NAME OF REGISTRANT:
XXXXXXXX FLOATING RATE MASTER TRUST
File No. 811-09869
EXHIBIT ITEM: Copies of any material amendments to the registrant's
charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
XXXXXXXX FLOATING RATE MASTER TRUST
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted November 16,
1999; Amended and Restated Agreement and Declaration of Trust was
adopted on July 2, 2002; Second Amended and Restated Agreement and
Declaration of Trust was adopted as of 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
Article VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 23
Section 1. Determination of Net Asset Value, Net Income and
Distributions 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
Article VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 27
Section 1. Limitation of Liability 27
Section 2. Indemnification 28
Section 3. Insurance 29
Section 4. Derivative Actions 30
Section 5. Jurisdiction and Waiver of Jury Trial 30
Article VIII CERTAIN TRANSACTIONS 31
Section 1. Dissolution of Trust or Series 31
Section 2. Merger or Consolidation; Conversion; Reorganization 32
Section 3. Master Feeder Structure 34
Section 4. Absence of Appraisal or Dissenters' Rights 34
Article IX AMENDMENTS 34
Section 1. Amendments Generally 34
Article X MISCELLANEOUS 35
Section 1. References; Headings; Counterparts 35
Section 2. Applicable Law 35
Section 3. Provisions in Conflict with Law or Regulations 36
Section 4. Statutory Trust Only 36
Section 5. Use of the Names "Franklin," "Xxxxxxxxx,"
"Fiduciary Trust," and/or "Institutional Fiduciary Trust" 36
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXX FLOATING RATE MASTER TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of
this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Xxxxxxxx Xxxxxxxx Rate Master Trust (the "Trust") was formed
on November 16, 1999 under the name "Floating Rate Master 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 November 16,
1999 (the "Original Declaration of Trust"), and the name of the Trust
was changed to "Franklin Floating Rate Master Trust" pursuant to the
filing of a Certificate of Amendment to the Certificate of Trust with
the Office of the Secretary of State of the State of Delaware on
March 21, 2000; and
WHEREAS this Trust has been formed to carry on the business of an
open-end management investment company as defined in the 1940 Act;
and
WHEREAS this Trust is authorized to divide its Shares into two or
more Classes, to issue its Shares in separate Series, to divide
Shares of any Series into two or more Classes and to issue Classes of
the Trust or the Series, if any, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance
with the provisions of the Delaware Statutory Trust Act, as amended
from time to time, and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust may from
time to time acquire in any manner shall be managed and disposed of
upon the following terms and conditions as hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having
become a Trustee of the Trust, and on every Shareholder, by virtue of
having become a Shareholder of the Trust, pursuant to the terms of
this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Xxxxxxxx Xxxxxxxx
Rate Master Trust" and the Board of Trustees shall conduct the
business of the Trust under that name, or any other name as it may
from time to time designate. The Trustees may, without Shareholder
approval, change the name of the Trust or any Series or Class. Any
name change of any Series or Class shall become effective upon
approval by the Trustees of such change or any document (including
any registration statement) reflecting such change, or at such later
time as may be approved by the Trustees. Any name change of the
Trust shall become effective upon the filing of a certificate of
amendment under the DSTA reflecting such change, or at such later
time specified in such certificate of amendment. Any such action
shall have the status of an amendment to this Declaration of Trust.
In the event of any name change, the Trustees shall cause notice to
be given to the affected Shareholders within a reasonable time after
the implementation of such change, which notice will be deemed given
if the changed name is reflected in any registration statement. The
Trust shall constitute a Delaware statutory trust in accordance with
the DSTA.
Section 2. Offices of the Trust. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends
to do business.
Section 3. Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered
office of the Trust are as set forth in the Trust's Certificate of
Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations thereunder, all as adopted or amended from time
to time;
(b) "Affiliate" shall have the same meaning as "affiliated person" as
such term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from
time to time pursuant to Article IV hereof, having the powers and
duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended, restated
or supplemented from time to time in accordance with Article VIII
therein. Such By-Laws may contain any provision not inconsistent
with applicable law or this Declaration of Trust, relating to the
governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the
Trust filed with the office of the Secretary of State of the State of
Delaware as required under the DSTA to form the Trust, as such
certificate shall be amended, restated or supplemented from time to
time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust or of a
Series of the Trust established and designated under and in
accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and the rules
and regulations thereunder, all as adopted or amended from time to
time;
(h) "Commission" shall have the meaning given that term in the 1940
Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C.
3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and Restated
Agreement and Declaration of Trust, as amended, restated or
supplemented from time to time;
(k) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that term in the
1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment
advisory or investment management contract described in Article IV,
Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any part
of any period during (i) which an emergency exists as a result of
which disposal by the Trust of securities or other assets owned by
the Trust is not reasonably practicable; (ii) which it is not
reasonably practicable for the Trust fairly to determine the
net asset value of its assets; or (iii) such other period as the
Commission may by order permit for the protection of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, in each case,
whether domestic or foreign, and a statutory trust or a foreign
statutory or business trust;
(p) "Principal Underwriter" shall have the meaning given that term
in the 1940 Act;
(q) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of
Article III hereof;
(r) "Shares" shall mean the transferable shares of beneficial
interest into which the beneficial interest in the Trust shall be
divided from time to time, and shall include fractional and
whole Shares;
(s) "Shareholder" shall mean a record owner of Shares pursuant to
the By-Laws;
(t) "Trust" shall mean Franklin Floating Rate Master Trust, the
Delaware statutory trust formed under the Original Declaration of
Trust, as amended, and by filing of the Certificate of Trust with
the office of the Secretary of State of the State of Delaware,
and governed by this Declaration of Trust;
(u) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for
the account of the Trust, or one or more of any Series thereof,
including, without limitation, the rights referenced in Article X,
Section 5 hereof; and
(v) "Trustee" or "Trustees" shall mean each Person who signs
this Declaration of Trust as a trustee and all other Persons who may,
from time to time, be duly elected or appointed, qualified and
serving on the Board of Trustees in accordance with the provisions
hereof and the By-Laws, so long as such signatory or other Person
continues in office in accordance with the terms hereof and the
By-Laws. Reference herein to a Trustee or the Trustees shall refer
to such Person or Persons in such Person's or Persons' capacity
as a trustee or trustees hereunder and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a registered management investment company registered
under the 1940 Act, directly, or if one or more Series is
established hereunder, through one or more Series, investing
primarily in securities, and to exercise all of the powers, rights
and privileges granted to, or conferred upon, a statutory trust
formed under the DSTA, including, without limitation, the following
powers:
(a) To hold, invest and reinvest its funds, and in connection
therewith, to make any changes in the investment of the assets of the
Trust, to hold part or all of its funds in cash, to hold cash
uninvested, to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, mortgage,
transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or
property of every nature and kind, including, without limitation,
all types of bonds, debentures, stocks, shares, units of beneficial
interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, money market
instruments, certificates of deposit or indebtedness, bills, notes,
mortgages, commercial paper, repurchase or reverse repurchase
agreements, bankers' acceptances, finance paper, and any options,
certificates, receipts, warrants, futures contracts or other
instruments representing rights to receive, purchase or subscribe
for the same, or evidencing or representing any other rights or
interests therein or in any property or assets, and other securities
of any kind, as the foregoing are issued, created, guaranteed,
or sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the
District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or
any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory,
or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts
for any such securities;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use
and enjoyment of any of such securities and other instruments
or property of every kind and description, including, but without
limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with respect
to or otherwise deal with, dispose of, use, exercise or enjoy any
rights, title, interest, powers or privileges under or with reference
to any of such securities and other instruments or property, the
right to consent and otherwise act with respect thereto, with power
to designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments, and
to do any and all acts and things for the preservation, protection,
improvement and enhancement in value of any of such securities and
other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease
or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any
Series, subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such Person or Persons
as the Trustees shall deem proper, granting to such Person or Persons
such power and discretion with relation to securities or property as
the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise which
in any manner arise out of ownership of securities and/or other
property;
(f) To hold any security or property in a form not indicating that
it is trust property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize
the custodian or a subcustodian or a nominee or nominees to deposit
the same in a securities depository, subject in each case to proper
safeguards according to the usual practice of investment companies
or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer
of any security which is held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by such
corporation or issuer; and to pay calls or subscriptions with respect
to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate to
them such power and authority with relation to any security (whether
or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses
and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Board of Trustees may deem necessary or appropriate
for the conduct of the business, including, without limitation,
insurance policies insuring the assets of the Trust or payment of
distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, Investment Advisers, Principal Underwriters,
or independent contractors of the Trust, individually against all
claims and liabilities of every nature arising by reason of holding
Shares, holding, being or having held any such office or position, or
by reason of any action alleged to have been taken or omitted by any
such Person as Trustee, officer, employee, agent, Investment Adviser,
Principal Underwriter, or independent contractor, to the fullest extent
permitted by this Declaration of Trust, the By-Laws and by applicable
law;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of
the Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent
or otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved
and unimproved, and wheresoever situated; and to build, erect,
construct, alter and maintain buildings, structures, and other
improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Trust,
and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or
intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade
and deal in stocks, Shares, bonds, debentures and other securities,
instruments or other property of the Trust, from time to time, to
such extent as the Board of Trustees shall, consistent with the
provisions of this Declaration of Trust, determine; and to re-acquire
and redeem, from time to time, its Shares or, if any, its bonds,
debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon, or
adjust, by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any debts,
claims or expenses incurred in connection therewith, including those
of litigation, and such power shall include without limitation the
power of the Trustees or any appropriate committee thereof, in the
exercise of their or its good faith business judgment, to dismiss
any action, suit, proceeding, dispute, claim, or demand, derivative
or otherwise, brought by any Person, including a Shareholder in the
Shareholder's own name or the name of the Trust, whether or not the
Trust or any of the Trustees may be named individually therein or the
subject matter arises by reason of business for or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other states,
territories, districts and United States dependencies and in foreign
countries, all of the foregoing powers, rights and privileges, and
the enumeration of the foregoing powers shall not be deemed to
exclude any powers, rights or privileges so granted or conferred; and
(u) In general, to carry on any other business in connection with or
incidental to its trust purposes, to do everything necessary,
suitable or proper for the accomplishment of such purposes or for the
attainment of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and to do
every other act or thing incidental or appurtenant to, or growing
out of, or connected with, its business or purposes, objects or
powers.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its
Series. Neither the Trust nor the Board of Trustees shall be
required to obtain any court order to deal with any assets of the
Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing
enumeration of specific purposes, objects and powers shall not be
held to limit or restrict in any manner the powers of the Trust, and
that they are in furtherance of, and in addition to, and not in
limitation of, the general powers conferred upon the Trust by the
DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another,
although it be of like nature, not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided into
Shares, each Share without a par value. The number of Shares in the
Trust authorized hereunder, and of each Series and Class as may be
established from time to time, is unlimited. The Board of Trustees
may authorize the division of Shares into separate Classes of Shares
and into separate and distinct Series of Shares and the division of
any Series into separate Classes of Shares in accordance with the
1940 Act. The different Series and Classes shall be established and
designated pursuant to Article III, Section 6 hereof. If no separate
Series or Classes of Series shall be established, the Shares shall
have the rights, powers and duties provided for herein and in
Article III, Section 6 hereof to the extent relevant and not
otherwise provided for herein, and all references to Series and
Classes shall be construed (as the context may require) to refer to
the Trust.
The fact that the Trust shall have one or more established and
designated Classes of the Trust, shall not limit the authority of the
Board of Trustees to establish and designate additional Classes of
the Trust. The fact that one or more Classes of the Trust shall have
initially been established and designated without any specific
establishment or designation of a Series (i.e., that all Shares of
the Trust are initially Shares of one or more Classes) shall not
limit the authority of the Board of Trustees to later establish and
designate a Series and establish and designate the Class or Classes
of the Trust as Class or Classes, respectively, of such Series.
The fact that a Series shall have initially been established
and designated without any specific 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 a
pplicable 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 appropriat
xxx reflected (in a manner determined by the Board of Trustees) and
may affect the net asset value attributable to, and the dividend,
redemption and liquidation rights of, such Class. Each allocation
of liabilities, debts, obligations, costs, charges, reserves and
expenses by or under the direction of the Board of Trustees shall
be conclusive and binding upon the Shareholders of all Classes for
all purposes. All Persons who have extended credit that has been
allocated to a particular Class, or who have a claim or contract
that has been allocated to any particular Class, shall look, and may
be required by contract to look, exclusively to that particular Class
for payment of such credit, claim, or contract.
(c) Dividends, Distributions and Redemptions. Notwithstanding any
other provisions of this Declaration of Trust, including, without
limitation, Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon dissolution of the
Trust or of any Series with respect to, nor any redemption of, the
Shares of any Series or Class of such Series shall be effected by the
Trust other than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of this
Article III, shall any Shareholder of any particular Series otherwise
have any right or claim against the assets held with respect to any
other Series or the Trust generally except, in the case of a right or
claim against the assets held with respect to any other Series, to
the extent that such Shareholder has such a right or claim hereunder
as a Shareholder of such other Series. The Board of Trustees shall
have full discretion, to the extent not inconsistent with the 1940
Act, to determine which items shall be treated as income and which
items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote in the aggregate without differentiation between the
Shares of the separate Series, if any, or separate Classes, if any;
provided that (i) with respect to any matter that affects only the
interests of some but not all Series, then only the Shares of such
affected Series, voting separately, shall be entitled to vote on
the matter, (ii) with respect to any matter that affects only the
interests of some but not all Classes, then only the Shares of such
affected Classes, voting separately, shall be entitled to vote on
the matter; and (iii) notwithstanding the foregoing, with respect to
any matter as to which the 1940 Act or other applicable law or
regulation requires voting, by Series or by Class, then the Shares
of the Trust shall vote as prescribed in such law or regulation.
(e) Equality. Each Share of any particular Series shall be
equal to each other Share of such Series (subject to the rights
and preferences with respect to separate Classes of such Series).
(f) Fractions. A fractional Share of the Trust or a Series shall
carry proportionately all the rights and obligations of a whole
Share of the Trust or such Series, including rights with respect to
voting, receipt of dividends and distributions, redemption of Shares
and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series shall
have the right to exchange said Shares for Shares of one or more
other Series in accordance with such requirements and procedures
as may be established by the Board of Trustees, and in accordance
with the 1940 Act.
(h) Combination of Series or Classes.
The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series, unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series; provided that
upon completion of such combination of Series, the interest of each
Shareholder, in the combined assets and liabilities held with respect
to the combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities held with
respect to the Series that were combined.
The Board of Trustees shall have the authority, without the
approval, vote or consent of the Shareholders of any Series or Class,
unless otherwise required by applicable law, to combine, merge or
otherwise consolidate the Shares of two or more Classes of Shares of
a Series with and/or into a single Class of Shares of such Series,
with such designation, preference, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications,
terms and conditions of redemption and other characteristics as the
Trustees may determine; provided, however, that the Trustees shall
provide written notice to the affected Shareholders of any such
transaction.
The transactions in (i) and (ii) above may be effected through
share-for-share exchanges, transfers or sales of assets, Shareholder
in-kind redemptions and purchases, exchange offers, or any other
method approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall be
dissolved and terminated upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall wind up
the affairs of such Series in accordance with Article VIII, Section 1
hereof. The Board of Trustees shall terminate any particular Class:
(i) upon approval by a majority of votes cast at a meeting of the
Shareholders of such Class, provided a quorum of Shareholders of such
Class are present, or by action of the Shareholders of such Class by
written consent without a meeting pursuant to Article V, Section 3;
or (ii) at the discretion of the Board of Trustees either (A) at any
time there are no Shares outstanding of such Class, or (B) upon prior
written notice to the Shareholders of such Class; provided, however,
that upon the termination of any particular Series, every Class of
such Series shall thereby be terminated.
Section 7. Indemnification of Shareholders. No Shareholder as
such shall be subject to any personal liability whatsoever to any
Person in connection with Trust Property or the acts, obligations or
affairs of the Trust. If any Shareholder or former Shareholder
shall be exposed to liability, charged with liability, or held
personally liable, for any obligations or liability of the Trust,
by reason of a claim or demand relating exclusively to his or her
being or having been a Shareholder of the Trust or a Shareholder of
a particular Series thereof, and not because of such Shareholder's
actions or omissions, such Shareholder or former Shareholder (or, in
the case of a natural person, his or her heirs, executors,
administrators, or other legal representatives or, in the case of a
corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and indemnified
out of the assets of the Trust or out of the assets of such Series
thereof, as the case may be, against all loss and expense, including
without limitation, attorneys' fees, arising from such claim or
demand; provided, however, such indemnity shall not cover (i) any
taxes due or paid by reason of such Shareholder's ownership of any
Shares and (ii) expenses charged to a Shareholder pursuant to
Article IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The Board of Trustees shall be comprised of the Trustees entering
into this Declaration of Trust on the date first written above, who
shall hold office in accordance with paragraph (c) of this Section 1
and as otherwise provided herein. In accordance with Section 3801 of
the DSTA, each Trustee shall become a Trustee and be bound by this
Declaration of Trust and the By-Laws when such Person signs this
Declaration of Trust as a trustee and/or is duly elected or
appointed, qualified and serving on the Board of Trustees in
accordance with the provisions hereof and the By-Laws, so long as
such signatory or other Person continues in office in accordance with
the terms hereof.
(b) The number of Trustees constituting the entire Board of Trustees
may be fixed from time to time by the vote of a majority of the then
Board of Trustees; provided, however, that the number of Trustees
shall in no event be less than one (1) nor more than fifteen (15).
The number of Trustees shall not be reduced so as to shorten the
term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of the Trust
or until such Trustee's earlier death, resignation, removal,
retirement or inability otherwise to serve, or, if sooner than any
of such events, until the next meeting of Shareholders called for
the purpose of electing Trustees or consent of Shareholders in lieu
thereof for the election of Trustees, and until the election and
qualification of his or her successor. Shareholders shall not be
entitled to elect Trustees except as required by the 1940 Act. To
the extent required by the 1940 Act, the Shareholders shall elect
the Trustees on such dates as the Trustees may fix from time to time.
The Shareholders may elect Trustees at any meeting of Shareholders
called for that purpose pursuant to the By-Laws. In the event that
after the proxy material approved by the Trustees has been printed
for a meeting of Shareholders at which Trustees are to be elected any
one or more nominees approved by the Trustees named in such proxy
material dies or become incapacitated or is otherwise unable or
unwilling to serve, the authorized number of Trustees shall be
automatically reduced by the number of such nominees, unless the
Board of Trustees prior to the meeting shall otherwise determine.
A meeting of Shareholders for the purpose of electing or removing
one or more Trustees shall be called as provided in the By-Laws.
(d) Any Trustee may be removed, with or without cause, by the
Board of Trustees, by action of a majority of the Trustees then in
office, or by vote of the Shareholders at any meeting called for
that purpose.
(e) Any Trustee may resign at any time by giving written notice to
the secretary of the Trust or to a meeting of the Board of Trustees.
Such resignation shall be effective upon receipt, unless specified
to be effective at some later time.
(f) The declination to serve, death, resignation, retirement,
removal, incapacity, or inability of the Trustees, or any one of
them, shall not operate to dissolve or terminate the Trust or to
revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Section 2. Trustee Action by Written Consent Without a Meeting.
To the extent not inconsistent with the provisions of the 1940 Act,
any action that may be taken at any meeting of the Board of Trustees
or any committee thereof may be taken without a meeting and without
prior written notice if a consent or consents in writing setting forth
the action so taken is signed by the Trustees having not less than
the minimum number of votes that would be necessary to authorize or
take that action at a meeting at which all Trustees on the Board of
Trustees or any committee thereof, as the case may be, were present
and voted. Written consents of the Trustees may be executed in one
or more counterparts. A consent transmitted by electronic
transmission (as defined in Section 3806 of the DSTA) by a Trustee
shall be deemed to be written and signed for purposes of this
Section. All such consents shall be filed with the secretary of the
Trust and shall be maintained in the Trust's records.
Section 3. Powers; Other Business Interests; Quorum and Required
Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust (including every Series thereof) shall be
managed by or under the direction of the Board of Trustees, and such
Board of Trustees shall have all powers necessary or convenient to
carry out that responsibility. The Board of Trustees shall have
full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that it may consider
necessary or appropriate in connection with the operation and
administration of the Trust (including every Series thereof). The
Board of Trustees shall not be bound or limited by present or future
laws or customs with regard to investments by trustees or
fiduciaries, but, subject to the other provisions of this Declaration
of Trust and the By-Laws, shall have full authority and absolute
power and control over the assets and the business of the Trust
(including every Series thereof) to the same extent as if the Board
of Trustees was the sole owner of such assets and business in its
own right, including such authority, power and control to do all acts
and things as it, in its sole discretion, shall deem proper to
accomplish the purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to the requisite vote
for such actions as set forth in this Declaration of Trust and the
By-Laws: (1) adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust; (2) amend, restate and repeal such
By-Laws, subject to and in accordance with the provisions of such
By-Laws; (3) fill vacancies on the Board of Trustees in accordance
with this Declaration of Trust and the By-Laws; (4) elect and remove
such officers and appoint and terminate such agents as it considers
appropriate, in accordance with this Declaration of Trust and the
By-Laws; (5) establish and terminate one or more committees of the
Board of Trustees pursuant to the By-Laws; (6) place Trust Property
in custody as required by the 1940 Act, employ one or more custodians
of the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property
with a custodian or a custodial system meeting the requirements of
the 1940 Act; (7) retain a transfer agent, dividend disbursing agent,
a shareholder servicing agent or administrative services agent, or
any number thereof or any other service provider as deemed
appropriate; (8) provide for the issuance and distribution of Shares
in the Trust or other securities or financial instruments directly
or through one or more Principal Underwriters or otherwise;
(9) retain one or more Investment Adviser(s); (10) re-acquire and
redeem Shares on behalf of the Trust and transfer Shares pursuant to
applicable law; (11) set record dates for the determination of
Shareholders with respect to various matters, in the manner provided
in Article V, Section 4 of this Declaration of Trust; (12) declare
and pay dividends and distributions to Shareholders from the Trust
Property, in accordance with this Declaration of Trust and the
By-Laws; (13) establish, designate and redesignate from time to time,
in accordance with the provisions of Article III, Section 6 hereof,
any Series or Class of the Trust or of a Series; (14) hire personnel
as staff for the Board of Trustees or, for those Trustees who are not
Interested Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, set the compensation to be paid by the Trust
to such personnel, exercise exclusive supervision of such personnel,
and remove one or more of such personnel, at the discretion of the
Board of Trustees; (15) retain special counsel, other experts and/or
consultants for the Board of Trustees, for those Trustees who are
not Interested Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, and/or for one or more of the committees of
the Board of Trustees, set the compensation to be paid by the Trust
to such special counsel, other experts and/or consultants, and remove
one or more of such special counsel, other experts and/or
consultants, at the discretion of the Board of Trustees; (16) engage
in and prosecute, defend, compromise, abandon, or adjust, by
arbitration, or otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of the assets of
the Trust to pay or to satisfy any debts, claims or expenses incurred
in connection therewith, including those of litigation, and such
power shall include, without limitation, the power of the Trustees,
or any appropriate committee thereof, in the exercise of their or
its good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise,
brought by any person, including a shareholder in its own name or
in the name of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust; and (17)
in general delegate such authority as it considers desirable to any
Trustee or officer of the Trust, to any committee of the Trust, to
any agent or employee of the Trust or to any custodian, transfer,
dividend disbursing, shareholder servicing agent, Principal
Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section 3(a)
are without prejudice to any other powers of the Board of Trustees
set forth in this Declaration of Trust and the By-Laws. Any
determination as to what is in the best interests of the Trust or
any Series or Class thereof and its Shareholders made by the Board
of Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption shall be in
favor of a grant of power to the Board of Trustees.
The Trustees shall be subject to the same fiduciary duties to which
the directors of a Delaware corporation would be subject if the Trust
were a Delaware corporation, the Shareholders were shareholders of
such Delaware corporation and the Trustees were directors of such
Delaware corporation, and such modified duties shall replace any
fiduciary duties to which the Trustees would otherwise be subject.
Without limiting the generality of the foregoing, all actions and
omissions of the Trustees shall be evaluated under the doctrine
commonly referred to as the "business judgment rule," as defined
and developed under Delaware law, to the same extent that the same
actions or omissions of directors of a Delaware corporation in a
substantially similar circumstance would be evaluated under such
doctrine. Notwithstanding the foregoing, the provisions of this
Declaration of Trust and the By-Laws, to the extent that they
restrict or eliminate the duties (including fiduciary duties) and
liabilities relating thereto of a Trustee otherwise applicable under
the foregoing standard or otherwise existing at law or in equity,
are agreed by each Shareholder and the Trust to replace such other
duties and liabilities of such Trustee.
(b) Other Business Interests. The Trustees shall devote to the
affairs of the Trust (including every Series thereof) such time as
may be necessary for the proper performance of their duties
hereunder, but neither the Trustees nor the officers, directors,
shareholders, partners or employees of the Trustees, if any, shall
be expected to devote their full time to the performance of such
duties. The Trustees, or any Affiliate, shareholder, officer,
director, partner or employee thereof, or any Person owning a legal
or beneficial interest therein, may engage in, or possess an
interest in, any business or venture other than the Trust or any
Series thereof, of any nature and description, independently or with
or for the account of others. None of the Trust, any Series thereof
or any Shareholder shall have the right to participate or share in
such other business or venture or any profit or compensation derived
therefrom.
(c) Quorum and Required Vote. At all meetings of the Board of
Trustees, a majority of the Board of Trustees then in office shall be
present in person in order to constitute a quorum for the
transaction of business. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the
departure of Trustees from the meeting, if any action taken is
approved by at least a majority of the required quorum for that
meeting. Subject to Article III, Sections 1 and 6 of the By-Laws
and except as otherwise provided herein or required by applicable
law, the vote of not less than a majority of the Trustees present
at a meeting at which a quorum is present shall be the act of the
Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to the
provisions of Article III, Section 6 hereof, the Trustees or an
authorized officer of the Trust shall pay or cause to be paid out
of the principal or income of the Trust or any particular Series or
Class thereof, or partly out of the principal and partly out of the
income of the Trust or any particular Series or Class thereof, and
charge or allocate the same to, between or among such one or more of
the Series or Classes that may be established or designated pursuant
to Article III, Section 6 hereof, as the Trustees or such officer
deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or
operation of the Trust or a particular Series or Class thereof,
or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses, fees,
charges, taxes and liabilities associated with the services of the
Trust's officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, sub-custodian, transfer
agent, dividend disbursing agent, shareholder servicing agent, and
such other agents or independent contractors and such other expenses,
fees, charges, taxes and liabilities as the Board of Trustees may
deem necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board of
Trustees shall have the power, as frequently as it may determine,
to cause any Shareholder to pay directly, in advance or arrears, an
amount fixed from time to time by the Board of Trustees or an
officer of the Trust for charges of the Trust's custodian or
transfer, dividend disbursing, shareholder servicing or similar
agent-which are not customarily charged generally to the Trust,
a Series or a Class, where such services are provided to such
Shareholder individually, rather than to all Shareholders
collectively, by setting off such amount due from such Shareholder
from the amount of (i) declared but unpaid dividends or distributions
owed such Shareholder, or (ii) proceeds from the redemption by the
Trust of Shares from such Shareholder pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all of
the Trust Property shall at all times be vested in the Trust, except
that the Board of Trustees shall have the power to cause legal title
to any Trust Property to be held by or in the name of any Person as
nominee, on such terms as the Board of Trustees may determine, in
accordance with applicable law. No creditor of any Trustee shall
have any right to obtain possession, or otherwise exercise legal or
equitable remedies with respect to, any Trust Property with respect
to any claim against, or obligation of, such Trustee in its
individual capacity and not related to the Trust or any Series or
Class of the Trust. No Shareholder shall be deemed to have a
severable ownership in any individual asset of the Trust, or
belonging to any Series, or allocable to any Class thereof, or any
right of partition or possession thereof, but each Shareholder shall
have, except as otherwise provided for herein, a proportionate
undivided beneficial interest in the Trust or in assets belonging to
the Series (or allocable to the Class) in which the Shareholder
holds Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Declaration of Trust or the
DSTA.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and the 1940
Act, the Board of Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive investment advisory or
investment management services for the Trust or for any Series
thereof with any corporation, trust, association or other
organization, including any Affiliate; and any such contract may
contain such other terms as the Board of Trustees may determine,
including without limitation, delegation of authority to the
Investment Adviser to determine from time to time without prior
consultation with the Board of Trustees what securities and other
instruments or property shall be purchased or otherwise acquired,
owned, held, invested or reinvested in, sold, exchanged, transferred,
mortgaged, pledged, assigned, negotiated, or otherwise dealt with or
disposed of, and what portion, if any, of the Trust Property shall
be held uninvested and to make changes in the Trust's or a particular
Series' investments, or to engage in such other activities,
including administrative services, as may specifically be delegated
to such party.
(b) The Board of Trustees may also, at any time and from time to
time, contract with any Person, including any Affiliate, appointing
it or them as the exclusive or nonexclusive placement agent,
distributor or Principal Underwriter for the Shares of the Trust or
one or more of the Series or Classes thereof, or for other
securities or financial instruments to be issued by the Trust, or
appointing it or them to act as the administrator, fund accountant or
accounting agent, custodian, transfer agent, dividend disbursing
agent and/or shareholder servicing agent for the Trust or one or more
of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and from
time to time, to contract with any Persons, including any
Affiliates, to provide such other services to the Trust or one or
more of its Series, as the Board of Trustees determines to be in the
best interests of the Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances shall affect the
validity of any of the contracts provided for in this Article IV,
Section 7, or disqualify any Shareholder, Trustee, employee or
officer of the Trust from voting upon or executing the same, or
create any liability or accountability to the Trust, any Series
thereof or the Shareholders, provided that the establishment of and
performance of each such contract is permissible under the 1940 Act,
and provided further that such Person is authorized to vote upon
such contract under the 1940 Act:
the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or for
any Person, or for any parent or Affiliate of any Person, with
which any type of service contract provided for in this Article IV,
Section 7 may have been or may hereafter be made, or that any such
Person, or any parent or Affiliate thereof, is a Shareholder or has
an interest in the Trust, or
the fact that any Person with which any type of service contract
provided for in this Article IV, Section 7 may have been or may
hereafter be made also has such a service contract with one or more
other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7 is required to
comply with this Declaration of Trust, the By-Laws, the 1940 Act,
other applicable law and any stipulation by resolution of the Board
of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III,
Section 6 hereof, the Shareholders shall have the power to vote
only (i) on such matters required by this Declaration of Trust, the
By-Laws, the 1940 Act, other applicable law and any registration
statement of the Trust filed with the Commission, the registration
of which is effective; and (ii) on such other matters as the Board
of Trustees may consider necessary or desirable. Subject to Article
III hereof, the Shareholder of record (as of the record date
established pursuant to Section 4 of this Article V) of each Share
shall be entitled to one vote for each full Share, and a fractional
vote for each fractional Share. Shareholders shall not be entitled
to cumulative voting in the election of Trustees or on any other
matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares entitled to vote
at a Shareholders' meeting, which are present in person or
represented by proxy, shall constitute a quorum at the Shareholders'
meeting, except when a larger quorum is required by this Declaration
of Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares are listed for trading, in which
case such quorum shall comply with such requirements. When a
separate vote by one or more Series or Classes is required, forty
percent (40%) of the outstanding Shares of each such Series or Class
entitled to vote at a Shareholders' meeting of such Series or Class,
which are present in person or represented by proxy, shall constitute
a quorum at the Shareholders' meeting of such Series or Class, except
when a larger quorum is required by this Declaration of Trust, the
By-Laws, applicable law or the requirements of any securities
exchange on which Shares of such Series or Class are listed for
trading, in which case such quorum shall comply with such
requirements.
(b) Subject to the provisions of Article III, Section 6(d), when a
quorum is present at any meeting, a majority of the votes cast shall
decide any questions and a plurality shall elect a Trustee, except
when a larger vote is required by any provision of this Declaration
of Trust or the By-Laws or by applicable law. Pursuant to
Article III, Section 6(d) hereof, where a separate vote by Series
and, if applicable, by Class is required, the preceding sentence
shall apply to such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes present
at a Shareholders' meeting; abstentions and broker non-votes will
not be treated as votes cast at such meeting. Abstentions and
broker non-votes, therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii) will have no effect
on proposals that require a plurality for approval, or on proposals
requiring an affirmative vote of a majority of votes cast for
approval.
Section 3. Shareholder Action by Written Consent Without a Meeting.
Any action which may be taken at any meeting of Shareholders may be
taken without a meeting if a consent or consents in writing setting
forth the action so taken is or are signed by the holders of a
majority of the Shares entitled to vote on such action (or such
different proportion thereof as shall be required by law, the
Declaration of Trust or the By-Laws for approval of such action) and
is or are received by the secretary of the Trust either: (i) by the
date set by resolution of the Board of Trustees for the shareholder
vote on such action; or (ii) if no date is set by resolution of the
Board, within 30 days after the record date for such action as
determined by reference to Article V, Section 4(b) hereof. The
written consent for any such action may be executed in one or more
counterparts, each of which shall be deemed an original, and all of
which when taken together shall constitute one and the same instrument.
A consent transmitted by electronic transmission (as defined in the
DSTA) by a Shareholder or by a Person or Persons authorized to act
for a Shareholder shall be deemed to be written and signed for
purposes of this Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the Trust's
records. Any Shareholder that has given a written consent or the
Shareholder's proxyholder or a personal representative of the
Shareholder or its respective proxyholder may revoke the consent by
a writing received by the secretary of the Trust either: (i) before
the date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date for
such action as determined by reference to Article V, Section 4(b)
hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice
of, and to vote at, any meeting of Shareholders, the Board of
Trustees may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted
by the Board of Trustees, and which record date shall not be more
than one hundred and twenty (120) days nor less than ten (10) days
before the date of any such meeting. A determination of
Shareholders of record entitled to notice of or to vote at a meeting
of Shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Trustees may fix a new record
date for the adjourned meeting and shall fix a new record date for
any meeting that is adjourned for more than one hundred and eighty
(180) days from the record date set for the original meeting. For
purposes of determining the Shareholders entitled to vote on any
action without a meeting, the Board of Trustees may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than thirty (30)
days after the date upon which the resolution fixing the record date
is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
the record date for determining Shareholders entitled to notice of,
and to vote at, a meeting of Shareholders shall be at the close of
business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
the record date for determining Shareholders entitled to vote
on any action by consent in writing without a meeting of
Shareholders, (1) when no prior action by the Board of Trustees has
been taken, shall be the day on which the first signed written
consent setting forth the action taken is delivered to the Trust, or
(2) when prior action of the Board of Trustees has been taken, shall
be at the close of business on the day on which the Board of Trustees
adopts the resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the Trust or
any Series or Class thereof who are entitled to receive payment of
any dividend or of any other distribution of assets of the Trust or
any Series or Class thereof (other than in connection with a
dissolution of the Trust or a Series, a merger, consolidation,
conversion, reorganization, or any other transactions, in each
case that is governed by Article VIII of the Declaration of Trust),
the Board of Trustees may:
from time to time fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date
is adopted, and which record date shall not be more than sixty (60)
days before the date for the payment of such dividend and/or such
other distribution;
adopt standing resolutions fixing record dates and related payment
dates at periodic intervals of any duration for the payment of such
dividend and/or such other distribution; and/or
delegate to an appropriate officer or officers of the Trust the
determination of such periodic record and/or payments dates with
respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding the Board
of Trustees from setting different record dates for different Series
or Classes.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and
Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to determine from time to time the offering
price for authorized, but unissued, Shares of the Trust or any Series
or Class thereof, respectively, that shall yield to the Trust or
such Series or Class not less than the net asset value thereof, in
addition to any amount of applicable sales charge to be paid to the
Principal Underwriter or the selling broker or dealer in connection
with the sale of such Shares, at which price the Shares of the Trust
or such Series or Class, respectively, shall be offered for sale,
subject to any other requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees
may, subject to the 1940 Act, prescribe (or delegate to any officer
of the Trust or any other Person the right to prescribe) such bases
and time (including any methodology or plan) for determining the net
asset value per Share of the Trust or any Series or Class thereof,
or net income attributable to the Shares of the Trust or any Series
or Class thereof or the declaration and payment of dividends and
distributions on the Shares of the Trust or any Series or Class
thereof, and the method of determining the Shareholders to whom
dividends and distributions are payable, as it may deem necessary or
desirable, and such dividends and distributions may vary between the
Classes to reflect differing allocations of the expenses of the
Trust between such Classes to such extent and for such purposes as
the Trustees may deem appropriate. Without limiting the generality
of the foregoing, but subject to applicable federal law, including
the 1940 Act, any dividend or distribution may be paid in cash
and/or securities or other property, and the composition of any such
distribution shall be determined by the Trustees (or by any officer
of the Trust or any other Person to whom such authority has been
delegated by the Trustees) and may be different among Shareholders
including differences among Shareholders of the same Series or Class.
(c) The Shareholders of the Trust or any Series or Class, if any,
shall be entitled to receive dividends and distributions, when, if
and as declared by the Board of Trustees with respect thereto,
provided that with respect to Classes, such dividends and
distributions shall comply with the 1940 Act. The right of
Shareholders to receive dividends or other distributions on Shares
of any Class may be set forth in a plan adopted by the Board of
Trustees and amended from time to time pursuant to the 1940 Act. No
Share shall have any priority or preference over any other Share of
the Trust with respect to dividends or distributions paid in the
ordinary course of business or distributions upon dissolution of the
Trust made pursuant to Article VIII, Section 1 hereof; provided
however, that
if the Shares of the Trust are divided into Series thereof, no Share
of a particular Series shall have any priority or preference over
any other Share of the same Series with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust or of such Series made
pursuant to Article VIII, Section 1 hereof;
if the Shares of the Trust are divided into Classes thereof, no
Share of a particular Class shall have any priority or preference
over any other Share of the same Class with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to Article
VIII, Section 1 hereof; and
if the Shares of a Series are divided into Classes thereof, no Share
of a particular Class of such Series shall have any priority or
preference over any other Share of the same Class of such Series
with respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of such Series
made pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular Class of the Trust, a
particular Series, or a particular Class of a Series from the Trust
Property held with respect to the Trust, such Series or such Class,
respectively, according to the number of Shares of the Trust, such
Series or such Class held of record by such Shareholders on the
record date for any dividend or distribution; provided however, that
if the Shares of the Trust are divided into Series thereof, all
dividends and distributions from the Trust Property and, if
applicable, held with respect to such Series, shall be distributed
to each Series thereof according to the net asset value computed for
such Series and within such particular Series, shall be distributed
ratably to the Shareholders of such Series according to the number
of Shares of such Series held of record by such Shareholders on the
record date for any dividend or distribution; and
if the Shares of the Trust or of a Series are divided into Classes
thereof, all dividends and distributions from the Trust Property and,
if applicable, held with respect to the Trust or such Series, shall
be distributed to each Class thereof according to the net asset
value computed for such Class and within such particular Class, shall
be distributed ratably to the Shareholders of such Class according to
the number of Shares of such Class held of record by such
Shareholders on the record date for any dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of any
funds of the Trust, or the applicable Series thereof, available for
dividends such sum or sums as the Board of Trustees may from time
to time, in its absolute discretion, think proper as a reserve fund
to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Trust, or any Series thereof, or
for such other lawful purpose as the Board of Trustees shall deem to
be in the best interests of the Trust, or the applicable Series, as
the case may be, and the Board of Trustees may abolish any such
reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless
otherwise provided in the prospectus of the Trust relating to the
Shares, as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption upon the presentation of a proper
instrument of transfer together with a request directed to the Trust
or a Person designated by the Trust that the Trust purchase such
Shares and/or in accordance with such other procedures for
redemption as the Board of Trustees may from time to time authorize.
If certificates have been issued to a Shareholder, any request for
redemption by such Shareholder must be accompanied by surrender of
any outstanding certificate or certificates for such Shares in form
for transfer, together with such proof of the authenticity of
signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value
thereof as determined by the Trustees (or by such Person to whom
such determination has been delegated) (excluding any applicable
redemption fee or sales load), in accordance with this Declaration
of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize in its
complete discretion, be made in kind or partially in cash and
partially in kind. In case of any payment in kind, the Board of
Trustees, or its authorized officers, shall have absolute discretion
as to what security or securities of the Trust or the applicable
Series shall be distributed in kind and the amount of the same; and
the securities shall be valued for purposes of distribution at the
value at which they were appraised in computing the then current net
asset value of the Shares, provided that any Shareholder who cannot
legally acquire securities so distributed in kind shall receive cash
to the extent permitted by the 1940 Act. Shareholders shall bear
the expenses of in-kind transactions, including, but not limited to,
transfer agency fees, custodian fees and costs of disposition of
such securities.
(c) Payment by the Trust for such redemption of Shares shall be
made by the Trust to the Shareholder within seven days after the
date on which the redemption request is received in proper form
and/or such other procedures authorized by the Board of Trustees are
complied with; provided, however, that if payment shall be made
other than exclusively in cash, any securities to be delivered as
part of such payment shall be delivered as promptly as any necessary
transfers of such securities on the books of the several
corporations or other Person whose securities are to be delivered
practicably can be made, which may not necessarily occur within such
seven-day period. In no case shall the Trust be liable for any
delay of any corporation or other Person in transferring securities
selected for delivery as all or part of any payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are
subject to the provision that such obligations may be suspended or
postponed by the Board of Trustees (1) during any time the New York
Stock Exchange (the "Exchange") is closed for other than weekends or
holidays; (2) if permitted by the rules of the Commission, during
periods when trading on the Exchange is restricted; or (3) during
any National Financial Emergency. The Board of Trustees may, in
its discretion, declare that the suspension relating to a National
Financial Emergency shall terminate, as the case may be, on the
first business day on which the Exchange shall have reopened or the
period specified above shall have expired (as to which, in the
absence of an official ruling by the Commission, the determination
of the Board of Trustees shall be conclusive). In the case of a
suspension of the right of redemption as provided herein, a
Shareholder may either withdraw the request for redemption or receive
payment based on the net asset value per Share next determined after
the termination of such suspension, less any fees imposed on such
redemption.
(e) The right of any Shareholder of the Trust or any Series or Class
thereof to receive dividends or other distributions on Shares
redeemed and all other rights of such Shareholder with respect to the
Shares so redeemed, except the right of such Shareholder to receive
payment for such Shares, shall cease at the time the purchase price
of such Shares shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. At the option
of the Board of Trustees the Trust may, from time to time, without
the vote of the Shareholders, but subject to the 1940 Act, redeem
Shares or authorize the closing of any Shareholder account, subject
to such conditions and for such reasons as may be established from
time to time by the Board of Trustees, including, without limitation,
(i) the determination of the Trustees that direct or indirect
ownership of Shares of the Trust or any Series has or may become
concentrated in such Shareholder to an extent that would disqualify
any Series as a regulated investment company under the Code (or any
successor statute thereto), (ii) the failure of a Shareholder to
supply a tax identification number if required to do so, or to have
the minimum investment required (which may vary by Series or Class),
(iii) if the Share activity of the account or ownership of Shares by
a particular Shareholder is deemed by the Trustees either to affect
adversely the management of the Trust or any Series or Class or not
to be in the best interests of the remaining Shareholders of the
Trust or any Series or Class or (iv) the failure of a Shareholder
to pay when due for the purchase of Shares issued to him. Any such
redemption shall be effected at the redemption price and in the
manner provided in this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable in
accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who
is or was a Trustee, officer, employee or other agent of the Trust
or is or was serving at the request of the Trust as a trustee,
director, officer, employee or other agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise; "Proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative; and "Expenses" include without limitation attorneys'
fees and any expenses of establishing a right to indemnification
under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder
for any act or omission that constitutes a bad faith violation of
the implied contractual covenant of good faith and fair dealing, for
such Agent's own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest
extent that limitations on the liability of Agents are permitted by
the DSTA, the Agents shall not be responsible or liable in any event
for any act or omission of any other Agent of the Trust or any
Investment Adviser or Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such,
shall be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in subsections (b) and (c) of
this Section 1, for any act, omission or obligation of the Trust
or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall, in
the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account
or other records of the Trust, upon an opinion of counsel, or upon
reports made to the Trust by any of its officers or employees or by
the Investment Adviser, the Principal Underwriter, any other Agent,
selected dealers, accountants, appraisers or other experts or
consultants, regardless of whether such counsel or expert may also
be a Trustee, as to matters the Trustee, officer or employee of the
Trust reasonably believes are within such Person's professional or
expert competence. The officers and Trustees may obtain the advice
of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, the By-Laws, applicable
law and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in
accordance with such advice, records and/or reports and no inference
concerning liability shall arise from a failure to follow such
advice, records and/or reports. The officers and Trustees shall not
be required to give any bond hereunder, nor any surety if a bond is
required by applicable law.
(f) The failure to make timely collection of dividends or interest,
or to take timely action with respect to entitlements, on the
Trust's securities issued in emerging countries, shall not be deemed
to be negligence or other fault on the part of any Agent, and no
Agent shall have any liability for such failure or for any loss or
damage resulting from the imposition by any government of exchange
control restrictions which might affect the liquidity of the Trust's
assets or from any war or political act of any foreign government to
which such assets might be exposed, except, in the case of a Trustee
or officer, for liability resulting from such Trustee's or officer's
Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies
to events occurring at the time a Person serves as an Agent whether
or not such Person is an Agent at the time of any Proceeding in
which liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any
right or protection of an Agent that exists at the time of such
amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of
Trust Property, to the fullest extent permitted under applicable
law, any Person who was or is a party, potential party or non-party
witness or is threatened to be made a party, potential party or
non-party witness to any Proceeding by reason of the fact that such
Person is or was an Agent of the Trust, against Expenses, judgments,
fines, settlements and other amounts actually and reasonably
incurred in connection with such Proceeding if such Person acted in
good faith or in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such Person was unlawful.
The termination of any Proceeding by judgment, order, settlement,
conviction or plea of nolo contendere or its equivalent shall not of
itself create a presumption that the Person did not act in good
faith or that the Person had reasonable cause to believe that the
Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to
the contrary contained herein, there shall be no right to
indemnification for any liability arising by reason of the Agent's
Disqualifying Conduct. In respect of any claim, issue or matter as
to which that Person shall have been adjudged to be liable in the
performance of that Person's duty to the Trust or the Shareholders,
indemnification shall be made only to the extent that the court in
which that action was brought shall determine, upon application or
otherwise, that in view of all the circumstances of the case, that
Person was not liable by reason of that Person's Disqualifying
Conduct.
(c) Required Approval. Any indemnification under this Article shall
be made by the Trust if authorized in the specific case on a
determination that indemnification of the Agent is proper in the
circumstances by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the Agent was
not liable by reason of Disqualifying Conduct (including, but not
limited to, dismissal of either a court action or an administrative
proceeding against the Agent for insufficiency of evidence of any
Disqualifying Conduct) or, (ii) in the absence of such a decision,
a reasonable determination, based upon a review of the facts, that
the Agent was not liable by reason of Disqualifying Conduct, by
(1) the vote of a majority of a quorum of the Trustees who are not
(x) "interested persons" of the Trust as defined in Section 2(a)(19)
of the 1940 Act, (y) parties to the proceeding, or (z) parties who
have any economic or other interest in connection with such specific
case (the "disinterested, non-party Trustees"); or (2) by independent
legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the
final disposition of the Proceeding on receipt of an undertaking by
or on behalf of the Agent to repay the amount of the advance if it
shall be determined ultimately that the Agent is not entitled to be
indemnified as authorized in this Article; provided, that at least
one of the following conditions for the advancement of expenses is
met: (i) the Agent shall provide a security for his undertaking,
(ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the
disinterested, non-party Trustees of the Trust, or an independent
legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Agent ultimately
will be found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in this Article
shall affect any right to indemnification to which Persons other
than Trustees and officers of the Trust or any subsidiary thereof may
be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not
apply to any Proceeding against any trustee, investment manager or
other fiduciary of an employee benefit plan in that Person's capacity
as such, even though that Person may also be an Agent of the Trust
as defined in Section 1 of this Article. Nothing contained in this
Article shall limit any right to indemnification to which such a
trustee, investment manager, or other fiduciary may be entitled by
contract or otherwise which shall be enforceable to the extent
permitted by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding any other
provision in this Declaration of Trust to the contrary, any amount
of indemnification and any advancement of expenses that any Agent
is entitled to be paid under Section 2 shall be deemed to be joint
and several obligations of the Trust and each Series, and the assets
of the Trust and each Series shall be subject to the claims of any
Agent therefor under this Article VII; provided that any such
liability, expense or obligation may be allocated and charged by
the Board of Trustees between or among the Trust and/or any one or
more Series (and Classes) in such manner as the Board of Trustees
in its sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted by applicable
law, the Board of Trustees shall have the authority to purchase
with Trust Property, insurance for liability and for all Expenses
reasonably incurred or paid or expected to be paid by an Agent in
connection with any Proceeding in which such Agent becomes involved
by virtue of such Agent's actions, or omissions to act, in its
capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the DSTA, a Shareholder or Shareholders may
bring a derivative action on behalf of the Trust only if the
following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon
the Board of Trustees to bring the subject action unless an effort
to cause the Board of Trustees to bring such an action is not likely
to succeed. For purposes of this Section 4, a demand on the Board
of Trustees shall only be deemed not likely to succeed and therefore
excused if a majority of the Board of Trustees, or a majority of any
committee established to consider the merits of such action, is
composed of Trustees who are not "independent trustees" (as such term
is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of this
Section 4, Shareholders eligible to bring such derivative action
under the DSTA who hold at least 10% of the outstanding Shares of the
Trust, or 10% of the outstanding Shares of the Series or Class to
which such action relates, shall join in the request for the Board
of Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 4, the Board of Trustees must be afforded a reasonable
amount of time to consider such Shareholder request and to
investigate the basis of such claim. The Board of Trustees shall be
entitled to retain counsel or other advisors in considering the
merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the
expense of any such advisors in the event that the Board of Trustees
determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who are
"independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions (collectively,
"claims") that under applicable law must be brought as derivative
claims, each Shareholder of the Trust or any Series or Class thereof
agrees that any claim that affects all Shareholders of a Series or
Class equally, that is, proportionately based on their number of
Shares in such Series or Class, must be brought as a derivative
claim subject to this Section 4 irrespective of whether such claim
involves a violation of the Shareholders' rights under this
Declaration of Trust or any other alleged violation of contractual
or individual rights that might otherwise give rise to a direct
claim.
Section 5. Jurisdiction and Waiver of Jury Trial. In accordance
with Section 3804(e) of the DSTA any suit, action or proceeding
brought by or in the right of any Shareholder or any person claiming
any interest in any Shares seeking to enforce any provision of, or
based on any matter arising out of, or in connection with, this
Declaration of Trust or the Trust, any Series or Class or any Shares,
including any claim of any nature against the Trust, any Series or
Class, the Trustees or officers of the Trust, shall be brought
exclusively in the Court of Chancery of the State of Delaware to
the extent there is subject matter jurisdiction in such court for
the claims asserted or, if not, then in the Superior Court of the
State of Delaware, and all Shareholders and other such Persons hereby
irrevocably consent to the jurisdiction of such courts (and the
appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waive, to the fullest extent permitted
by law, any objection they may make now or hereafter have to the
laying of the venue of any such suit, action or proceeding in such
court or that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum and further,
in connection with any such suit, action, or proceeding brought in
the Superior Court in the State of Delaware, all Shareholders and
all other such Persons irrevocably waive the right to a trial by jury
to the fullest extent permitted by law. All Shareholders and other
such Persons agree that service of summons, complaint or other
process in connection with any proceedings may be made by registered
or certified mail or by overnight courier addressed to such Person
at the address shown on the books and records of the Trust for such
Person or at the address of the Person shown on the books and records
of the Trust with respect to the Shares that such Person claims an
interest in. Service of process in any such suit, action or
proceeding against the Trust or any Trustee or officer of the Trust
may be made at the address of the Trust's registered agent in the
State of Delaware. Any service so made shall be effective as if
personally made in the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each
Series shall have perpetual existence, except that the Trust (or a
particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders
of not less than a majority of the Shares of the Trust cast, or (ii)
at the discretion of the Board of Trustees either (A) at any time
there are no Shares outstanding of the Trust, or (B) upon prior
written notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series
cast, or (ii) at the discretion of the Board of Trustees either
(A) at any time there are no Shares outstanding of such Series, or
(B) upon prior written notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any
other provision of this Declaration of Trust (including Article VIII,
Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that causes the
dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case
may be), the Board of Trustees shall (in accordance with Section
3808 of the DSTA) pay or make reasonable provision to pay all claims
and obligations of the Trust and/or each Series (or the particular
Series, as the case may be), including, without limitation, all
contingent, conditional or unmatured claims and obligations known to
the Trust, and all claims and obligations which are known to the
Trust, but for which the identity of the claimant is unknown. If
there are sufficient assets held with respect to the Trust and/or
each Series of the Trust (or the particular Series, as the case may
be), such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are
insufficient assets held with respect to the Trust and/or each Series
of the Trust (or the particular Series, as the case may be), such
claims and obligations shall be paid or provided for according to
their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any remaining
assets (including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust and/or each
Series of the Trust (or the particular Series, as the case may be)
shall be distributed to the Shareholders of the Trust and/or each
Series of the Trust (or the particular Series, as the case may be)
ratably according to the number of Shares of the Trust and/or such
Series thereof (or the particular Series, as the case may be) held
of record by the several Shareholders on the date for such
dissolution distribution; provided, however, that if the Shares of
the Trust or a Series are divided into Classes thereof, any
remaining assets (including, without limitation, cash, securities or
any combination thereof) held with respect to the Trust or such
Series, as applicable, shall be distributed to each Class of the
Trust or such Series according to the net asset value computed for
such Class and within such particular Class, shall be distributed
ratably to the Shareholders of such Class according to the number of
Shares of such Class held of record by the several Shareholders on
the date for such dissolution distribution. Upon the winding up of
the Trust in accordance with Section 3808 of the DSTA and its
termination, any one (1) Trustee shall execute, and cause to be
filed, a certificate of cancellation, with the office of the
Secretary of State of the State of Delaware in accordance with the
provisions of Section 3810 of the DSTA. In connection with the
dissolution and liquidation of the Trust or the termination of any
Series or any Class, the Trustees may provide for the establishment
and utilization of a liquidating trust or similar vehicle.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into
one or more statutory trusts or "other business entities" (as
defined in Section 3801 of the DSTA) formed or organized or existing
under the laws of the State of Delaware or any other state of the
United States or any foreign country or other foreign jurisdiction.
Any such merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided
however, that the Board of Trustees shall provide at least thirty
(30) days' prior written notice to the Shareholders of such merger
or consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with
this Section 2(a) may, without a Shareholder vote unless required by
the 1940 Act or the requirements of any securities exchange on which
Shares are listed for trading, effect any amendment to this
Declaration of Trust or the By-Laws or effect the adoption of a new
governing instrument if the Trust is the surviving or resulting
statutory trust in the merger or consolidation, which amendment or
new governing instrument shall be effective at the effective time or
date of the merger or consolidation. In all respects not governed by
the DSTA, the 1940 Act, other applicable law or the requirements of
any securities exchange on which Shares are listed for trading, the
Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or
consolidation, including the power to create one or more separate
statutory trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide for
the conversion of Shares into beneficial interests in such separate
statutory trust or trusts. In connection with any merger or
consolidation, if the Trust is the surviving or resulting statutory
trust, any one (1) Trustee shall execute, and cause to be filed, a
certificate of merger or consolidation in accordance with Section
3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of the
Trustees, may cause (i) the Trust to convert to an "other business
entity" (as defined in Section 3801 of the DSTA) formed or organized
under the laws of the State of Delaware as permitted pursuant to
Section 3821 of the DSTA; (ii) the Shares of the Trust or any Series
or Class to be converted into beneficial interests in another
statutory trust (or series or class thereof) created pursuant to this
Section 2 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent
permitted by law. Any such statutory conversion, Share conversion or
Share exchange shall not require the vote of the Shareholders
unless such vote is required by the 1940 Act; provided however, that
the Board of Trustees shall provide at least thirty (30) days'
prior written notice to the Shareholders of the Trust of any
conversion of Shares of the Trust pursuant to Subsections (b)(i) or
(b)(ii) of this Section 2 or exchange of Shares of the Trust pursuant
to Subsection (b)(iii) of this Section 2, and at least thirty (30)
days' prior written notice to the Shareholders of a particular Series
or Class of any conversion of Shares of such Series or Class
pursuant to Subsection (b)(ii) of this Section 2 or exchange of
Shares of such Series or Class pursuant to Subsection (b)(iii) of
this Section 2. In all respects not governed by the DSTA, the 1940
Act, other applicable law or the requirements of any securities
exchange on which Shares are listed for trading, the Board of
Trustees shall have the power to prescribe additional procedures
necessary or appropriate to accomplish a statutory conversion, Share
conversion or Share exchange, including the power to create one or
more separate statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of the Trust
or any Series or Class thereof into beneficial interests in such
separate statutory trust or trusts (or series or class thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority
of the Trustees, may cause the Trust to sell, convey and transfer
all or substantially all of the assets of the Trust ("sale of Trust
assets") or all or substantially all of the assets associated with
any one or more Series ("sale of such Series' assets") or any one or
more Classes ("sale of such Class's assets"), to another trust,
statutory trust, partnership, limited partnership, limited liability
company, corporation or other association organized under the laws
of any state, or to one or more separate series or class thereof,
or to the Trust to be held as assets associated with one or more
other Series or Classes of the Trust, in exchange for cash, shares
or other securities (including, without limitation, in the case of
a transfer to another Series or Class of the Trust, Shares of such
other Series or Class) with such sale, conveyance and transfer either
(a) being made subject to, or with the assumption by the transferee
of, the liabilities associated with the Trust or the liabilities
associated with the Series or Class the assets of which are so
transferred, as applicable, or (b) not being made subject to, or
not with the assumption of, such liabilities. Any such sale,
conveyance and transfer shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided
however, that the Board of Trustees shall provide at least thirty
(30) days' prior written notice to the Shareholders of the Trust of
any such sale of Trust assets, at least thirty (30) days' prior
written notice to the Shareholders of a particular Series of any sale
of such Series' assets, and at least thirty (30) days' prior written
notice to the Shareholders of a particular Class of any sale of such
Class's assets. Following such sale of Trust assets, the Board of
Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of the Trust (giving due effect to
the assets and liabilities associated with and any other differences
among the various Series the assets associated with which have been
so sold, conveyed and transferred, and due effect to the differences
among the various Classes within each such Series). Following a
sale of such Series' assets, the Board of Trustees shall distribute
such cash, shares or other securities ratably among the Shareholders
of such Series (giving due effect to the differences among the
various Classes within each such Series). Following a sale of such
Class's assets, the Board of Trustees shall distribute such cash,
shares or other securities ratably among the Shareholders of such
Class. If all of the assets of the Trust have been so sold,
conveyed and transferred, the Trust shall be dissolved; and if all
of the assets of a Series or Class have been so sold, conveyed and
transferred, such Series and the Classes thereof, or such Class,
shall be dissolved. In all respects not governed by the DSTA, the
1940 Act or other applicable law, the Board of Trustees shall have
the power to prescribe additional procedures necessary or
appropriate to accomplish such sale, conveyance and transfer,
including the power to create one or more separate statutory trusts
to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the
conversion of Shares into beneficial interests in such separate
statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act,
the Board of Trustees, by vote of a majority of the Trustees, and
without a Shareholder vote, may cause the Trust or any one or more
Series to convert to a master feeder structure (a structure in which
a feeder fund invests all of its assets in a master fund, rather
than making investments in securities directly) and thereby cause
existing Series of the Trust to either become feeders in a master
fund, or to become master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights. No
Shareholder shall be entitled, as a matter of right, to relief as a
dissenting Shareholder in respect of any proposal or action
involving the Trust or any Series or any Class thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing
signed by not less than a majority of the Board of Trustees and, to
the extent required by the 1940 Act or the requirements of any
securities exchange on which Shares are listed for trading, by
approval of such amendment by the Shareholders in accordance with
Article III, Section 6 hereof and Article V hereof. Any such
restatement and/or amendment hereto shall be effective immediately
upon execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated and/or
amended at any time by the Board of Trustees, without Shareholder
approval, to correct any inaccuracy contained therein. Any such
restatement and/or amendment of the Certificate of Trust shall be
executed by at least one (1) Trustee and shall be effective
immediately upon its filing with the office of the Secretary of
State of the State of Delaware or upon such future date as may be
stated therein.
ARTICLE X
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this Declaration
of Trust and in any restatement hereof and/or amendment hereto,
references to this instrument, and all expressions of similar effect
to "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as so restated and/or amended. Headings are placed
herein for convenience of reference only and shall not be taken as a
part hereof or control or affect the meaning, construction or effect
of this instrument. Whenever the singular number is used herein,
the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. Any
references herein to specific sections of the DSTA, the Code or the
1940 Act shall refer to such sections as amended from time to time or
any successor sections thereof. This instrument may be executed in
any number of counterparts, each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created
under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the applicable
provisions of the 1940 Act and the Code; provided, that, all matters
relating to or in connection with the conduct of Shareholders' and
Trustees' meetings (excluding, however, the Shareholders' right to
vote), including, without limitation, matters relating to or in
connection with record dates, notices to Shareholders or Trustees,
nominations and elections of Trustees, voting by, and the validity
of, Shareholder proxies, quorum requirements, meeting adjournments,
meeting postponements and inspectors, which are not specifically
addressed in this Declaration of Trust, in the By-Laws or in the
DSTA (other than DSTA Section 3809), or as to which an ambiguity
exists, shall be governed by the Delaware General Corporation Law,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation, the Shareholders were shareholders of such
Delaware corporation and the Trustees were directors of such Delaware
corporation; provided, further, however, that there shall not be
applicable to the Trust, the Trustees, the Shareholders or any other
Person or to this Declaration of Trust or the By-Laws (a) the
provisions of Sections 3533, 3540 and 3583(a) of Title 12 of the
Delaware Code or (b) any provisions of the laws (statutory or
common) of the State of Delaware (other than the DSTA) pertaining
to trusts which relate to or regulate (i) the filing with any court
or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (ii) affirmative requirements to post bonds
for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or
personal property, (iv) fees or other sums payable to trustees,
officers, agents or employees of a trust, (v) the allocation of
receipts and expenditures to income or principal, (vi) restrictions
or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling,
storage or other manner of holding trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or
limitations on the indemnification, acts or powers of trustees or
other Persons, which are inconsistent with the limitations of
liabilities or authorities and powers of the Trustees or officers of
the Trust set forth or referenced in this Declaration of Trust or
the By-Laws. The Trust shall be a Delaware statutory trust pursuant
to the DSTA, and without limiting the provisions hereof, the Trust
may exercise all powers which are ordinarily exercised by such a
statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and
if the Board of Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940
Act, the Code, the DSTA, or with other applicable laws and
regulations, the conflicting provision shall be deemed not to have
constituted a part of this Declaration of Trust from the time when
such provisions became inconsistent with such laws or regulations;
provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in
any other jurisdiction or any other provision of this Declaration
of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the Trustees
to create hereby a statutory trust pursuant to the DSTA, and thereby
to create the relationship of trustee and beneficial owners within
the meaning of the DSTA between, respectively, the Trustees and each
Shareholder. It is not the intention of the Trustees to create a
general or limited partnership, limited liability company, joint
stock association, corporation, bailment, or any form of legal
relationship other than a statutory trust pursuant to the DSTA.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners
or members of a joint stock association.
Section 5. Use of the Names "Franklin," "Xxxxxxxxx,"
"Fiduciary Trust," and/or "Institutional Fiduciary Trust". The
Board of Trustees expressly agrees and acknowledges that the names
"Xxxxxxxx," "Xxxxxxxxx," "Fiduciary Trust," and
"Institutional Fiduciary Trust" are the sole property of Franklin
Resources, Inc. ("FRI"). FRI has granted to the Trust a
non-exclusive license to use such names as part of the name of the
Trust now and in the future. The Board of Trustees further expressly
agrees and acknowledges that the non-exclusive license granted
herein may be terminated by FRI if the Trust ceases to use FRI or one
of its Affiliates as Investment Adviser or to use other Affiliates
or successors of FRI for such purposes. In such event, the
non-exclusive license may be revoked by FRI and the Trust shall
cease using the names "Franklin," "Xxxxxxxxx," "Fiduciary Trust,"
"Institutional Fiduciary Trust" or any name misleadingly implying a
continuing relationship between the Trust and FRI or any of its
Affiliates, as part of its name unless otherwise consented to by
FRI or any successor to its interests in such names.
The Board of Trustees further understands and agrees that so long as
FRI and/or any future advisory Affiliate of FRI shall continue to
serve as the Trust's Investment Adviser, other registered open- or
closed-end investment companies ("funds") as may be sponsored or
advised by FRI or its Affiliates shall have the right permanently
to adopt and to use the names "Franklin", "Xxxxxxxxx,"
"Fiduciary Trust" and/or "Institutional Fiduciary Trust" in their
names and in the names of any series or Class of shares of
such funds.
IN WITNESS WHEREOF, the Trustees of Franklin Floating Rate Master
Trust named below do hereby make and enter into this Declaration of
Trust as of the date first written above.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
/s/ X. Xxxxxxx Xxxxxx
X. Xxxxxxx Xxxxxx, Trustee /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Trustee
