of each such contract is permissible under the
1940 Act, and provided further that such Person is authorized to
vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or
for any Person, or for any parent or Affiliate of any Person,
with which any type of service contract provided for in this
Article IV, Section 7 may have been or may hereafter be made,
or that any such Person, or any
parent or Affiliate thereof, is a Shareholder or has an interest
in the
Trust, or
(ii) the fact that any Person with which any type of service
contract provided for in this Article IV, Section 7 may have been
or may hereafter be made also has such a service contract with one
or more other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7 is required to
comply with this Declaration of Trust, the By-Laws, the 1940 Act,
other applicable law and any stipulation by resolution of the Board
of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article
III, Section 6 hereof, the Shareholders shall have the power to vote
only (i) on such matters required by this Declaration of Trust, the
By-Laws, the 1940 Act, other applicable law and any registration
statement of the Trust filed with the Commission, the registration
of which is effective; and (ii) on such other matters as the Board
of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record
date established pursuant to Section
4 of this Article V) of each Share shall be entitled to one vote
for each full Share, and a fractional vote for each fractional Share.
Shareholders shall not be entitled to cumulative voting in the
election of Trustees or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares entitled to
vote at a Shareholders' meeting, which are present in person or
represented by proxy, shall constitute a quorum at the Shareholders'
meeting, except when a larger quorum is required by this Declaration
of Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares are listed for trading, in
which case such quorum shall comply with such requirements.
When a separate vote by one or more Series or Classes is required,
forty percent (40%) of the outstanding Shares of each such Series
or Class entitled to vote at a Shareholders' meeting of such
Series or Class, which are present in person or represented by
proxy, shall constitute a quorum at the Shareholders' meeting
of such Series or Class, except when a larger quorum is required
by this Declaration of Trust, the By-Laws, applicable law or the
requirements of any securities exchange on which Shares of such
Series or Class are listed for trading, in
which case such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III, Section 6(d),
when a quorum is present at any meeting, a majority of the votes
cast shall decide any questions and a plurality
shall elect a Trustee, except when a larger vote is required by
any provision of this Declaration of Trust or the By-Laws or by
applicable law. Pursuant to Article III, Section 6(d) hereof,
where a separate vote by Series and, if applicable, by Class is
required, the preceding sentence shall apply to such separate votes
by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes
present at a Shareholders' meeting; abstentions and broker non-votes
will not be treated as votes cast at such meeting. Abstentions
and broker non-votes, therefore (i) will be included for purposes
of determining whether a quorum is present; and (ii) will have no
effect on proposals that require a plurality for approval, or on
proposals requiring an affirmative vote of a majority of votes cast
for approval.
Section 3. Shareholder Action by Written Consent Without a
Meeting. Any action which may be taken at any meeting of Shareholders
may be taken without a meeting if a consent or consents in writing
setting forth the action so taken is or are signed by the holders of
a majority of the Shares entitled to vote on such action (or such
different proportion thereof as shall be required by law, the
Declaration of Trust or the By-Laws for approval of such action)
and is or are received by the secretary of the Trust either: (i)
by the date set by resolution of the
Board of Trustees for the shareholder vote on such action; or (ii)
if no date is set by resolution of the Board, within 30 days after
the record date for such action as determined by reference to Article
V, Section 4(b) hereof. The written consent for any such action may
be executed in one or more counterparts, each of which shall be deemed
an original, and all of which when taken together shall constitute one
and the same instrument. A consent transmitted by electronic
transmission
(as defined in the DSTA) by a Shareholder or by a Person or Persons
authorized to act for a Shareholder shall be deemed to be written and
signed for purposes of this Section. All such consents shall be filed
with the secretary of the Trust and shall be maintained in the Trust's
records. Any Shareholder that has given a written consent or the
Shareholder's proxyholder or a personal representative of the
Shareholder or its respective proxyholder may revoke the consent
by a writing received by the secretary of the Trust either: (i)
before the date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date for such
action as determined by reference to Article V, Section 4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice
of, and to vote at, any meeting of Shareholders, the Board of Trustees
may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board of Trustees, and which record date shall not be more than one
hundred and twenty (120) days nor less than ten (10) days before the
date of any such meeting. A determination of Shareholders of record
entitled to notice of or to vote at a meeting of Shareholders shall
apply to any adjournment of the meeting; provided, however, that
the Board of Trustees may fix a new record date for the adjourned
meeting and shall fix a new record date for any meeting that is
adjourned for more than one hundred and eighty (180) days from
the record date set for the original meeting. For purposes of
determining the Shareholders entitled to vote on any action
without a meeting, the Board of Trustees may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than thirty
(30) days after the date upon which the resolution fixing the
record date is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall be
at the close of business on the day next preceding the day on
which notice is given or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held.
(ii) the record date for determining Shareholders entitled
to vote on any action by consent in writing without a meeting
of Shareholders, (1) when no prior action by the Board of Trustees
has been taken, shall be the day on which the first signed
written consent setting forth the action taken is delivered to
the Trust, or
(2) when prior action of the Board of Trustees has been taken,
shall be at the close of business on the day on which the Board
of Trustees adopts the resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the
Trust or any Series or Class thereof who are entitled to receive
payment of any dividend or of any other distribution of assets of
the Trust or any Series or Class thereof (other than in connection
with a dissolution
of the Trust or a Series, a merger, consolidation, conversion,
reorganization, or any other transactions, in each case that is
governed by Article VIII of the Declaration of Trust), the Board
of Trustees may:
(i) from time to time fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be more
than sixty (60) days before the date for the payment of such
dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates and
related payment dates at periodic intervals of any duration
for the payment of such dividend and/or such other distribution;
and/or
(iii) delegate to an appropriate officer or officers of the
Trust the determination of such periodic record and/or payments
dates with respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding the Board
of Trustees from setting different record dates for different
Series or Classes.
Section 5. Additional Provisions. The By-Laws may include
further provisions for
Shareholders' votes, meetings and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income
and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of
Trustees shall have the power to determine from time to time
the offering price for authorized, but unissued, Shares of the
Trust or any Series or Class thereof, respectively, that shall
yield to the Trust or such Series or Class not less than the
net asset value thereof, in addition to any amount of applicable
sales charge to be paid to the Principal Underwriter or the selling
broker or dealer in connection with the sale of such Shares, at
which price the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any other
requirements or limitations of the
1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of
Trustees may, subject to the 1940 Act, prescribe (or delegate
to any officer of the Trust or any other Person the right to
prescribe) such bases and time (including any methodology or
plan) for determining the net asset value per Share of the Trust
or any Series or Class thereof, or net income attributable to
the Shares of the Trust or any Series or Class thereof or the
declaration and payment of dividends
and distributions on the Shares of the Trust or any Series or
Class thereof, and the method of determining the Shareholders
to whom dividends and distributions are payable, as it may
deem necessary or desirable, and such dividends and distributions
may vary between the Classes to reflect differing allocations of
the expenses of the Trust between such Classes to such extent and
for such purposes as the Trustees may deem appropriate. Without
limiting the generality of the foregoing, but subject to applicable
federal law, including the 1940 Act, any dividend or distribution
may be paid in cash and/or securities or other property, and the
composition of any such distribution shall be determined by the
Trustees (or by any officer of the Trust or any other Person to whom
such authority has been delegated by the Trustees) and may be
different among Shareholders including differences among Shareholders
of the same Series or Class.
(c) The Shareholders of the Trust or any Series or Class, if any,
shall be entitled to receive dividends and distributions, when, if
and as declared by the Board of Trustees with respect thereto,
provided that with respect to Classes, such dividends and distributions
shall comply with the 1940 Act. The right of Shareholders to receive
dividends or other distributions on Shares of any Class may be set
forth in a plan adopted by the Board of Trustees and amended from
time to time pursuant to the 1940 Act. No Share shall have any
priority or preference over any other Share of the Trust with respect
to dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 1 hereof; provided however,
that
(i) if the Shares of the Trust are divided into Series thereof,
no Share of a particular Series shall have any priority or preference
over any other Share of the same Series with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust or of such Series made
pursuant to Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes thereof,
no Share of a particular Class shall have any priority or preference
over any other Share of the same Class with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to Article
VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes thereof,
no Share of a particular Class of such Series shall have any priority
or preference over any other Share of the same Class of such Series
with respect to dividends or distributions paid in the ordinary course
of business or distributions upon dissolution of such Series made
pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular Class of the Trust, a
particular Series, or a particular Class of a Series from the Trust
Property held with respect to the Trust, such Series or such Class,
respectively, according to the number of Shares of the Trust, such
Series or such Class held of record by such Shareholders on the record
date for any dividend or distribution; provided however, that
(iv) if the Shares of the Trust are divided into Series thereof,
all dividends and distributions from the Trust Property and, if
applicable, held with respect to such Series, shall be distributed
to each Series thereof according to the net asset value computed
for such Series and within such particular Series, shall be
distributed ratably to the Shareholders of such Series according
to the number of Shares of such Series held of record by such
Shareholders on the record date for any dividend or distribution;
and
(v) if the Shares of the Trust or of a Series are divided into
Classes thereof, all dividends and distributions from the Trust
Property and, if applicable, held with respect to the Trust or
such Series, shall be distributed to each Class thereof according
to the net asset value computed for such Class and within such
particular Class, shall be distributed ratably to the Shareholders
of such Class according to the number of Shares of such Class
held of record by such Shareholders on the record date for any
dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set aside
out of any funds of the Trust, or the applicable Series thereof,
available for dividends such sum or sums as the Board of Trustees
may from time to time, in its absolute discretion, think proper
as a reserve fund to
meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Trust, or any Series thereof,
or for such other lawful purpose as the Board of Trustees shall
deem to be in the best interests of the Trust, or the applicable
Series, as the case may be, and the Board of Trustees may abolish
any such reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the Trust relating
to the Shares, as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption upon the presentation of a proper
instrument of transfer together with a request directed to the
Trust or a Person designated by the Trust that the Trust purchase
such Shares and/or in accordance with such other procedures for
redemption as the Board of Trustees may from time to time authorize.
If certificates have been issued to a Shareholder, any request for
redemption by such Shareholder must be accompanied by surrender of
any outstanding
certificate or certificates for such Shares in form for transfer,
together with such proof of the authenticity of signatures as may
reasonably be required on such Shares and accompanied by proper
stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value
thereof as determined by the Trustees (or by such Person to whom
such determination has been delegated) (excluding any applicable
redemption fee or sales load), in accordance with this Declaration
of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board
of Trustees, or such officer or officers as it may duly authorize
in its complete discretion, be made in kind or partially in cash
and partially in kind. In case of any payment in kind, the Board
of Trustees, or its authorized officers, shall have absolute
discretion as to what security or securities of the Trust or the
applicable Series shall be distributed in kind and the amount of
the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing
the then current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so distributed in
kind shall receive cash to the extent permitted by the 1940 Act.
Shareholders shall bear the expenses of in-kind transactions,
including, but not limited to, transfer agency fees, custodian
fees and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall
be made by the Trust to the Shareholder within seven days after
the date on which the redemption request is received in proper
form and/or such other procedures authorized by the Board of
Trustees are complied with; provided, however, that if payment
shall be made other than exclusively in cash, any securities to
be delivered as part of such payment shall be delivered as promptly
as any necessary transfers of such securities on the books of the
several corporations or other Person whose securities are to be
delivered practicably can be made, which may not necessarily
occur within such seven-day period. In no case shall the Trust
be liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part
of any payment in kind.
(d) The obligations of the Trust set forth in this Section
2 are subject to the provision that such obligations may be
suspended or postponed by the Board of Trustees (1) during any
time the New York Stock Exchange (the "Exchange") is closed for
other than weekends or holidays; (2) if permitted by the rules
of the Commission, during periods when trading on the Exchange
is restricted; or (3) during any National Financial Emergency.
The Board of Trustees may, in its discretion, declare that the
suspension relating to a National Financial Emergency shall
terminate, as the case may be, on the first business day on
which the Exchange shall have reopened or the period specified
above shall have expired (as to which, in the absence of an official
ruling by the Commission, the determination of the Board of Trustees
shall be conclusive). In the case of a suspension of the right of
redemption as provided herein, a Shareholder may either withdraw the
request for redemption or receive payment based on the net asset
value per Share next determined after the termination of such
suspension, less any fees imposed on such redemption.
(e) The right of any Shareholder of the Trust or any Series
or Class thereof to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed, except the right of such Shareholder
to receive payment for such Shares, shall cease at the time the
purchase price of such Shares shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. At the
option of the Board of
Trustees the Trust may, from time to time, without the vote of the
Shareholders, but subject to
the 1940 Act, redeem Shares or authorize the closing of any Shareholder
account, subject to such conditions and for such reasons as may be
established from time to time by the Board of
Trustees, including, without limitation, (i) the determination of the
Trustees that direct or indirect ownership of Shares of the Trust or
any Series has or may become concentrated in such Shareholder to an
extent that would disqualify any Series as a regulated investment
company under the Code (or any successor statute thereto), (ii) the
failure of a Shareholder to supply a tax identification number if
required to do so, or to have the minimum investment required (which
may vary by Series or Class), (iii) if the Share activity of the
account or ownership of Shares by a particular Shareholder is deemed
by the Trustees either to affect adversely the management of
the Trust or any Series or Class or not to be in the best interests of
the remaining Shareholders of the Trust or any Series or Class or (iv)
the failure of a Shareholder to pay when due for the purchase of Shares
issued to him. Any such redemption shall be effected at the redemption
price and in the manner provided in this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable in
accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who
is or was a Trustee, officer, employee or other agent of the Trust or
is or was serving at the request of the Trust as a trustee, director,
officer, employee or other agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise; "Proceeding"
means any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative; and "Expenses" include
without limitation attorneys' fees and any expenses of establishing a
right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder
for any act or omission that constitutes a bad faith violation of the
implied contractual covenant of good faith and fair dealing, for such
Agent's own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the
fullest extent that limitations on the liability of Agents are
permitted by the DSTA, the Agents shall not be responsible or
liable in any event for any act or omission of any other Agent
of the Trust or any Investment Adviser or Principal Underwriter
of the Trust.
(d) No Agent, when acting in its respective capacity as such,
shall be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in subsections (b) and (c)
of this Section 1, for any act, omission or obligation of the
Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall,
in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account
or other records of the Trust, upon an opinion of counsel, or upon
reports made to the Trust by any of its officers or employees or by
the Investment Adviser, the Principal Underwriter, any other Agent,
selected dealers, accountants, appraisers or other experts or
consultants, regardless of whether such counsel or expert may also
be a Trustee, as to matters the Trustee, officer or employee of the
Trust reasonably believes are within such Person's professional or
expert competence. The officers and Trustees may obtain the advice
of counsel or other experts with respect to the meaning and operation
of this Declaration of Trust, the By-Laws, applicable law and their
respective duties as officers or Trustees. No such officer or Trustee
shall be liable for any act or omission in accordance with such advice,
records and/or reports and no inference concerning liability shall
arise from a failure to follow such advice, records and/or reports.
The officers and Trustees shall not be required to give any bond
hereunder, nor any surety if a bond is required by applicable law.
(f) The failure to make timely collection of dividends or
interest, or to take timely action with respect to entitlements,
on the Trust's securities issued in emerging countries, shall not
be deemed to be negligence or other fault on the part of any Agent,
and no Agent shall have any liability for such failure or for any
loss or damage resulting from the imposition by any government of
exchange control restrictions which might affect the liquidity of
the Trust's assets or from any war or political act of any foreign
government to which such assets might be exposed, except, in the
case of a Trustee or officer, for liability resulting from such
Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article
applies to events occurring at the time a Person serves as an
Agent whether or not such Person is an Agent at the time of any
Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely
affect any right or protection of an Agent that exists at the
time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify,
out of Trust Property, to the fullest extent permitted under
applicable law, any Person who was or is a party, potential
party or non-party witness or is threatened to be made a party,
potential party or non- party witness to any Proceeding by
reason of the fact that such Person is or was an Agent of the
Trust, against Expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
Proceeding if such Person acted in good faith or in the case of
a criminal proceeding, had no reasonable cause to believe the
conduct of such Person was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or plea of nolo contendere or its equivalent
shall not of itself create a presumption that the Person did not
act in good faith or that the Person had reasonable cause to believe
that the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision
to the contrary contained herein, there shall be no right to
indemnification for any liability arising by reason of the Agent's
Disqualifying Conduct. In respect of any claim, issue or matter as
to which that Person shall have been adjudged to be liable in the
performance of that Person's duty
to the Trust or the Shareholders, indemnification shall be made only
to the extent that the court in which that action was brought shall
determine, upon application or otherwise, that in view of all the
circumstances of the case, that Person was not liable by reason
of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article
shall be made by the Trust if authorized in the specific case on
a determination that indemnification of the Agent is proper in
the circumstances by (i) a final decision on the merits by a
court or other body before whom the proceeding was brought that
the Agent was not liable by reason of Disqualifying Conduct
(including, but not limited to, dismissal of either a court
action or an administrative proceeding against the Agent for
insufficiency of evidence of any Disqualifying Conduct) or, (ii)
in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the Agent was not liable
by reason of Disqualifying Conduct, by (1) the
vote of a majority of a quorum of the Trustees who are not (x)
"interested persons" of the Trust as defined in Section 2(a)(19)
of the 1940 Act, (y) parties to the proceeding, or (z) parties
who have any economic or other interest in connection with such
specific case (the "disinterested, non-party Trustees"); or (2)
by independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the
final disposition of the Proceeding on receipt of an undertaking
by or on behalf of the Agent to repay the amount of the advance if
it shall be determined ultimately that the Agent is not entitled to
be indemnified as authorized in this Article; provided, that at
least one of the following conditions for the advancement of expenses
is met: (i) the Agent shall provide a security for his undertaking,
(ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the
disinterested, non-party Trustees of the Trust, or an independent
legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial- type
inquiry), that there is reason to believe that the Agent ultimately
will be found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in this Article
shall affect
any right to indemnification to which Persons other than Trustees and
officers of the Trust or any subsidiary thereof may be entitled by
contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does
not apply to any Proceeding against any trustee, investment manager
or other fiduciary of an employee benefit plan in that Person's
capacity as such, even though that Person may also be an Agent of
the Trust as defined in Section 1 of this Article. Nothing contained
in this Article shall limit any right to indemnification to which
such a trustee, investment manager, or other fiduciary may be
entitled by contract or otherwise which shall be enforceable to
the extent permitted by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding any other
provision in this Declaration of Trust to the contrary, any amount
of indemnification and any advancement of expenses that any Agent
is entitled to be paid under Section 2 shall be deemed to be joint
and several obligations of the Trust and each Series, and the assets
of the Trust and each Series shall be subject to the claims of any
Agent therefor under this Article VII; provided that any such
liability, expense or obligation may be allocated and charged by
the Board of Trustees between
or among the Trust and/or any one or more Series (and Classes) in
such manner as the Board of
Trustees in its sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted by
applicable law, the Board of Trustees shall have the authority
to purchase with Trust Property, insurance for liability and for
all Expenses reasonably incurred or paid or expected to be paid
by an Agent in connection with any Proceeding in which such Agent
becomes involved by virtue of such Agent's actions, or omissions
to act, in its capacity or former capacity with the Trust, whether
or not the Trust would have the power to indemnify such Agent
against such liability.
Section 4. Derivative Actions. In addition to the requirements
set forth in Section
3816 of the DSTA, a Shareholder or Shareholders may bring a derivative
action on behalf of the
Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Board of Trustees to bring the subject action unless an
effort to cause the Board of Trustees to bring such an action is
not likely to succeed. For purposes of this Section 4, a demand on
the Board of Trustees shall only be deemed not likely to succeed
and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of
such action, is composed of Trustees who are not "independent
trustees" (as such term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of
this Section 4, Shareholders eligible to bring such derivative
action under the DSTA who hold at least 10% of the outstanding
Shares of the Trust, or 10% of the outstanding Shares of the
Series or Class to which such action relates, shall join in the
request for the Board of Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of
this Section 4, the Board of Trustees must be afforded a
reasonable amount of time to consider such Shareholder request
and to investigate the basis of such claim. The Board of
Trustees shall be entitled to retain counsel or other advisors
in considering the merits of the request and shall require an
undertaking by the Shareholders making such request to reimburse
the Trust for the expense of any such advisors in the event that
the Board of Trustees determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate
a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who
are "independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions (collectively,
"claims") that under applicable law must be brought as derivative
claims, each Shareholder of the Trust or any Series or Class thereof
agrees that any claim that affects all Shareholders of a Series or
Class equally, that is, proportionately based on their number of
Shares in such Series or Class, must be brought as a derivative
claim subject to this Section 4 irrespective of whether such
claim involves a violation of the Shareholders' rights under
this Declaration of Trust or any other alleged violation of
contractual or individual rights that might otherwise give
rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial. In
accordance with Section 3804(e) of the DSTA any suit, action
or proceeding brought by or in the right of any Shareholder
or any person claiming any interest in any Shares seeking to
enforce any provision of, or based on any matter arising out
of, or in connection with, this Declaration of Trust or the
Trust, any Series or Class or any Shares, including any claim
of any nature against the Trust, any Series or Class, the
Trustees or officers of the Trust, shall be brought exclusively
in the Court of Chancery of the State of Delaware to the extent
there is subject matter jurisdiction in such court for the claims
asserted or, if not, then in the Superior Court of the State of
Delaware, and all Shareholders and other such Persons hereby
irrevocably consent to the jurisdiction of such courts (and the
appropriate appellate courts therefrom) in any such suit, action
or proceeding and irrevocably
waive, to the fullest extent permitted by law, any objection they
may make now or hereafter have to the laying of the venue of any
such suit, action or proceeding in such court or that any such suit,
action or proceeding brought in any such court has been brought in
an inconvenient forum and further, in connection with any such suit,
action, or proceeding brought in the Superior Court in the State of
Delaware, all Shareholders and all other such Persons irrevocably
waive the right to a trial by jury to the fullest extent permitted
by law. All Shareholders and other such Persons agree that service
of summons, complaint or other process in connection with any
proceedings may be made by registered or certified mail or by
overnight courier addressed to such Person at the address shown
on the books and records of the Trust for such Person or at the
address of the Person shown on the books and records of the Trust
with respect to the Shares that such Person claims an interest in.
Service of process in any such suit, action or proceeding against
the Trust or any Trustee or officer of the Trust may be made at the
address of the Trust's registered agent
in the State of Delaware. Any service so made shall be effective as
if personally made in the
State of Delaware.
ARTICLE VIII CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each
Series shall have
perpetual existence, except that the Trust (or a particular Series)
shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders
of not less than a majority of the Shares of the Trust cast, or (ii)
at the discretion of the Board of Trustees either
(A) at any time there are no Shares outstanding of the Trust, or (B)
upon prior written notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series cast,
or (ii) at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of such Series, or (B) upon
prior written notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon
the occurrence of a dissolution or termination event pursuant to
any other provision of this Declaration of Trust (including Article
VIII, Section 2) or the DSTA; or
the Trust.
(d) With respect to any Series, upon any event that causes the
dissolution of
Upon dissolution of the Trust (or a particular Series, as the case
may be), the Board of Trustees shall (in accordance with Section 3808
of the DSTA) pay or make reasonable provision to pay all claims and
obligations of the Trust and/or each Series (or the particular Series,
as the case may be), including, without limitation, all contingent,
conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations which are known to the Trust, but for
which the identity of the claimant is unknown. If there are sufficient
assets held with respect to the Trust and/or each Series of the Trust
(or the particular Series, as the case may be), such claims and
obligations shall be paid in full and any such provisions for payment
shall be made in
full. If there are insufficient assets held with respect to the Trust
and/or each Series of the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid or provided for
according to their priority and, among claims and obligations of equal
priority, ratably to the extent of assets available therefor. Any
remaining assets (including, without limitation, cash, securities or
any combination thereof) held with respect to the Trust and/or each
Series of the Trust (or the particular Series, as the case may be)
shall be distributed to the Shareholders of the Trust and/or each
Series of the Trust (or the particular Series, as the case
may be) ratably according to the number of Shares of the Trust and/or
such Series thereof (or the particular Series, as the case may be)
held of record by the several Shareholders on the date for such
dissolution distribution; provided, however, that if the Shares of
the Trust or a Series are divided into Classes thereof, any remaining
assets (including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust or such Series,
as applicable, shall be distributed to each Class of the Trust or such
Series according to the net asset value computed for such Class and
within
such particular Class, shall be distributed ratably to the Shareholders
of such Class according to the number of Shares of such Class held of
record by the several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance with
Section 3808 of the DSTA and its termination, any one (1) Trustee
shall
execute, and cause to be filed, a certificate of cancellation, with
the office of the Secretary of
State of the State of Delaware in accordance with the provisions of
Section 3810 of the DSTA.
In connection with the dissolution and liquidation of the Trust or
the termination of any Series or any Class, the Trustees may provide
for the establishment and utilization of a liquidating trust or
similar vehicle.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger
or consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into
one or more statutory trusts or "other business entities" (as defined
in Section 3801 of the DSTA) formed or organized or existing under
the laws of the State of Delaware or any other state of the United
States or any foreign country or other foreign jurisdiction. Any
such merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided
however, that the Board of Trustees shall provide at least thirty
(30) days' prior written notice to the Shareholders of such merger
or consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with
this Section 2(a) may, without a Shareholder vote unless required
by the 1940 Act or the requirements of any securities exchange
on which Shares
are listed for trading, effect any amendment to this Declaration
of Trust or the By-Laws or effect the adoption of a new governing
instrument if the Trust is the surviving or resulting statutory
trust in the merger or consolidation, which amendment or new governing
instrument shall be
effective at the effective time or date of the merger or consolidation.
In all respects not governed by the DSTA, the 1940 Act, other applicable
law or the requirements of any securities exchange on which Shares are
listed for trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to accomplish
a merger or consolidation,
including the power to create one or more separate statutory trusts to
which all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion of
Shares into beneficial interests in such separate statutory trust or
trusts. In connection with any merger or consolidation, if the Trust
is the surviving or resulting statutory
trust, any one (1) Trustee shall execute, and cause to be filed, a
certificate of merger or consolidation in accordance with Section
3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of
the Trustees, may cause (i) the Trust to convert to an "other business
entity" (as defined in Section 3801 of the DSTA) formed or organized
under the laws of the State of Delaware as permitted pursuant to
Section 3821 of the DSTA; (ii) the Shares of the Trust or any Series
or Class to be converted into beneficial interests in another statutory
trust (or series or class thereof) created pursuant to this Section 2
of this Article VIII, or (iii) the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by
law. Any such statutory conversion, Share conversion
or Share exchange shall not require the vote of the Shareholders
unless such vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at least thirty (30) days'
prior written notice to the Shareholders of the Trust of any
conversion of Shares of the
Trust pursuant to Subsections (b)(i) or (b)(ii) of this Section 2
or exchange of Shares of the Trust pursuant to Subsection (b)(iii)
of this Section 2, and at least thirty (30) days' prior written
notice to the Shareholders of a particular Series or Class of any
conversion of Shares of such Series or Class pursuant to Subsection
(b)(ii) of this Section 2 or exchange of Shares of such Series or
Class pursuant to Subsection (b)(iii) of this Section 2. In all
respects not governed by the DSTA, the 1940 Act, other applicable
law or the requirements of any securities exchange on which Shares
are listed for trading, the Board of Trustees shall have the power
to prescribe additional procedures necessary or appropriate to
accomplish a statutory conversion, Share conversion or Share exchange,
including the power to create one or more separate statutory trusts
to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to
provide for the conversion of Shares of the Trust or any Series or
Class thereof into beneficial interests in such separate statutory
trust or trusts (or series or class thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority
of the Trustees, may cause the Trust to sell, convey and transfer all
or substantially all of the assets of the Trust ("sale of Trust assets")
or all or substantially all of the assets associated with any one or
more Series ("sale of such Series' assets") or any one or more Classes
("sale of such Class's assets"), to another trust, statutory trust,
partnership, limited partnership, limited liability company, corporation
or other association organized under the laws of any state, or to one
or more separate series or class thereof, or to the Trust to be held
as assets associated with one or more other Series or Classes of the
Trust, in exchange for cash, shares or other securities (including,
without limitation, in the case of a transfer to another Series or
Class of the Trust, Shares of such other Series or Class) with such
sale, conveyance and transfer either (a) being made subject to, or
with the assumption by the transferee of, the liabilities associated
with the Trust or the liabilities associated with the Series or Class
the assets of which are so transferred,
as applicable, or (b) not being made subject to, or not with the
assumption of, such liabilities.
Any such sale, conveyance and transfer shall not require the vote
of the Shareholders unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall provide at least
thirty (30) days' prior written notice to the Shareholders of the
Trust of any such sale of Trust assets, at least thirty (30) days'
prior written notice to the Shareholders of a particular
Series of any sale of such Series' assets, and at least thirty (30)
days' prior written notice to the Shareholders of a particular Class
of any sale of such Class's assets. Following such sale of Trust
assets, the Board of Trustees shall distribute such cash, shares or
other securities ratably among the Shareholders of the Trust (giving
due effect to the assets and liabilities associated
with and any other differences among the various Series the assets
associated with which have been so sold, conveyed and transferred,
and due effect to the differences among the various Classes within
each such Series). Following a sale of such Series' assets, the
Board of Trustees shall distribute such cash, shares or other
securities ratably among the Shareholders of such Series (giving
due effect to the differences among the various Classes within
each such Series).
Following a sale of such Class's assets, the Board of Trustees
shall distribute such cash, shares or other securities ratably
among the Shareholders of such Class. If all of the assets of
the Trust have been so sold, conveyed and transferred, the Trust
shall be dissolved; and if all of the assets of a Series or Class
have been so sold, conveyed and transferred, such Series and the
Classes thereof, or such Class, shall be dissolved. In all respects
not governed by the DSTA, the 1940
Act or other applicable law, the Board of Trustees shall have the power
to prescribe additional procedures necessary or appropriate to
accomplish such sale, conveyance and transfer, including the power
to create one or more separate statutory trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust may
be transferred and to provide for the conversion of Shares into
beneficial interests in such separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940
Act, the Board of Trustees, by vote of a majority of the Trustees,
and without a Shareholder vote, may cause the Trust or any one or
more Series to convert to a master feeder structure (a structure
in which a feeder fund invests all of its assets in a master fund,
rather than making investments in securities directly) and thereby
cause existing Series of the Trust to either become feeders in a
master fund, or to become master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights.
No Shareholder shall be entitled, as a matter of right, to
relief as a dissenting Shareholder in respect of any proposal
or action involving the Trust or any Series or any Class thereof.
ARTICLE IX AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust
may be restated and/or
amended at any time by an instrument in writing signed by not
less than a majority of the Board of Trustees and, to the extent
required by the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval
of such amendment by the Shareholders in accordance with Article
III, Section 6 hereof and Article V hereof. Any such restatement
and/or amendment hereto shall be effective immediately upon
execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated
and/or amended at any time by the Board of Trustees, without
Shareholder approval, to correct any inaccuracy contained therein.
Any such restatement and/or amendment of the Certificate of Trust
shall be executed by at least one (1) Trustee and shall be effective
immediately upon its filing with the office of the Secretary of
State of the State of Delaware or upon such future date as may be
stated therein.
ARTICLE X MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this
Declaration of Trust and in
any restatement hereof and/or amendment hereto, references to
this instrument, and all expressions of similar effect to
"herein," "hereof" and "hereunder," shall be deemed to refer
to this instrument as so restated and/or amended. Headings
are placed herein for convenience of reference only and shall
not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular
number is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each other,
as applicable. Any references herein to specific sections of the
DSTA, the Code or the 1940 Act shall refer to such sections as
amended from time to time or any successor sections thereof.
This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and
administered according to the laws of the State of Delaware
and the applicable provisions of the 1940 Act and the Code;
provided, that, all matters relating to or
in connection with the conduct of Shareholders' and Trustees'
meetings (excluding, however, the Shareholders' right to vote),
including, without limitation, matters relating to or in connection
with record dates, notices to Shareholders or Trustees, nominations
and elections of Trustees, voting by, and the validity of, Shareholder
proxies, quorum requirements, meeting adjournments, meeting
postponements
and inspectors, which are not specifically addressed in this
Declaration
of Trust, in the By-Laws or in the DSTA (other than DSTA Section
3809), or as to which an ambiguity exists, shall be governed by
the Delaware General Corporation Law, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation, the
Shareholders were shareholders of such Delaware corporation and
the Trustees were directors of such Delaware corporation; provided,
further, however, that there shall not be applicable to the Trust,
the Trustees, the Shareholders or any other Person or to this
Declaration of Trust or the By-Laws (a) the provisions of Sections
3533, 3540 and 3583(a) of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware
(other than the DSTA) pertaining to trusts which relate to or
regulate (i) the filing with any court or governmental body or agency
of trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents
or employees of a trust, (iii) the necessity for obtaining court or
other governmental approval concerning the acquisition, holding or
disposition of real or personal property, (iv) fees or other sums
payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and
expenditures to income or principal, (vi) restrictions or limitations
on the permissible nature, amount or concentration of trust investments
or requirements relating to the titling, storage or other manner of
holding trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the
indemnification, acts or powers of trustees or other Persons,
which are inconsistent with the limitations of liabilities or
authorities and powers of the Trustees or officers of the Trust
set forth or referenced in this Declaration of Trust or the
By-Laws. The Trust shall be a Delaware statutory trust pursuant
to the DSTA, and without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised by
such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940
Act, the Code, the DSTA, or with other applicable laws and
regulations, the conflicting provision shall be deemed not to have
constituted a part of this Declaration of Trust from the time when
such provisions became inconsistent with such laws or regulations;
provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of this Declaration
of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the
Trustees to create hereby a statutory trust pursuant to the DSTA,
and thereby to create the relationship of trustee and beneficial
owners within the meaning of the DSTA between, respectively, the
Trustees and each Shareholder. It is not the intention of the
Trustees to create a general or limited partnership, limited liability
company, joint stock association, corporation, bailment, or any form
of legal relationship other than a statutory trust pursuant to the
DSTA. Nothing in this Declaration of Trust shall be construed to
make the Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
Section 5. Use of the Names "Franklin," "Xxxxxxxxx," "Fiduciary
Trust," and/or "Institutional Fiduciary Trust". The Board of
Trustees expressly agrees and acknowledges that the names "Xxxxxxxx,
" "Xxxxxxxxx," "Fiduciary Trust," and "Institutional Fiduciary Trust"
are the sole property of Franklin Resources, Inc. ("FRI"). FRI has
granted to the Trust a non- exclusive license to use such names as
part of the name of the Trust now and in the future. The Board of
Trustees further expressly agrees and acknowledges that the
non-exclusive license granted herein may be terminated by FRI
if the Trust ceases to use FRI or one of its Affiliates as
Investment Adviser or to use other Affiliates or successors
of FRI for such purposes. In such event, the non-exclusive
license may be revoked by FRI and the Trust shall cease using
the names "Franklin," "Xxxxxxxxx," "Fiduciary Trust," "Institutional
Fiduciary Trust" or any name misleadingly implying a continuing
relationship between the Trust and FRI or any of its Affiliates,
as part of its name unless otherwise consented to by FRI or any
successor to its interests in such names.
The Board of Trustees further understands and agrees that so
long as FRI and/or any future advisory Affiliate of FRI shall
continue to serve as the Trust's Investment Adviser, other
registered open- or closed-end investment companies ("funds")
as may be sponsored or advised by FRI or its Affiliates shall
have the right permanently to adopt and to use the names
"Franklin", "Xxxxxxxxx," "Fiduciary Trust" and/or "Institutional
Fiduciary Trust" in their names and in the names of any series
or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of Xxxxxxxxx Institutional Funds
named below do hereby make and enter into this Declaration of
Trust as of the date first written above.
/s/ Harris J. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
/s/ X. Xxxxxxx Xxxxxx
X. Xxxxxxx Xxxxxx, Trustee /s/ Xxx Xxxxx Xxxxx
Xxx Xxxxx Xxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx., Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, Trustee
/s/ Xxxxxxxxxxx X. Xxxxxxxxxxxxx
Xxxxxxxxxxx X. Xxxxxxxxxxxxx, Trustee
