NAME OF REGISTRANT:
XXXXXXXXX INCOME TRUST
File No. 811-04706
EXHIBIT ITEM: Copies of any material amendments to the
registrant's charter or by-laws
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of
XXXXXXXXX INCOME TRUST
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was
adopted October 18, 2006; current Amended and Restated
Agreement and Declaration of Trust adopted May 18, 2018.)
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED AGENT;
DEFINITIONS.......................1
Section 1. Name ...........................................
............................................................1
Section 2. Offices of the Trust ........................
.........................................................2
Section 3. Registered Agent and Registered Office..........
.......................................2
Section 4. Definitions................................
...............................................................2
ARTICLE II PURPOSE OF TRUST ......................
..............................................................4
ARTICLE III SHARES ...................................
.......................................................................7
Section 1. Division of Beneficial Interest ................
................................................7
Section 2. Ownership of Shares ........................
.......................................................9
Section 3. Sale of Shares.........................
.................................................................9
Section 4. Status of Shares and Limitation of Personal
Liability ...........................9
Section 5. Power of Board of Trustees to Make Tax
Status Election...................10
Section 6. Establishment and Designation of
Series and Classes .........................10
Section 7. Indemnification of Shareholders........
...................................................14
ARTICLE IV THE BOARD OF TRUSTEES ................
......................................................14
Section 1. Number, Election, Term, Removal
and Resignation ...........................14
Section 2. Trustee Action by Written Consent
Without a Meeting ......................15
Section 3. Powers; Other Business Interests;
Quorum and Required Vote ..........15
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 ..............................
....................................................18
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...............20
Section 4. Record Dates ...................................
......................................................21
Section 5. Additional Provisions......................
......................................................22
i
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS;
TRANSFERS ............................................
.....................................................22
Section 1. Determination of Net Asset Value,
Net Income and Distributions .....22
Section 2. Redemptions at the Option of a
Shareholder .......................................24
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 .....................................................
.....................................................26
Section 1. Limitation of Liability....................
.......................................................26
Section 2. Indemnification ...........................
..........................................................27
Section 3. Insurance .................................
..............................................................29
Section 4. Derivative Actions ........................
........................................................29
Section 5. Jurisdiction and Waiver of Jury Trial
..................................................30
ARTICLE VIII CERTAIN TRANSACTIONS.....................
..................................................30
Section 1. Dissolution of Trust or Series ............
...................................................30
Section 2. Merger or Consolidation; Conversion;
Reorganization .......................31
Section 3. Master Feeder Structure ...................
.....................................................33
Section 4. Absence of Appraisal or Dissenters'
Rights ........................................33
ARTICLE IX AMENDMENTS ...........................
................................................................34
Section 1. Amendments Generally .........................
...............................................34
ARTICLE X MISCELLANEOUS .........................
.............................................................34
Section 1. References; Headings; Counterparts .....
................................................34
Section 2. Applicable Law ............................
.........................................................34
Section 3. Provisions in Conflict with Law or
Regulations..................................35
Section 4. Statutory Trust Only ......................
.......................................................35
Section 5. Use of the Names "Franklin," "Xxxxxxxxx,"
"Fiduciary Trust,"
and/or "Institutional Fiduciary Trust".......
............................................35
ii
AMENDED AND RESTATED AGREEMENT AND DECLARATION
OF TRUST OF
XXXXXXXXX INCOME TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION
OF TRUST
made as of this 18th day of May, 2018,
by the Trustees hereunder.
WITNESSETH:
WHEREAS Xxxxxxxxx Income Trust (the "Trust")
was formed on October 18, 2006
under the name "Xxxxxxxxx Income Trust" by its
Trustees by the filing of the Certificate of Trust
with the Office of the Secretary of State of the State
of Delaware pursuant to an Agreement and Declaration
of Trust dated as of October 18, 2006
(the "Original Declaration of Trust"); and
WHEREAS this Trust has been formed to carry on the
business of an open-end management investment company
as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares
into two or more Classes, to issue its Shares in
separate Series, to divide Shares of any Series
into two or more Classes and to issue Classes of
the Trust or the Series, if any, all in accordance
with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all
property coming into their hands as trustees of a
Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act,
as amended from time to time, and the provisions
hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the
Trust may from time to time acquire in any manner
shall be managed and disposed of upon the following
terms and conditions as hereinafter set forth; and
(ii) this Declaration of Trust and the By-Laws shall
be binding in accordance with their terms on every Trustee,
by virtue of having become a Trustee of the Trust, and
on every Shareholder, by virtue of having become a
Shareholder of the Trust, pursuant to the terms
of this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known
as "Xxxxxxxxx Income 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;
Act;
(l) "Interested Person" shall have the meaning
given that term in the 1940
(m) "Investment Adviser" or "Adviser" shall mean a Person,
as defined below, furnishing services to the Trust pursuant
to any investment advisory or investment management
contract described in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole
or any part of any period during (i) which an emergency exists
as a result of which disposal by the Trust of securities
or other assets owned by the Trust is not reasonably
practicable; (ii) which it is not reasonably practicable
for the Trust fairly to determine the net asset value
of its assets; or (iii) such other period
as the Commission may by order permit for the
protection of investors;
(o) "Person" shall mean a natural person, partnership,
limited partnership, limited liability company, trust,
estate, association, corporation, organization,
custodian, nominee or any other individual or entity
in its own or any representative capacity,
in each case, whether domestic or foreign,
and a statutory trust or a foreign statutory or business trust;
1940 Act;
(p) "Principal Underwriter" shall have the meaning
given that term in the
(q) "Series" shall mean each Series of Shares
established and designated under and in accordance
with the provisions of Article III hereof;
(r) "Shares" shall mean the transferable shares
of beneficial interest into which the beneficial
interest in the Trust shall be divided from
time to time, and shall include fractional and whole Shares;
Laws;
(s) "Shareholder" shall mean a record owner
of Shares pursuant to the By-
(t) "Trust" shall mean Xxxxxxxxx Income 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 policie
s 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 thin
g incidental or appurtenant to, or growing out
of, or connected with, its business or purposes,
objects or powers.
The Trust shall not be limited to investing in
obligations maturing before the possible dissolution
of the Trust or one or more of its Series.
Neither the Trust nor the Board of Trustees
shall be required to obtain any court order
to deal with any assets of the Trust or take
any other action hereunder.
The foregoing clauses shall each be construed
as purposes, objects and powers, and it is hereby
expressly provided that the foregoing enumeration
of specific purposes, objects and powers shall not
be held to limit or restrict in any manner the
powers of the Trust, and that they are in furtherance
of, and in addition to, and not in limitation of,
the general powers conferred upon the Trust by the
DSTA and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be
deemed to exclude another, although it be of like
nature, not expressed.
ARTICLE III SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be
divided into Shares, each Share without a par value.
The number of Shares in the Trust authorized
hereunder, and of each Series and Class as may be
established from time to time, is unlimited. The
Board of Trustees may authorize the division of
Shares into separate Classes of Shares and into
separate and distinct Series of Shares and the
division of any Series into separate Classes
of Shares in accordance with
the 1940 Act. The different Series and Classes
shall be established and designated pursuant to
Article III, Section 6 hereof. If no separate
Series or Classes of Series shall be established,
the Shares shall have the rights, powers and duties
provided for herein and in Article III, Section 6
hereof to the extent relevant and not otherwise
provided for herein, and all references to Series
and Classes shall be construed
(as the context may require) to refer to the Trust.
(i) The fact that the Trust shall have one or more
established and designated Classes of the Trust,
shall not limit the authority of the Board of
Trustees to establish and designate additional
Classes of the Trust. The fact that one or more
Classes of the Trust shall have initially been
established and designated without any specific
establishment or designation of a Series
(i.e., that all Shares of the Trust are initially
Shares of one or more Classes) shall not limit
the authority of the Board of Trustees to later
establish and designate a Series and establish
and designate the Class or Classes of the Trust
as Class or Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially
been established and designated without any specific
establishment or designation of Classes (i.e., that
all Shares of such Series are initially of a single Class)
shall not limit the authority of the Board of Trustees
to establish and designate separate Classes of said Series.
The fact that a Series shall have more than one
established and designated Class, shall not limit
the authority of the Board of Trustees to
establish and designate additional Classes of said Series.
(b) The Board of Trustees shall have the power to
issue authorized, but unissued Shares of the Trust,
or any Series and Class thereof, from time to time
for such consideration paid wholly or partly in
cash, securities or other property, as may be
determined from time to time by the Board of
Trustees, subject to any requirements or limitations of the
1940 Act. The Board of Trustees, on behalf of the
Trust, may acquire and hold as treasury shares,
reissue for such consideration and on such terms
as it may determine, or cancel, at its discretion
from time to time, any Shares reacquired by the Trust.
The Board of Trustees may classify, reclassify or
convert any unissued Shares or any Shares of the
Trust or any Series or Class thereof, that were
previously issued and are reacquired, into one
or more Series or Classes that may be established
and designated from time to time and, in connection
therewith, cause some or all of the Shareholders
of the Trust, such Series or Class to become
Shareholders of such other Series or Class.
Notwithstanding the foregoing, the Trust and any
Series thereof may acquire, hold, sell and otherwise
deal in, for purposes of investment or otherwise,
the Shares of any other Series of the Trust or
Shares of the Trust, and such Shares shall not
be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6
of this Article III, each Share shall entitle
the holder to voting rights as provided in Article
V hereof. Shareholders shall have no preemptive
or other right to subscribe for new or additional
authorized, but unissued Shares or other securities
issued by the Trust or any Series thereof.
The Board of Trustees may from time to time
divide or combine the Shares of the Trust or any
particular Series thereof into a greater or
lesser number of Shares of the Trust or that Series,
respectively. Such division or combination shall
not materially change the proportionate beneficial
interests of the holders of Shares of the Trust or
that Series, as the case may be, in the Trust
Property at the time of such division or combination
that is held with respect to the Trust or that
Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an
economic or other interest, may acquire, own, hold
and dispose of Shares in the Trust or any Series and
Class thereof, whether such Shares are authorized
but unissued, or already outstanding, to the same
extent as if such Person were not a Trustee, officer
or other agent of the Trust; and the Trust or any
Series may issue and sell and may purchase such Shares
from any such Person or any such organization,
subject to the limitations, restrictions or other
provisions applicable to the sale or purchase
of such Shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership
of Shares shall be recorded on the books of the Trust
kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained
separately for the Shares of the Trust and each
Series and each Class thereof that has been
established and designated. No certificates certifying
the ownership of Shares shall be issued except
as the Board of Trustees may otherwise determine
from time to time. The
Board of Trustees may make such rules not inconsistent
with the provisions of the 1940 Act as it considers
appropriate for the issuance of Share certificates
, the transfer of Shares of the Trust and each
Series and Class thereof, if any, and similar
matters. The record books of the Trust as kept
by the Trust or any transfer or similar agent,
as the case may be, shall be conclusive as to who
are the Shareholders of the Trust and each Series and
Class thereof and as to the number of Shares of the
Trust and each Series and Class thereof held from
time to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act
and applicable law, the Trust may sell its authorized
but unissued Shares to such Persons, at such times,
on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. Each sale
shall be credited to the individual purchaser's account
in the form of full or fractional Shares of the Trust
or such Series thereof (and Class thereof, if any),
as the purchaser may select, at the net asset value
per Share, subject to Section 22 of the 1940 Act,
and the rules and regulations adopted thereunder;
provided, however, that the Board of Trustees may,
in its sole discretion, permit the Principal Underwriter
to impose a sales charge upon any such sale. Every
Shareholder by virtue of having become a Shareholder
shall be bound by the terms of this Declaration of
Trust. Ownership of Shares shall not make any
Shareholder a third-party beneficiary of any contract
entered into by the Trust or any Series.
Section 4. Status of Shares and Limitation of
Personal Liability. Shares shall be deemed to be
personal property giving to Shareholders only the
rights provided in this Declaration of Trust, the
By-Laws, and under applicable law. Ownership of Shares
shall not entitle the Shareholder to any title in or
to the whole or any part of the Trust Property or
right to call for a partition or division of the
same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners.
Subject to Article VIII, Section 1 hereof, the death,
incapacity, dissolution, termination, or bankruptcy of
a Shareholder during the existence of the Trust and any
Series thereof shall not operate to dissolve the Trust
or any such Series, nor entitle the representative of
any deceased, incapacitated, dissolved, terminated
or bankrupt Shareholder
to an accounting or to take any action in court or
elsewhere against the Trust, the Trustees or any
such Series, but entitles such representative only
to the rights of said deceased, incapacitated, dissolved,
terminated or bankrupt Shareholder under this Declaratio
n 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 b
e 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 tha
t particular Series for payment of such credit, claim,
or contract. In the absence of
an express contractual agreement so limiting the claims
of such creditors, claimants and contract providers
, each creditor, claimant and contract provider shall
be deemed nevertheless to have impliedly agreed to
such limitation.
Subject to the right of the Board of Trustees in its
discretion to allocate General
Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series,
whether such Series is now authorized and existing
pursuant to this Declaration of Trust or is hereafter
authorized and existing pursuant to this Declaration
of Trust, shall be enforceable against the assets
held with respect to that Series only, and not
against the assets of any other Series or the Trust
generally
and none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing
with respect to the Trust generally or any other Series
thereof shall be enforceable
against the assets held with respect to such Series.
Notice of this limitation on liabilities between
and among Series shall be set forth in the Certificate
of Trust pursuant to the DSTA, and upon
the giving of such notice in the Certificate of Trust,
the statutory provisions of Section 3804 of the DSTA
relating to limitations on liabilities between
and among Series (and the statutory effect under
Section 3804 of setting forth such notice in the
Certificate of Trust) shall become applicable to
the Trust and each Series.
Liabilities, debts, obligations, costs, charges,
reserves and expenses related to the distribution
of, and other identified expenses that should or
may properly be allocated to, the Shares of a
particular Class may be charged to and borne solely
by such Class. The bearing of expenses solely by
a particular Class of Shares may be appropriately
reflected (in a manner determined by the Board
of Trustees) and may affect the net asset value
attributable to, and the dividend, redemption and
liquidation rights of, such Class. Each allocation
of liabilities, debts, obligations, costs, charges,
reserves and expenses by or under the direction of
the Board of Trustees shall be conclusive and
binding upon the Shareholders of all Classes for
all purposes. All Persons who have extended credit
that has been allocated to a particular Class,
or who have a claim or contract that has been
allocated to any particular Class, shall look,
and may be required by contract to look, exclusively
to that particular Class for payment of such credit,
claim, or contract.
(c) Dividends, Distributions and Redemptions.
Notwithstanding any other provisions of this Declaration
of Trust, including, without limitation, Article VI hereof,
no dividend or distribution including, without
limitation, any distribution paid upon dissolution
of the Trust or of any Series with respect to
, nor any redemption of, the Shares of any Series or Class
of such Series shall be effected by the Trust other
than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of
this Article III, shall any Shareholder of any particular
Series otherwise have any right or claim against the
assets held with respect to any other Series or the
Trust generally except, in the case of a right or claim
against the assets held with respect to any other Series,
to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series.
The Board of Trustees shall have full discretion, to
the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income
and which items as capital; and each such determination
and allocation shall be conclusive and binding
upon the Shareholders.
(d) Voting. All Shares of the Trust entitled
to vote on a matter shall vote in the aggregate
without differentiation between the Shares of the
separate Series, if any, or
separate Classes, if any; provided that (i) with
respect to any matter that affects only the interests
of some but not all Series, then only the Shares
of such affected Series, voting separately, shall
be entitled to vote on the matter, (ii) with respect
to any matter that affects only the interests of
some but not all Classes, then only the Shares of
such affected Classes, voting separately, shall be
entitled to vote on the matter; and (iii) notwithstanding
the foregoing, with respect to any matter as to which the
1940 Act or other applicable law or regulation requires
voting, by Series or by Class, then the Shares of the
Trust shall vote as prescribed in such law or regulation.
(e) Equality. Each Share of any particular Serie
s 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 i
n accordance with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the authority,
without the approval, vote or consent of the Shareholders
of any Series, unless otherwise required by applicable law,
to combine the assets and liabilities held with respect
to any two or more Series into assets and liabilities
held with respect to a single Series; provided that upon
completion of such combination of Series, the interest of
each Shareholder, in the combined assets and liabilities
held with respect to the combined Series shall equal
the interest of each such Shareholder in the aggregate
of the assets and liabilities held with respect to the
Series that were combined.
(ii) The Board of Trustees shall have the authority,
without the approval, vote or consent of the Shareholders
of any Series or Class, unless otherwise required by
applicable law, to combine, merge or otherwise
consolidate the Shares of two or more Classes of Shares
of a Series with and/or into a single Class of Share
s of such Series, with such designation, preference,
conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, terms and
conditions of redemption and other characteristics as
the Trustees may determine; provided, however, that
the Trustees shall provide written notice to the
affected Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above may be
effected through
share-for-share exchanges, transfers or sales of assets,
Shareholder in-kind redemptions and purchases,
exchange offers, or any other method approved by
the Trustees.
(i) Dissolution or Termination. Any particular
Series shall be dissolved and terminated upon th
e 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 meetin
g 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 th
e 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 fro
m 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 xxx
e 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 wit
h any Persons, including any Affiliates, to provide
such other services to the Trust or one or more of
its Series, as the Board of Trustees determines to
be in the best interests of the Trust, such Series
and its Shareholders.
(d) None of the following facts or circumstances
shall affect the validity of any of the contracts
provided for in this Article IV, Section 7, or disqualify
any Shareholder, Trustee, employee or officer of
the Trust from voting upon or executing the same,
or create any liability or accountability to the Trust,
any Series thereof or the Shareholders, provided that
the establishment of and performance of each such
contract is permissible under the 1940 Act, and
provided further that such Person is authorized
to vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees,
employees or officers of the Trust is a shareholder,
director, officer, partner, trustee, employee, manager,
Adviser, placement agent, Principal Underwriter,
distributor, or Affiliate or agent of or for any Person,
or for any parent or Affiliate of any Person, with
which any type of service contract provided for in
this Article IV, Section 7 may have been or may
hereafter be made, or that any such Person, or any
parent or Affiliate thereof, is a Shareholder or
has an interest in the Trust, or
(ii) the fact that any Person with which any type
of service contract provided for in this Article IV,
Section 7 may have been or may hereafter be made also
has such a service contract with one or more other
Persons, or has other business or interests.
(e) Every contract referred to in this Section 7
is required to comply with this Declaration of Trust,
the By-Laws, the 1940 Act, other applicable law
and any stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions
of Article III, Section 6 hereof, the Shareholders shal
l have the power to vote only (i) on such matters required
by this Declaration of Trust, the By-Laws, the 1940 Act,
other applicable law and any registration statement of
the Trust filed with the Commission, the registration
of which is effective; and (ii) on such other matters
as the Board of Trustees may consider necessary or
desirable. Subject to Article III hereof, the
Shareholder of record (as of the record date
established pursuant to Section
4 of this Article V) of each Share shall be entitled
to one vote for each full Share, and a fractional
vote for each fractional Share. Shareholders shall
not be entitled to cumulative voting in the election
of Trustees or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are
present in person or represented by proxy, shall constitute
a quorum at the Shareholders' meeting, except when a larger
quorum is required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities exchange
on which Shares are listed for trading, in which case such
quorum shall comply with such requirements. When a separate
vote by one or more Series or Classes is required, forty
percent (40%) of the outstanding Shares of each such Series
or Class entitled to vote at a Shareholders' meeting
of such Series or Class, which are present in person or
represented by proxy, shall constitute a quorum at the
Shareholders' meeting of such Series or Class, except
when a larger quorum is required by this Declaration of
Trust, the By-Laws, applicable law or the requirements
of any securities exchange on which Shares of such
Series or Class are listed for trading, in
which case such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III,
Section 6(d), when a quorum is present at any meeting,
a majority of the votes cast shall decide any questions
and a plurality
shall elect a Trustee, except when a larger vote
is required by any provision of this Declaration
of Trust or the By-Laws or by applicable law.
Pursuant to Article III, Section 6(d) hereof,
where a separate vote by Series and, if applicable,
by Class is required, the preceding sentence shall
apply to such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated
as votes present at a Shareholders' meeting; abstentions
and broker non-votes will not be treated as votes cast
at such meeting. Abstentions and broker non-votes
, therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii)
will have no effect on proposals that require a
plurality for approval, or on proposals requiring
an affirmative vote of a majority of votes cast
for approval.
Section 3. Shareholder Action by Written Consent
Without a Meeting. Any action which may be taken at
any meeting of Shareholders may be taken without a
meeting if a consent or consents in writing setting
forth the action so taken is or are signed by the
holders of a majority of the Shares entitled to vote
on such action (or such different proportion thereof
as
shall be required by law, the Declaration of Trust
or the By-Laws for approval of such action) and is
or are received by the secretary of the Trust either:
(i) by the date set by resolution of the Board of
Trustees for the shareholder vote on such action;
or (ii) if no date is set by resolution of the Board,
within 30 days after the record date for such action
as determined by reference to Article V, Section 4(b)
hereof. The written consent for any such action may
be executed in one or more counterparts, each of which
shall be deemed an original, and all of which when taken
together shall constitute one and the same instrument.
A consent transmitted by electronic transmission
(as defined in the DSTA) by a Shareholder or by a Person
or Persons authorized to act for a Shareholder shall be
deemed to be written and signed for purposes of this
Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the
Trust's records. Any Shareholder that has given a
written consent or the Shareholder's proxyholder or
a personal representative of the Shareholder or its
respective proxyholder may revoke the consent by a
writing received by the secretary of the Trust
either: (i) before the date set by resolution
of the Board of Trustees for the shareholder vote
on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after
the record date for such action as determined by
reference to Article V, Section 4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders
entitled to notice of, and to vote at, any meeting
of Shareholders, the Board of Trustees may fix a
record date, which record date shall not precede
the date upon which the resolution fixing the record
date is adopted by the Board of Trustees, and which
record date shall not be more than one hundred and
twenty (120) days nor less than ten (10) days before
the date of any such meeting. A determination of
Shareholders of record entitled to notice of or to
vote at a meeting of Shareholders shall apply to any
adjournment of the meeting; provided, however, that
the Board of Trustees may fix a new record date for
the adjourned meeting and shall fix a new record date
for any meeting that is adjourned for more than one
hundred and eighty (180) days from the record date
set for the original meeting. For purposes of determining
the Shareholders entitled to vote on any action without
a meeting, the Board of Trustees may fix a record date,
which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the
Board of Trustees, and which record date shall not be
more than thirty (30) days after the date upon which
the resolution fixing the record date is adopted by
the Board of Trustees.
(b) If the Board of Trustees does not so fix a
record date:
(i) the record date for determining Shareholders
entitled to notice of, and to vote at, a meeting of
Shareholders shall be at the close of business on the
day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(ii) the record date for determining Shareholders
entitled to vote on any action by consent in writing
without a meeting of Shareholders, (1) when no prior
action by the Board of Trustees has been taken, shall
be the day on which the first signed written consent
setting forth the action taken is delivered to
the Trust, or
(2) when prior action of the Board of Trustees has
been taken, shall be at the close of business on
the day on which the Board of Trustees adopts the
resolution taking such prior action.
(c) For the purpose of determining the Shareholders
of the Trust or any Series or Class thereof who are
entitled to receive payment of any dividend or of any
other distribution of assets of the Trust or any Series
or Class thereof (other than in connection with
a dissolution
of the Trust or a Series, a merger, consolidation,
conversion, reorganization, or any other transactions,
in each case that is governed by Article VIII of the
Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which
record date shall not precede the date upon which
the resolution fixing the record date is adopted,
and which record date shall not be more than sixty
(60) days before the date for the payment of such
dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record
dates and related payment dates at periodic intervals
of any duration for the payment of such dividend
and/or such other distribution; and/or
(iii) delegate to an appropriate officer or officers
of the Trust the determination of such periodic record
and/or payments dates with respect to such dividend
and/or such other distribution.
Nothing in this Section shall be construed as precluding
the Board of Trustees from setting different record
dates for different Series or Classes.
Section 5. Additional Provisions. The By-Laws
may include further provisions for
Shareholders' votes, meetings and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income
and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board
of Trustees shall have the power to determine from time to
time the offering price for authorized, but unissued,
Shares of the Trust or any Series or Class thereof,
respectively, that shall yield to the Trust or such
Series or Class not less than the net asset value
thereof, in addition to any amount of applicable sales
charge to be paid to the Principal Underwriter or the
selling broker or dealer in connection with the sale o
f
such Shares, at which price the Shares of the Trust or
such Series or Class, respectively, shall be offered for
sale, subject to any other requirements or limitations of the
1940 Act.
(b) Subject to Article III, Section 6 hereof, the
Board of Trustees may, subject to the 1940 Act,
prescribe (or delegate to any officer of the Trust
or any other Person the right to prescribe) such bases
and time (including any methodology or plan) for
determining the net asset value per Share of the Trust
or any Series or Class thereof, or net income
attributable to the Shares of the Trust or any
Series or Class thereof or the declaration and
payment of dividends
and distributions on the Shares of the Trust or any
Series or Class thereof, and the method of determining
the Shareholders to whom dividends and distributions are
payable, as it may deem necessary or desirable, and such
dividends and distributions may vary between the Classes
to reflect differing allocations of the expenses of the
Trust between such Classes to such extent and for such
purposes as the Trustees may deem appropriate. Without
limiting the generality of the foregoing, but subject
to applicable federal law, including the 1940 Act,
any dividend or distribution may be paid in cash
and/or securities or other property, and the
composition of any such distribution shall be determined
by the Trustees (or by any officer of the Trust or
any other Person to whom such authority has been
delegated by the Trustees) and may be different
among Shareholders including differences among
Shareholders of the same Series or Class.
(c) The Shareholders of the Trust or any Series
or Class, if any, shall be entitled to receive
dividends and distributions, when, if and as declared
by the Board of Trustees with respect thereto, provided
that with respect to Classes, such dividends and
distributions shall comply with the 1940 Act.
The right of Shareholders to receive dividends
or other distributions on Shares of any Class may be
set forth in a plan adopted by the Board of Trustees
and amended from time to time pursuant to the 1940 Act.
No Share shall have any priority or preference over any
other Share of the Trust with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant
to Article VIII, Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into Series
thereof, no Share of a particular Series shall have any
priority or preference over any other Share of the same
Series with respect to dividends or distributions paid
in the ordinary course of business or
distributions upon dissolution of the Trust or of such
Series made pursuant to Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into
Classes thereof, no Share of a particular Class shall
have any priority or preference over any other Share of
the same Class with respect to dividends or
distributions paid in the ordinary course of
business or
distributions upon dissolution of the Trust
made pursuant to Article
VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided
into Classes thereof, no Share of a particular
Class of such Series shall have any priority or
preference over any other Share of the same Class
of such Series with respect to dividends or
distributions paid in the ordinary course of
business or distributions upon dissolution of
such Series made pursuant to Article VIII,
Section 1 hereof.
All dividends and distributions shall be made
ratably among all Shareholders of the Trust,
a particular Class of the Trust, a particular
Series, or a particular Class of a Series from
the Trust Property held with respect to the Trust,
such Series or such Class, respectively, according
to the number of Shares of the Trust, such Series
or such Class held of record by such Shareholders
on the record date for any dividend or
distribution; provided however, that
(iv) if the Shares of the Trust are divided into
Series thereof, all dividends and distributions
from the Trust Property and, if applicable, held
with respect to such Series, shall be distributed
to each Series thereof according to the net asset
value computed for such Series and within such
particular Series, shall be distributed ratably
to the Shareholders of such Series according to
the number of Shares of such Series held of record
by such Shareholders on the record date for any
dividend or distribution; and
(v) if the Shares of the Trust or of a Series
are divided into Classes thereof, all dividends
and distributions from the Trust Property and,
if applicable, held with respect to the Trust
or such Series, shall be distributed to each
Class thereof according to the net asset value
computed for such Class and within such particular
Class, shall be distributed ratably to the
Shareholders of such Class according to the number
of Shares of such Class held of record by such
Shareholders on the record date for any dividend
or distribution.
Dividends and distributions may be paid in cash,
in kind or in Shares.
(d) Before payment of any dividend there may
be set aside out of any funds of the Trust, or
the applicable Series thereof, available for
dividends such sum or sums as the Board of Trustees
may from time to time, in its absolute discretion,
think proper as a reserve fund to meet contingencies,
or for equalizing dividends, or for repairing or
maintaining any property of the Trust, or any Series
thereof, or for such other lawful purpose as the
Board of Trustees shall deem to be in the best
interests of the Trust, or the applicable Series,
as the case may be, and the Board of Trustees may
abolish any such reserve in the manner in which
the reserve was created.
Section 2. Redemptions at the Option of a
Shareholder. Unless otherwise provided in the
prospectus of the Trust relating to the Shares,
as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are
offered by any Shareholder for redemption upon the
presentation of a proper instrument of transfer
together with a request directed to the Trust or
a Person designated by the Trust that the Trust
purchase such Shares and/or in accordance with
such other procedures for redemption as the Board
of Trustees may from time to time authorize.
If certificates have been issued to a Shareholder,
any request for redemption by such Shareholder must
be accompanied by surrender of any outstanding
certificate or certificates for such Shares in
form for transfer, together with such proof of the
authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper
stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the
net asset value thereof as determined by the Trustees
(or by such Person to whom such determination has
been delegated) (excluding any applicable redemption
fee or sales load), in accordance with this Declaration
of Trust, the By-Laws, the 1940 Act and other
applicable law. Payments for Shares so redeemed
by the Trust shall be made in cash, except payment
for such Shares may, at the option of the Board
of Trustees, or such officer or officers as it
may duly authorize in its complete discretion,
be made in kind or partially in cash and partially
in kind. In case of any payment in kind, the Board
of Trustees, or its authorized officers, shall have
absolute discretion as to what security or securities
of the Trust or the applicable Series shall be
distributed in kind and the amount of the same;
and the securities shall be valued for purposes
of distribution at the value at which they were
appraised in computing the then current net asset
value of the Shares, provided that any Shareholder
who cannot legally acquire securities so distributed
in kind shall receive cash to the extent permitted
by the 1940 Act. Shareholders shall bear the expenses
of in-kind transactions, including, but not limited
to, transfer agency fees, custodian fees and costs
of disposition of such securities.
(c) Payment by the Trust for such redemption
of Shares shall be made by the Trust to the
Shareholder within seven days after the date
on which the redemption request is received
in proper form and/or such other procedures
authorized by the Board of Trustees are complied
with; provided, however, that if payment shall
0 be made other than exclusively in cash, any
securities to be delivered as part of such payment
shall be delivered as promptly as any necessary
transfers of such securities on the books of the
several corporations or other Person whose
securities are to be delivered practicably
can be made, which may not necessarily occur
within such seven-day period. In no case shall
the Trust be liable for any delay of any
corporation or other Person in transferring
securities selected for delivery as all
or part of any payment in kind.
(d) The obligations of the Trust set forth
in this Section 2 are subject to the provision
that such obligations may be suspended or postponed
by the Board of Trustees (1) during any time the
New York Stock Exchange (the "Exchange") is closed
for other than weekends or holidays; (2) if permitted
by the rules of the Commission, during periods
when trading on the Exchange is restricted; or
(3) during any National Financial Emergency. The
Board of Trustees may, in its discretion, declare
that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on
the first business day on which the Exchange shall
have reopened or the period specified above shall
have expired (as to which, in the absence of an
official ruling by the Commission, the determination
of the Board of Trustees shall be conclusive).
In the case of a suspension of the right of
redemption as provided herein, a Shareholder
may either withdraw the request for redemption
or receive payment based on the net asset value
per Share next determined after the termination
of such suspension, less any fees imposed on
such redemption.
(e) The right of any Shareholder of the Trust
or any Series or Class thereof to receive dividends
or other distributions on Shares redeemed and
all other rights of such Shareholder with
respect to the Shares so redeemed, except
the right of such Shareholder to
receive payment for such Shares, shall cease
at the time the purchase price of such Shares
shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the
Trust. At the option of the Board of
Trustees the Trust may, from time to time,
without the vote of the Shareholders, but
subject to
the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject
to such conditions and for such reasons as
may be established from time to time by the Board of
Trustees, including, without limitation,
(i) the determination of the Trustees that
direct or indirect ownership of Shares of the
Trust or any Series has or may become concentrated
in such Shareholder to an extent that would
disqualify any Series as a regulated investment
company under the Code (or any successor statute
thereto), (ii) the failure of a Shareholder to
supply a tax identification number if required
to do so, or to have the minimum investment required
(which may vary by Series or Class), (iii) if the
Share activity of the account or ownership of Shares
by a particular Shareholder is deemed by the
Trustees either to affect adversely the management of
the Trust or any Series or Class or not to be in the
best interests of the remaining Shareholders of the
Trust or any Series or Class or (iv) the failure of
a Shareholder to pay when due for the purchase of
Shares issued to him. Any such redemption shall
be effected at the redemption price and in the
manner provided in this Article VI.
Section 4. Transfer of Shares. Shares shall
be transferable in accordance with the provisions
of the By-Laws.
ARTICLE VII LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent"
means any Person who is or was a Trustee, officer,
employee or other agent of the Trust or is or was
serving at the request of the Trust as a trustee,
director, officer, employee or other agent of another
foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; "Proceeding"
means any threatened, pending or completed action
or proceeding, whether civil, criminal, administrative
or investigative; and "Expenses" include without
limitation attorneys' fees and any expenses of
establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust
and to any Shareholder for any act or omission
that constitutes a bad faith violation of the
implied contractual covenant of good faith and
fair dealing, for such Agent's own willful misfeasance,
bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Agent
(such conduct referred to herein as "Disqualifying
Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1
and to the fullest extent that limitations on the
liability of Agents are permitted by the DSTA, the
Agents shall not be responsible or liable in any
event for any act or omission of any other Agent
of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity
as such, shall be personally liable to any Person,
other than the Trust or a Shareholder to the extent
provided in subsections (b) and (c) of this Section 1,
for any act, omission or obligation of the Trust or
any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust
shall, in the performance of his or her duties,
be fully and completely justified and protected
with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account
or other records of the Trust, upon an opinion of
counsel, or upon reports made to the Trust by any
of its officers or employees or by the Investment
Adviser, the Principal Underwriter, any other Agent,
selected dealers, accountants, appraisers or other
experts or consultants, regardless of whether such
counsel or expert may also be a Trustee, as to matters
the Trustee, officer or employee of the Trust reasonably
believes are within such Person's professional or
expert competence. The officers and Trustees may
obtain the advice of counsel or other experts with
respect to the meaning and operation of this
Declaration of Trust, the By-Laws, applicable law
and their respective duties as officers or Trustees.
No such officer or Trustee shall be liable for any
act or omission in accordance with such advice,
records and/or reports and no inference concerning
liability shall arise from a failure to follow such
advice, records and/or reports. The officers and
Trustees shall not be required to give any bond
hereunder, nor any surety if a bond is required
by applicable law.
(f) The failure to make timely collection of
dividends or interest, or to take timely action
with respect to entitlements, on the Trust's
securities issued in emerging countries, shall
not be deemed to be negligence or other fault on
the part of any Agent, and no Agent shall have any
liability for such failure or for any loss or damage
resulting from the imposition by any government of
exchange control restrictions which might affect the
liquidity of the Trust's assets or from any war or
political act of any foreign government to which such
assets might be exposed, except, in the case of a
Trustee or officer, for liability resulting from such
Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this
Article applies to events occurring at the time a
Person serves as an Agent whether or not such Person
is an Agent at the time of any Proceeding in which
liability is asserted.
(h) No amendment or repeal of this Article shall
adversely affect any right or protection of an Agent
that exists at the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall
indemnify, out of Trust Property, to the fullest extent
permitted under applicable law, any Person who was
or is a party, potential party or non-party witness
or is threatened to be made a party, potential party
or non- party witness to any Proceeding by reason of
the fact that such Person is or was an Agent of the
Trust, against Expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred
in connection with such Proceeding if such Person
acted in good faith or in the case of a criminal
proceeding, had no reasonable cause to believe
the conduct of such Person was
unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or plea
of nolo contendere or its equivalent shall not of
itself create a presumption that the Person did not
act in good faith or that the Person had reasonable
cause to believe that the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding
any provision to the contrary contained herein, there
shall be no right to indemnification for any liability
arising by reason of the Agent's Disqualifying Conduct.
In respect of any claim, issue or matter as to which
that Person shall have been adjudged to be liable
in the performance of that Person's duty
to the Trust or the Shareholders, indemnification shall
be made only to the extent that the court in which
that action was brought shall determine, upon
application or otherwise, that in view of all the
circumstances of the case, that Person was not liable
by reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under
this Article shall be made by the Trust if authorized
in the specific case on a determination that
indemnification of the Agent is proper in the
circumstances by (i) a final decision on the merits
by a court or other body before whom the proceeding
was brought that the Agent was not liable by reason
of Disqualifying Conduct (including, but not limited
to, dismissal of either a court action or an
administrative proceeding against the Agent for
insufficiency of evidence of any Disqualifying Conduct)
or, (ii) in the absence of such a decision, a
reasonable determination, based upon a review of the
facts, that the Agent was not liable by reason of
Disqualifying Conduct, by (1) the vote of a majority
of a quorum of the Trustees who are not
(x) "interested persons" of the Trust
as defined in Section 2(a)(19) of the 1940 Act,
(y) parties to the proceeding, or (z) parties who
have any economic or other interest in connection
with such specific case (the "disinterested, non-party
Trustees"); or (2) by independent legal counsel
in a written opinion.
(d) Advancement of Expenses. Expenses incurred
by an Agent in defending any Proceeding may be advanced
by the Trust before the final disposition of the
Proceeding on receipt of an undertaking by or on
behalf of the Agent to repay the amount of the advance
if it shall be determined ultimately that the Agent
is not entitled to be indemnified as authorized in
this Article; provided, that at least one of the
following conditions for the advancement of expenses
is met: (i) the Agent shall provide a security for his
undertaking, (ii) the Trust shall be insured against
losses arising by reason of any lawful advances, or
(iii) a majority of a quorum of the disinterested,
non-party Trustees of the Trust, or an independent
legal counsel in a written opinion, shall determine,
based on a review of readily available facts (as opposed
to a full trial- type inquiry), that there is reason
to believe that the Agent ultimately will be found
entitled to indemnification.
(e) Other Contractual Rights. Nothing contained
in this Article shall affect
any right to indemnification to which Persons other
than Trustees and officers of the Trust or any
subsidiary thereof may be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan.
This Article does not apply to any Proceeding
against any trustee, investment manager or other
fiduciary of an employee benefit plan in that
Person's capacity as such, even though that Person
may also be an Agent of the Trust as defined in
Section 1 of this Article. Nothing contained in
this Article shall limit any right to indemnification
to which such a trustee, investment manager, or
other fiduciary may be entitled
by contract or otherwise which shall be enforceable
to the extent permitted by applicable law other
than this Article.
(g) Joint and Several Obligations. Notwithstanding
any other provision in this Declaration of Trust to
the contrary, any amount of indemnification and any
advancement of expenses that any Agent is entitled
to be paid under Section 2 shall be deemed to be
joint and several obligations of the Trust and each
Series, and the assets of the Trust and each Series
shall be subject to the claims of any Agent therefor
under this Article VII; provided that any such
liability, expense or obligation may be allocated
and charged by the Board of Trustees between
or among the Trust and/or any one or more Series
(and Classes) in such manner as the Board of
Trustees in its sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent
permitted by applicable law, the Board of Trustees
shall have the authority to purchase with Trust
Property, insurance for liability and for all
Expenses reasonably incurred or paid or expected
to be paid by an Agent in connection with any
Proceeding in which such Agent becomes involved
by virtue of such Agent's actions, or omissions to
act, in its capacity or former capacity with the
Trust, whether or not the Trust would have the
power to indemnify such Agent against such liability.
Section 4. Derivative Actions. In addition
to the requirements set forth in Section
3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the
Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make
a pre-suit demand upon the Board of Trustees to
bring the subject action unless an effort to cause
the Board of Trustees to bring such an action is
not likely to succeed. For purposes of this Section 4,
a demand on the Board of Trustees shall only be deemed
not likely to succeed and therefore excused if a
majority of the Board of Trustees, or a majority
of any committee established to consider the merits
of such action, is composed of Trustees who are not
"independent trustees" (as such term is defined
in the DSTA).
(b) Unless a demand is not required under
paragraph (a) of this Section 4, Shareholders
eligible to bring such derivative action under
the DSTA who hold at least 10% of the outstanding
Shares of the Trust, or 10% of the outstanding Shares
of the Series or Class to which such action relates,
shall join in the request for the Board of Trustees
to commence such action; and
(c) Unless a demand is not required under paragraph
(a) of this Section 4, the Board of Trustees must
be afforded a reasonable amount of time to consider
such Shareholder request and to investigate the basis
of such claim. The Board of Trustees shall be
entitled to retain counsel or other advisors in
considering the merits of the request and shall
require an undertaking by the Shareholders making
such request to reimburse the Trust for the expense
of any such advisors in the event that the Board
of Trustees determine not to bring such action.
For purposes of this Section 4, the Board of Trustees
may designate a committee of one Trustee to consider
a Shareholder demand if necessary to create a
committee with a majority of Trustees who are
"independent trustees" (as such term is defined
in the DSTA).
In addition to all suits, claims or other actions
(collectively, "claims") that under applicable
law must be brought as derivative claims, each
Shareholder of the Trust or any Series or Class
thereof agrees that any claim that affects all
Shareholders of a Series or Class equally, that is,
proportionately based on their number of Shares in
such Series or Class, must be brought as a derivative
claim subject to this Section 4 irrespective of whether
such claim involves a violation of the Shareholders'
rights under this Declaration of Trust or any other
alleged violation of contractual or individual rights
that might otherwise give rise to a direct claim.
Section 5. Jurisdiction and Waiver of Jury Trial.
In accordance with Section 3804(e) of the DSTA any
suit, action or proceeding brought by or in the right
of any Shareholder or any person claiming any interest
in any Shares seeking to enforce any provision of,
or based on any matter arising out of, or in connection
with, this Declaration of Trust or the Trust, any Series
or Class or any Shares, including any claim of any
nature against the Trust, any Series or Class, the
Trustees or officers of the Trust, shall be brought
exclusively in the Court of Chancery of the State
of Delaware to the extent there is subject matter
jurisdiction in such court for the claims asserted
or, if not, then in the Superior Court of the State
of Delaware, and all Shareholders and other such
Persons hereby irrevocably consent to the jurisdiction
of such courts (and the appropriate appellate courts
therefrom) in any such suit, action or proceeding and
irrevocably waive, to the fullest extent permitted by
law, any objection they may make now or hereafter have
to the laying of the venue of any such suit, action
or proceeding in such court or that any such suit,
action or proceeding brought in any such court has
been brought in an inconvenient forum and further,
in connection with any such suit, action, or proceeding
brought in the Superior Court in the State of Delaware,
all Shareholders and all other such Persons irrevocably
waive the right to a trial by jury to the fullest extent
permitted by law. All Shareholders and other such Persons
agree that service of summons, complaint or other
process in connection with any proceedings may be
made by registered or certified mail or by overnight
courier addressed to such Person at the address shown
on the books and records of the Trust for such Person
or at the address of the Person shown on the books
and records of the Trust with respect to the Shares
that such Person claims an interest in. Service of
process in any such suit, action or proceeding
against the Trust or any Trustee or officer of the
Trust may be made at the address of the Trust's
registered agent
in the State of Delaware. Any service so made shall
be effective as if personally made in the
State of Delaware.
ARTICLE VIII CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series.
The Trust and each Series shall have
perpetual existence, except that the Trust (or a
particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote
of the holders of not less than a majority of the
Shares of the Trust cast, or (ii) at the discretion
of the Board of Trustees either
(A) at any time there are no Shares outstanding of
the Trust, or (B) upon prior written notice to the
Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon
the vote of the holders of not less than a majority
of the Shares of such Series cast, or (ii) at the
discretion of the Board of
Trustees either (A) at any time there are no Shares
outstanding of such Series, or (B) upon prior written
notice to the Shareholders of such Series; or
(c) With respect to the Trust (or a particular
Series), upon the occurrence of a dissolution or
termination event pursuant to any other provision
of this Declaration of Trust (including Article VIII,
Section 2) or the DSTA; or
the Trust.
(d) With respect to any Series, upon any event that
causes the dissolution of
Upon dissolution of the Trust (or a particular Series,
as the case may be), the Board of Trustees shall (in
accordance with Section 3808 of the DSTA) pay or make
reasonable provision to pay all claims and obligations
of the Trust and/or each Series (or the particular
Series, as the case may be), including, without
limitation, all contingent, conditional or unmatured
claims and obligations known to the Trust, and
all claims and obligations which are known to the
Trust, but for which the identity of the claimant
is unknown. If there are sufficient assets held
with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid
in full and any such provisions for payment shall
be made in full. If there are insufficient assets
held with respect to the Trust and/or each Series
of the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid
or provided for according to their priority and,
among claims and obligations of equal priority,
ratably to the extent of assets available therefor.
Any remaining assets (including, without limitation,
cash, securities or any combination thereof) held with
respect to the Trust and/or each Series of the Trust
(or the particular Series, as the case may be) shall
be distributed to the Shareholders of the Trust
and/or each Series of the Trust (or the particular
Series, as the case
may be) ratably according to the number of Shares
of the Trust and/or such Series thereof (or the
particular Series, as the case may be) held of record
by the several Shareholders on the date for such
dissolution distribution; provided, however, that
if the Shares of the Trust or a Series are divided
into Classes thereof, any remaining assets (including,
without limitation, cash, securities or any combination
thereof) held with respect to the Trust or such
Series, as applicable, shall be distributed to
each Class of the Trust or such Series according
to the net asset value computed for such Class and
within such particular Class, shall be distributed
ratably to the Shareholders of such Class according
to the number of Shares of such Class held of record
by the several Shareholders on the date for such
dissolution distribution. Upon the winding up of the
Trust in accordance with Section 3808 of the DSTA
and its termination, any one (1) Trustee shall
execute, and cause to be filed, a certificate of
cancellation, with the office of the Secretary of
State of the State of Delaware in accordance with
the provisions of Section 3810 of the DSTA.
In connection with the dissolution and liquidation
of the Trust or the termination of any Series or any
Class, the Trustees may provide for the establishment
and utilization of a liquidating trust or similar vehicle.
Section 2. Merger or Consolidation; Conversion;
Reorganization.
(a) Merger or Consolidation. Pursuant to an
agreement of merger or consolidation, the Board
of Trustees, by vote of a majority of the Trustees,
may cause the Trust to merge or consolidate with or
into one or more statutory trusts or "other business
entities" (as defined in Section 3801 of the DSTA)
formed or organized or existing under the laws of the
State of Delaware or any other state of the United
States or any foreign country or other foreign
jurisdiction. Any such merger or consolidation
shall not require the vote of the Shareholders
unless such vote is required by the 1940 Act;
provided however, that the Board of Trustees shall
provide at least thirty (30) days' prior written
notice to the Shareholders of such merger or
consolidation. By reference to Section 3815(f)
of the DSTA, any agreement of merger or consolidation
approved in accordance with this Section 2(a) may,
without a Shareholder vote unless required by the
1940 Act or the requirements of any securities exchange
on which Shares are listed for trading, effect any
amendment to this Declaration of Trust or the By-Laws
or effect the adoption of a new governing instrument
if the Trust is the surviving or resulting statutory
trust in the merger or consolidation, which amendment
or new governing instrument shall be
effective at the effective time or date of the merger
or consolidation. In all respects not governed by the
DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares
are listed for trading, the Board of Trustees shall
have the power to prescribe additional procedures
necessary or appropriate to accomplish a merger
or consolidation,
including the power to create one or more separate
statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion
of Shares into beneficial interests in such separate
statutory trust or trusts. In connection with any
merger or consolidation, if the Trust is the surviving
or resulting statutory trust, any one (1) Trustee shall
execute, and cause to be filed, a certificate of merger
or consolidation in accordance with Section 3815 of
the DSTA.
(b) Conversion. The Board of Trustees, by vote
of a majority of the Trustees, may cause (i) the
Trust to convert to an "other business entity"
(as defined in Section 3801 of the DSTA) formed
or organized under the laws of the State of Delaware
as permitted pursuant to Section 3821 of the DSTA;
(ii) the Shares of the Trust or any Series or Class
to be converted into beneficial interests in another
statutory trust (or series or class thereof) created
pursuant to this Section 2 of this Article VIII, or
(iii) the Shares to be exchanged under or pursuant
to any state or federal statute to the extent
permitted by law. Any such statutory conversion,
Share conversion
or Share exchange shall not require the vote of the
Shareholders unless such vote is required by the
1940 Act; provided however, that the Board of Trustees
shall provide at least thirty (30) days' prior written
notice to the Shareholders of the Trust of any
conversion of Shares of the
Trust pursuant to Subsections (b)(i) or (b)(ii) of
this Section 2 or exchange of Shares of the Trust
pursuant to Subsection (b)(iii) of this Section 2,
and at least thirty (30) days' prior written notice
to the Shareholders of a particular Series or Class
of any conversion of Shares of such Series or Class
pursuant to Subsection (b)(ii) of this Section 2 or exchange
of Shares of such Series or Class pursuant to Subsection
(b)(iii) of this Section 2. In all respects not
governed by the DSTA, the 1940 Act, other applicable
law or the requirements of any securities exchange
on which Shares are listed for trading, the Board
of Trustees shall have the power to prescribe
additional procedures necessary or appropriate
to accomplish a statutory conversion, Share
conversion or Share exchange, including the power
to create one or more separate statutory trusts
to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred
and to
provide for the conversion of Shares of the Trust or
any Series or Class thereof into beneficial interests
in such separate statutory trust or trusts (or
series or class thereof).
(c) Reorganization. The Board of Trustees,
by vote of a majority of the Trustees, may cause
the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust
("sale of Trust assets") or all or substantially
all of the assets associated with any one or
more Series ("sale of such Series' assets") or
any one or more Classes ("sale of such Class's
assets"), to another trust, statutory trust,
partnership, limited partnership, limited liability
company, corporation or other association organized
under the laws of any state, or to one or more
separate series or class thereof, or to the Trust
to be held as assets associated with one or more
other Series or Classes of the Trust, in exchange
for cash, shares or other securities (including,
without limitation, in the case of a transfer to
another Series or Class of the Trust, Shares of
such other Series or Class) with such sale,
conveyance and transfer either (a) being made
subject to, or with the assumption by the transferee
of, the liabilities associated with the Trust
or the liabilities associated with the Series
or Class the assets of which are so transferred,
as applicable, or (b) not being made subject to,
or not with the assumption of, such liabilities.
Any such sale, conveyance and transfer shall not
require the vote of the Shareholders unless such
vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at least
thirty (30) days' prior written notice to the
Shareholders of the Trust of any such sale of
Trust assets, at least thirty (30) days' prior
written notice to the Shareholders of a particular
Series of any sale of such Series' assets, and at
least thirty (30) days' prior written notice to
the Shareholders of a particular Class of any sale
of such Class's assets. Following such sale of
Trust assets, the Board of Trustees shall distribute
such cash, shares or other securities ratably among
the Shareholders of the Trust (giving due effect
to the assets and liabilities associated with and
any other differences among the various Series the
assets associated with which have been so sold,
conveyed and transferred, and due effect to the
differences among the various Classes within each
such Series). Following a sale of such Series'
assets, the Board of Trustees shall distribute
such cash, shares or other securities ratably
among the Shareholders of such Series (giving
due effect to the differences among the various
Classes within each such Series).
Following a sale of such Class's assets, the Board
of Trustees shall distribute such cash, shares
or other securities ratably among the Shareholders
of such Class. If all of the assets of the Trust
have been so sold, conveyed and transferred, the
Trust shall be dissolved; and if all of the assets
of a Series or Class have been so sold, conveyed
and transferred, such Series and the Classes thereof,
or such Class, shall be dissolved. In all respects
not governed by the DSTA, the 1940
Act or other applicable law, the Board of Trustees
shall have the power to prescribe additional
procedures necessary or appropriate to accomplish
such sale, conveyance and transfer, including the
power to create one or more separate statutory
trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may
be transferred and to provide for the conversion
of Shares into beneficial interests in such
separate statutory trust or trusts.
Section 3. Master Feeder Structure. If
permitted by the 1940 Act, the Board of Trustees,
by vote of a majority of the Trustees, and without
a Shareholder vote, may cause the Trust or any one
or more Series to convert to a master feeder structure
(a structure in which a feeder fund invests all of its
assets in a master fund, rather than making investments
in securities directly) and thereby cause existing
Series of the Trust to either become feeders in a
master fund, or to become master funds in which other
funds are feeders.
Section 4. Absence of Appraisal or Dissenters'
Rights. No Shareholder shall be entitled, as a
matter of right, to relief as a dissenting Shareholder
in respect of any proposal or action involving the
Trust or any Series or any Class thereof.
ARTICLE IX AMENDMENTS
Section 1. Amendments Generally. This Declaration
of Trust may be restated and/or
amended at any time by an instrument in writing signed
by not less than a majority of the Board of Trustees
and, to the extent required by the 1940 Act or the
requirements of any securities exchange on which Shares
are listed for trading, by approval of such amendment
by the Shareholders in accordance with Article III,
Section 6 hereof and Article V hereof. Any such
restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such
future date and time as may be stated therein. The
Certificate of Trust shall be restated and/or amended
at any time by the Board of Trustees, without
Shareholder approval, to correct any inaccuracy
contained therein. Any such restatement and/or
amendment of the Certificate of Trust shall be executed
by at least one (1) Trustee and shall be effective
immediately upon its filing with the office of the
Secretary of State of the State of Delaware or upon
such future date as may be stated therein.
ARTICLE X MISCELLANEOUS
Section 1. References; Headings; Counterparts.
In this Declaration of Trust and in
any restatement hereof and/or amendment hereto,
references to this instrument, and all expressions
of similar effect to "herein," "hereof" and "hereunder,"
shall be deemed to refer to this instrument as so
restated and/or amended. Headings are placed herein
for convenience of reference only and shall not be
taken as a part hereof or control or affect the
meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the
same shall include the plural; and the neuter,
masculine and feminine genders shall include each
other, as applicable. Any references herein to
specific sections of the DSTA, the Code or the 1940
Act shall refer to such sections as amended from time
to time or any successor sections thereof. This
instrument may be executed in any number of
counterparts, each of which shall be deemed
an original.
Section 2. Applicable Law.This Declaration
of Trust is created under and is to be governed
by and construed and administered according to
the laws of the State of Delaware and the
applicable provisions of the 1940 Act and the
Code; provided, that, all matters relating to or
in connection with the conduct of Shareholders'
and Trustees' meetings (excluding, however,
the Shareholders' right to vote), including,
without limitation, matters relating to or in
connection with record dates, notices to Shareholders
or Trustees, nominations and elections of Trustees,
voting by, and the validity of, Shareholder proxies,
quorum requirements, meeting adjournments, meeting
postponements and inspectors, which are not
specifically addressed in this Declaration
of Trust, in the By-Laws or in the DSTA (other
than DSTA Section 3809), or as to which an
ambiguity exists, shall be governed by the
Delaware General Corporation Law, and judicial
interpretations thereunder, as if the Trust
were a Delaware corporation, the Shareholders
were shareholders of such Delaware corporation
and the Trustees were directors of such Delaware
corporation; provided, further, however, that
there shall not be applicable to the Trust, the
Trustees, the Shareholders or any other Person
or to this Declaration of Trust or the By-Laws (a)
the provisions of Sections 3533, 3540 and 3583(a)
of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common)
of the State of Delaware (other than the DSTA)
pertaining to trusts which relate to or regulate
(i) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee
fees and charges, (ii) affirmative requirements to
post bonds for trustees, officers, agents or employees
of a trust, (iii) the necessity for obtaining court
or other governmental approval concerning the
acquisition, holding or disposition of real or
personal property, (iv) fees or other sums payable
to trustees, officers,
agents or employees of a trust, (v) the allocation
of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments
or requirements relating to the titling, storage or
other manner of holding trust assets, or (vii) the
establishment of fiduciary or other standards or
responsibilities or limitations on the indemnification
, acts or powers of trustees or other Persons, which
are inconsistent with the limitations of liabilities
or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this
Declaration of Trust or the By-Laws. The Trust
shall be a Delaware statutory trust pursuant to
the DSTA, and without limiting the provisions hereof,
the Trust may exercise all powers which are
ordinarily exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law
or Regulations.
(a) The provisions of this Declaration of Trust
are severable, and if the Board of Trustees shall
determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act,
the Code, the DSTA, or with other applicable laws
and regulations, the conflicting provision shall be
deemed not to have constituted a part of this
Declaration of Trust from the time when such
provisions became inconsistent with such laws or
regulations; provided, however, that such
determination shall not affect any of the remaining
provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of
Trust shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such
jurisdiction and shall not in any manner affect
such provision in any other jurisdiction or any
other provision of this Declaration of Trust in
any jurisdiction.
Section 4. Statutory Trust Only. It is the
intention of the Trustees to create hereby a statutory
trust pursuant to the DSTA, and thereby to create
the relationship of trustee and beneficial owners
within the meaning of the DSTA between, respectively,
the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general or
limited partnership, limited liability company,
joint stock association, corporation, bailment,
or any form of legal relationship other than a
statutory trust pursuant to the DSTA. Nothing in
this Declaration of Trust shall be construed to
make the Shareholders, either by themselves or
with the Trustees, partners or members of a
joint stock association.
Section 5. Use of the Names "Franklin,"
"Xxxxxxxxx," "Fiduciary Trust," and/or "Institutional
Fiduciary Trust". The Board of Trustees expressly
agrees and acknowledges that the names "Xxxxxxxx,"
"Xxxxxxxxx," "Fiduciary Trust," and "Institutional
Fiduciary Trust" are the sole property of Franklin
Resources, Inc. ("FRI"). FRI has granted to the
Trust a non- exclusive license to use such names
as part of the name of the Trust now and
in the future. The
Board of Trustees further expressly agrees
and acknowledges that the non-exclusive
license granted herein may be terminated by
FRI if the Trust ceases to use FRI or one of
its Affiliates as Investment Adviser or to use
other Affiliates or successors of FRI for such
purposes. In such event, the non-exclusive license
may be revoked by FRI and the Trust shall cease using
the names "Franklin," "Xxxxxxxxx," "Fiduciary Trust,"
"Institutional Fiduciary Trust" or any name
misleadingly implying a continuing relationship
between the Trust and FRI or any of its Affiliates,
as part of its name unless otherwise consented to by
FRI or any successor to its interests in such names.
The Board of Trustees further understands and agrees
that so long as FRI and/or any future advisory
Affiliate of FRI shall continue to serve as the
Trust's Investment Adviser, other registered open-
or closed-end investment companies ("funds") as may
be sponsored or advised by FRI or its Affiliates
shall have the right permanently to adopt and to use
the names "Franklin", "Xxxxxxxxx," "Fiduciary Trust"
and/or "Institutional Fiduciary Trust" in their names
and in the names of any series or Class of shares
of such funds.
IN WITNESS WHEREOF, the Trustees of Xxxxxxxxx Income
Trust named below do hereby make and enter into
this Declaration of Trust as of the date first
written above.
/s/ Harris J. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
/s/ X. Xxxxxxx Xxxxxx
X. Xxxxxxx Xxxxxx, Trustee /s/ Xxx Xxxxx Xxxxx
Xxx Xxxxx Xxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx., Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, Trustee
/s/ Xxxxxxxxxxx X. Xxxxxxxxxxxxx
Xxxxxxxxxxx X. Xxxxxxxxxxxxx, Trustee
