NAME OF REGISTRANT:
FRANKLIN CUSTODIAN FUNDS
File No. 811-00537
EXHIBIT ITEM: Copies of any
material amendments to the registrant's charter or by-laws
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
FRANKLIN CUSTODIAN FUNDS
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted
October 18, 2006;
current Amended and Restated Agreement and Declaration of Trust
adopted May 18, 2018.)
TABLE OF CONTENTS
Page
Article I NAME;OFFICES;REGISTERED AGENT;DEFINITIONS 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
Article II PURPOSE OF TRUST 4
Article III SHARES 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal Liability 10
Section 5. Power of Board of Trustees to Make Tax Status Election 10
Section 6. Establishment and Designation of Series and Classes 10
Section 7. Indemnification of Shareholders 14
Article IV THE BOARD OF TRUSTEES 14
Section 1. Number, Election, Term, Removal and Resignation 14
Section 2. Trustee Action by Written Consent Without
a Meeting 15
Section 3. Powers;Other Business Interests;Quorum and
Required Vote 16
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 19
Article V SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote 20
Section 3. Shareholder Action by Written Consent Without a Meeting 21
Section 4. Record Dates 21
Section 5. Additional Provisions 22
Article VI NET ASSET VALUE;DISTRIBUTIONS;REDEMPTIONS;TRANSFERS 23
Section 1. Determination of Net Asset Value, Net Income
and Distributions 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
Article VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 27
Section 1. Limitation of Liability 27
Section 2. Indemnification 28
Section 3. Insurance 29
Section 4. Derivative Actions 30
Section 5. Jurisdiction and Waiver of Jury Trial 30
Article VIII CERTAIN TRANSACTIONS 31
Section 1. Dissolution of Trust or Series 31
Section 2. Merger or Consolidation;Conversion;Reorganization 32
Section 3. Master Feeder Structure 34
Section 4. Absence of Appraisal or Dissenters' Rights 34
Article IX AMENDMENTS 34
Section 1. Amendments Generally 34
Article X MISCELLANEOUS 35
Section 1. References;Headings;Counterparts 35
Section 2. Applicable Law 35
Section 3. Provisions in Conflict with Law or Regulations 36
Section 4. Statutory Trust Only 36
Section 5. Use of the Names "Franklin," "Templeton," "Fiduciary Trust,"
and/or "Institutional Fiduciary Trust" 36
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
FRANKLIN CUSTODIAN FUNDS
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of
this 18th day of May, 2018, by the Trustees hereunder.
WITNESSETH:
WHEREAS Franklin Custodian Funds (the "Trust") was formed on
October 18, 2006 under the name "Franklin Custodian Trust"
by its Trustees by the filing of the Certificate of Trust with
the Office of the Secretary of State of the State of Delaware
pursuant to an Agreement and Declaration of Trust dated as of
October 18, 2006 (the "Original Declaration of Trust"), and
the name of the Trust was changed to "Franklin Custodian Funds"
pursuant to the filing of a Certificate of Amendment to
the Certificate of Trust with the Office of the Secretary of
State of the State of Delaware on January 4, 2007;and
WHEREAS this Trust has been formed to carry on the business
of an open-end management investment company as defined in
the 1940 Act;and
WHEREAS this Trust is authorized to divide its Shares into
two or more Classes, to issue its Shares in separate Series,
to divide Shares of any Series into two or more Classes and
to issue Classes of the Trust or the Series, if any, all in
accordance with the provisions hereinafter set forth;and
WHEREAS the Trustees have agreed to manage all property coming
into their hands as trustees of a Delaware statutory trust in
accordance with the provisions of the Delaware Statutory Trust
Act, as amended from time to time, and the provisions hereinafter
set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) all cash, securities and other assets that the Trust
may from time to time acquire in any manner shall be managed
and disposed of upon the following terms and conditions as
hereinafter set forth;and
(ii) this Declaration of Trust and the By-Laws shall be
binding in accordance with their terms on every Trustee, by virtue
of having become a Trustee of the Trust, and on every Shareholder,
by virtue of having become a Shareholder of the Trust, pursuant to
the terms of this Declaration of Trust and the By-Laws.
ARTICLE I
NAME;OFFICES;REGISTERED AGENT;DEFINITIONS
Section 1. Name. This Trust shall be known as
"Franklin Custodian Funds" and the Board of Trustees shall conduct
the business of the Trust under that name, or any other name as it
may from time to time designate. The Trustees may, without
Shareholder approval, change the name of the Trust or any Series
or Class. Any name change of any Series or Class shall become
effective upon approval by the Trustees of such change or any
document (including any registration statement) reflecting such
change, or at such later time as may be approved by the Trustees.
Any name change of the Trust shall become effective upon the
filing of a certificate of amendment under the DSTA reflecting
such change, or at such later time specified in such certificate
of amendment. Any such action shall have the status of an amendment
to this Declaration of Trust. In the event of any name change,
the Trustees shall cause notice to be given to the affected
Shareholders within a reasonable time after the implementation
of such change, which notice will be deemed given if the changed
name is reflected in any registration statement. The Trust shall
constitute a Delaware statutory trust in accordance with the DSTA.
Section 2. Offices of the Trust. The Board may at any time
establish offices of the Trust at any place or places where the
Trust intends to do business.
Section 3. Registered Agent and Registered Office. The name
of the registered agent of the Trust and the address of the
registered office of the Trust are as set forth in the Trust's
Certificate of Trust.
Section 4. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations thereunder, all as adopted or
amended from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person"
as such term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed
from time to time pursuant to Article IV hereof, having the powers
and duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended, restated
or supplemented from time to time in accordance with Article VIII
therein. Such By-Laws may contain any provision not inconsistent
with applicable law or this Declaration of Trust, relating to the
governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust
of the Trust filed with the office of the Secretary of State of
the State of Delaware as required under the DSTA to form the
Trust, as such certificate shall be amended, restated or
supplemented from time to time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust or
of a Series of the Trust established and designated under and in
accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and
the rules and regulations thereunder, all as adopted or amended
from time to time;
(h) "Commission" shall have the meaning given that term in
the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act
(12 Del. C. 3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended,
restated or supplemented from time to time;
(k) "General Liabilities" shall have the meaning given
it in Article III, Section 6(b) of this Declaration of Trust;
(l) "Interested Person" shall have the meaning given that
term in the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person,
as defined below, furnishing services to the Trust pursuant to
any investment advisory or investment management contract described
in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or
any part of any period during (i) which an emergency exists as
a result of which disposal by the Trust of securities or other
assets owned by the Trust is not reasonably practicable;
(ii) which it is not reasonably practicable for the Trust
fairly to determine the net asset value of its assets;or
(iii) such other period as the Commission may by order permit
for the protection of investors;
(o) "Person" shall mean a natural person, partnership,
limited partnership, limited liability company, trust, estate,
association, corporation, organization, custodian, nominee or
any other individual or entity in its own or any representative
capacity, in each case, whether domestic or foreign, and a
statutory trust or a foreign statutory or business trust;
(p) "Principal Underwriter" shall have the meaning given
that term in the 1940 Act;
(q) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of
Article III hereof;
(r) "Shares" shall mean the transferable shares of beneficial
interest into which the beneficial interest in the Trust shall be
divided from time to time, and shall include fractional and whole
Shares;
(s) "Shareholder" shall mean a record owner of Shares pursuant
to the By-Laws;
(t) "Trust" shall mean Franklin Custodian Funds, the Delaware
statutory trust formed under the Original Declaration of Trust,
as amended, and by filing of the Certificate of Trust with the
office of the Secretary of State of the State of Delaware, and
governed by this Declaration of Trust;
(u) "Trust Property" shall mean any and all property, real
or personal, tangible or intangible, which is owned or held by
or for the account of the Trust, or one or more of any Series
thereof, including, without limitation, the rights referenced
in Article X, Section 5 hereof;and
(v) "Trustee" or "Trustees" shall mean each Person who signs
this Declaration of Trust as a trustee and all other Persons
who may, from time to time, be duly elected or appointed, qualified
and serving on the Board of Trustees in accordance with the
provisions hereof and the By-Laws, so long as such signatory
or other Person continues in office in accordance with the terms
hereof and the By-Laws. Reference herein to a Trustee or the
Trustees shall refer to such Person or Persons in such Person's
or Persons' capacity as a trustee or trustees hereunder and under
the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a registered management investment company registered
under the 1940 Act, directly, or if one or more Series is established
hereunder, through one or more Series, investing primarily in
securities, and to exercise all of the powers, rights and privileges
granted to, or conferred upon, a statutory trust formed under the
DSTA, including, without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in connection
therewith, to make any changes in the investment of the assets of
the Trust, to hold part or all of its funds in cash, to hold cash
uninvested, to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, mortgage,
transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or
property of every nature and kind, including, without limitation,
all types of bonds, debentures, stocks, shares, units of beneficial
interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, money market
instruments, certificates of deposit or indebtedness, bills, notes,
mortgages, commercial paper, repurchase or reverse repurchase
agreements, bankers' acceptances, finance paper, and any options,
certificates, receipts, warrants, futures contracts or other
instruments representing rights to receive, purchase or subscribe
for the same, or evidencing or representing any other rights or
interests therein or in any property or assets, and other securities
of any kind, as the foregoing are issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and
the District of Columbia and any political subdivision, agency,
or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or
any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory,
or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts
for any such securities;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use and
enjoyment of any of such securities and other instruments or
property of every kind and description, including, but without
limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise
or enjoy any rights, title, interest, powers or privileges under
or with reference to any of such securities and other instruments
or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise
any of said rights, powers, and privileges in respect of any of
said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of
any of such securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in
any property rights relating to any or all of the assets of
the Trust or any Series, subject to any requirements of
the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property;and to
execute and deliver proxies or powers of attorney to such Person
or Persons as the Trustees shall deem proper, granting to such
Person or Persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities and/or
other property;
(f) To hold any security or property in a form not indicating
that it is trust property, whether in bearer, unregistered or
other negotiable form, or in its own name or in the name of
a custodian or subcustodian or a nominee or nominees or otherwise
or to authorize the custodian or a subcustodian or a nominee or
nominees to deposit the same in a securities depository,
subject in each case to proper safeguards according to the
usual practice of investment companies or any rules or
regulations applicable thereto;
(g) To consent to, or participate in, any plan for
the reorganization, consolidation or merger of any corporation
or issuer of any security which is held in the Trust;to consent
to any contract, lease, mortgage, purchase or sale of property
by such corporation or issuer;and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through
a committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate to
them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion
of the expenses and compensation of such committee, depositary
or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including but
not limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person;to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Board of Trustees may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust
or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Advisers,
Principal Underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature
arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer,
employee, agent, Investment Adviser, Principal Underwriter, or
independent contractor, to the fullest extent permitted by this
Declaration of Trust, the By-Laws and by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of
the Trustees, officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy, property
of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop, improve,
manage, subdivide, and generally to deal and trade in real property,
improved and unimproved, and wheresoever situated;and to build,
erect, construct, alter and maintain buildings, structures, and
other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of
the Trust, and to mortgage or pledge the whole or any part of
the property and franchises of the Trust, real, personal, and
mixed, tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in stocks, Shares, bonds, debentures and other
securities, instruments or other property of the Trust, from
time to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust,
determine;and to re-acquire and redeem, from time to time,
its Shares or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon,
or adjust, by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any debts,
claims or expenses incurred in connection therewith, including
those of litigation, and such power shall include without
limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good
faith business judgment, to dismiss any action, suit, proceeding,
dispute, claim, or demand, derivative or otherwise, brought by
any Person, including a Shareholder in the Shareholder's own name
or the name of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any other states,
territories, districts and United States dependencies and in foreign
countries, all of the foregoing powers, rights and privileges, and
the enumeration of the foregoing powers shall not be deemed to
exclude any powers, rights or privileges so granted or conferred;
and
(u) In general, to carry on any other business in connection
with or incidental to its trust purposes, to do everything necessary,
suitable or proper for the accomplishment of such purposes or for
the attainment of any object or the furtherance of any power
hereinbefore set forth, either alone or in association with others,
and to do every other act or thing incidental or appurtenant to,
or growing out of, or connected with, its business or purposes,
objects or powers.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or one or more
of its Series. Neither the Trust nor the Board of Trustees shall be
required to obtain any court order to deal with any assets of the
Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that
the foregoing enumeration of specific purposes, objects and
powers shall not be held to limit or restrict in any manner
the powers of the Trust, and that they are in furtherance of,
and in addition to, and not in limitation of, the general powers
conferred upon the Trust by the DSTA and the other laws of
the State of Delaware or otherwise;nor shall the enumeration
of one thing be deemed to exclude another, although it be of
like nature, not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided
into Shares, each Share without a par value. The number of Shares
in the Trust authorized hereunder, and of each Series and Class
as may be established from time to time, is unlimited. The Board
of Trustees may authorize the division of Shares into separate Classes
of Shares and into separate and distinct Series of Shares and
the division of any Series into separate Classes of Shares in
accordance with the 1940 Act. The different Series and Classes
shall be established and designated pursuant to Article III,
Section 6 hereof. If no separate Series or Classes of Series
shall be established, the Shares shall have the rights, powers
and duties provided for herein and in Article III, Section 6
hereof to the extent relevant and not otherwise provided for
herein, and all references to Series and Classes shall be
construed (as the context may require) to refer to the Trust.
The fact that the Trust shall have one or more established
and designated Classes of the Trust, shall not limit the authority
of the Board of Trustees to establish and designate additional
Classes of the Trust. The fact that one or more Classes of
the Trust shall have initially been established and designated
without any specific establishment or designation of a Series
(i.e., that all Shares of the Trust are initially Shares of
one or more Classes) shall not limit the authority of the Board
of Trustees to later establish and designate a Series and establish
and designate the Class or Classes of the Trust as Class or Classes,
respectively, of such Series.
The fact that a Series shall have initially been established
and designated without any specific establishment or designation of
Classes (i.e., that all Shares of such Series are initially of a
single Class) shall not limit the authority of the Board of Trustees
to establish and designate separate Classes of said Series.
The fact that a Series shall have more than one established and
designated Class, shall not limit the authority of the Board of
Trustees to establish and designate additional Classes of said
Series.
(b) The Board of Trustees shall have the power to issue authorized,
but unissued Shares of the Trust, or any Series and Class thereof,
from time to time for such consideration paid wholly or partly in
cash, securities or other property, as may be determined from time
to time by the Board of Trustees, subject to any requirements or
limitations of the 1940 Act. The Board of Trustees, on behalf of
the Trust, may acquire and hold as treasury shares, reissue for
such consideration and on such terms as it may determine, or
cancel, at its discretion from time to time, any Shares reacquired
by the Trust. The Board of Trustees may classify, reclassify or
convert any unissued Shares or any Shares of the Trust or any Series
or Class thereof, that were previously issued and are reacquired,
into one or more Series or Classes that may be established and
designated from time to time and, in connection therewith, cause
some or all of the Shareholders of the Trust, such Series or Class
to become Shareholders of such other Series or Class.
Notwithstanding the foregoing, the Trust and any Series thereof
may acquire, hold, sell and otherwise deal in, for purposes of
investment or otherwise, the Shares of any other Series of the
Trust or Shares of the Trust, and such Shares shall not be
deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III,
each Share shall entitle the holder to voting rights as provided
in Article V hereof. Shareholders shall have no preemptive or
other right to subscribe for new or additional authorized, but
unissued Shares or other securities issued by the Trust or any
Series thereof. The Board of Trustees may from time to time
divide or combine the Shares of the Trust or any particular
Series thereof into a greater or lesser number of Shares of
the Trust or that Series, respectively. Such division or
combination shall not materially change the proportionate
beneficial interests of the holders of Shares of the Trust
or that Series, as the case may be, in the Trust Property
at the time of such division or combination that is held with
respect to the Trust or that Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an economic
or other interest, may acquire, own, hold and dispose of Shares
in the Trust or any Series and Class thereof, whether such Shares
are authorized but unissued, or already outstanding, to the same
extent as if such Person were not a Trustee, officer or other
agent of the Trust;and the Trust or any Series may issue and
sell and may purchase such Shares from any such Person or any
such organization, subject to the limitations, restrictions
or other provisions applicable to the sale or purchase of
such Shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust kept by the Trust
or by a transfer or similar agent for the Trust, which books
shall be maintained separately for the Shares of the Trust and
each Series and each Class thereof that has been established
and designated. No certificates certifying the ownership of
Shares shall be issued except as the Board of Trustees may
otherwise determine from time to time. The Board of Trustees
may make such rules not inconsistent with the provisions of
the 1940 Act as it considers appropriate for the issuance of
Share certificates, the transfer of Shares of the Trust and
each Series and Class thereof, if any, and similar matters.
The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive
as to who are the Shareholders of the Trust and each Series and
Class thereof and as to the number of Shares of the Trust and each
Series and Class thereof held from time to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable
law, the Trust may sell its authorized but unissued Shares to
such Persons, at such times, on such terms, and for such consideration
as the Board of Trustees may from time to time authorize. Each sale
shall be credited to the individual purchaser's account in the
form of full or fractional Shares of the Trust or such Series
thereof (and Class thereof, if any), as the purchaser may select,
at the net asset value per Share, subject to Section 22 of
the 1940 Act, and the rules and regulations adopted thereunder;
provided, however, that the Board of Trustees may, in its
sole discretion, permit the Principal Underwriter to impose
a sales charge upon any such sale. Every Shareholder by
virtue of having become a Shareholder shall be bound by the
terms of this Declaration of Trust. Ownership of Shares shall
not make any Shareholder a third-party beneficiary of any contract
entered into by the Trust or any Series.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to
Shareholders only the rights provided in this Declaration of Trust,
the By-Laws, and under applicable law. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole
or any part of the Trust Property or right to call for a partition
or division of the same or for an accounting, nor shall
the ownership of Shares constitute the Shareholders as partners.
Subject to Article VIII, Section 1 hereof, the death, incapacity,
dissolution, termination, or bankruptcy of a Shareholder during
the existence of the Trust and any Series thereof shall not operate
to dissolve the Trust or any such Series, nor entitle the
representative of any deceased, incapacitated, dissolved,
terminated or bankrupt Shareholder to an accounting or to
take any action in court or elsewhere against the Trust,
the Trustees or any such Series, but entitles such representative
only to the rights of said deceased, incapacitated, dissolved,
terminated or bankrupt Shareholder under this Declaration of Trust.
Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust, shall have any power to bind personally
any Shareholder, nor, except as specifically provided herein,
to call upon any Shareholder for the payment of any sum of
money other than such as the Shareholder may at any time personally
agree to pay. Each Share, when issued on the terms determined by
the Board of Trustees, shall be fully paid and nonassessable.
As provided in the DSTA, Shareholders shall be entitled to the same
limitation of personal liability as that extended to stockholders
of a private corporation organized for profit under the General
Corporation Law of the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status Election.
The Board of Trustees shall have the power, in its discretion,
to make such elections as to the tax status of the Trust and
any Series as may be permitted or required under the Code,
without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes.
The establishment and designation of any Series or Class shall
be effective, without the requirement of Shareholder approval,
upon the adoption of a resolution by not less than a majority
of the then Board of Trustees, which resolution shall set forth
such establishment and designation whether directly in such
resolutions or by reference to, or approval of, another document
that sets forth the designation or otherwise identifies
such Series or Class, including any registration statement
of the Trust and any amendment of this Declaration of Trust,
and may provide, to the extent permitted by the DSTA,
for rights, powers and duties of such Series or Class
(including variations in the relative rights and preferences
as between the different Series and Classes) otherwise than
as provided herein. Any action that may be taken by the Board
of Trustees with respect to any Series or Class, including any
addition, modification, division, combination, classification,
reclassification, change of name or termination, may be made
in the same manner as the establishment of such Series or Class.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall be
maintained for each Series, and the assets and liabilities belonging
to any such Series shall be held and accounted for separately from
the assets and liabilities of the Trust or any other Series.
Each Class of the Trust shall be separate and distinct from
any other Class of the Trust. Each Class of a Series shall be
separate and distinct from any other Class of the Series.
As appropriate, in a manner determined by the Board of Trustees,
the liabilities belonging to any such Class shall be held and
accounted for separately from the liabilities of the Trust,
the Series or any other Class and separate and distinct records
on the books of the Trust for the Class shall be maintained for
this purpose. Subject to Article II hereof, each such Series
shall operate as a separate and distinct investment medium, with
separately defined investment objectives and policies.
Shares of each Series (and Class where applicable) established
and designated pursuant to this Section 6, unless otherwise
provided to the extent permitted by the DSTA, in the resolution
establishing and designating such Series or Class, shall have
the following rights, powers and duties:
(a) Assets Held with Respect to a Particular Series.
All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all
assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof from whatever
source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds
or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the
rights of creditors with respect to that Series, and shall be
so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the
same may be, are herein referred to as "assets held with respect
to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect
to any particular Series (collectively "General Assets"),
the Board of Trustees, or an appropriate officer as determined
by the Board of Trustees, shall allocate such General Assets to,
between or among any one or more of the Series in such manner
and on such basis as the Board of Trustees, in its sole discretion,
deems fair and equitable, and any General Asset so allocated
to a particular Series shall be held with respect to that Series.
Each such allocation by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or
Class. The assets of the Trust held with respect to a particular
Series shall be charged with the liabilities, debts, obligations,
costs, charges, reserves and expenses of the Trust incurred,
contracted for or otherwise existing with respect to such Series.
Such liabilities, debts, obligations, costs, charges, reserves
and expenses incurred, contracted for or otherwise existing with
respect to a particular Series are herein referred to as
"liabilities held with respect to" that Series. Any liabilities,
debts, obligations, costs, charges, reserves and expenses
of the Trust which are not readily identifiable as being
liabilities held with respect to any particular Series
(collectively "General Liabilities") shall be allocated by
the Board of Trustees, or an appropriate officer as determined
by the Board of Trustees, to and among any one or more of the
Series in such manner and on such basis as the Board of Trustees
in its sole discretion deems fair and equitable. Each allocation
of liabilities, debts, obligations, costs, charges, reserves and
expenses by or under the direction of the Board of Trustees shall
be conclusive and binding upon the Shareholders of all Series for
all purposes. All Persons who have extended credit that has been
allocated to a particular Series, or who have a claim or contract
that has been allocated to any particular Series, shall look
exclusively to the assets of that particular Series for payment
of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and
contract provider shall be deemed nevertheless to have impliedly
agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion
to allocate General Liabilities as provided herein, the debts,
liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to a particular Series,
whether such Series is now authorized and existing pursuant
to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be
enforceable against the assets held with respect to that
Series only, and not against the assets of any other Series
or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series
thereof shall be enforceable against the assets held with respect
to such Series. Notice of this limitation on liabilities between
and among Series shall be set forth in the Certificate of Trust
pursuant to the DSTA, and upon the giving of such notice in the
Certificate of Trust, the statutory provisions of Section 3804
of the DSTA relating to limitations on liabilities between and
among Series (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) shall
become applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and
expenses related to the distribution of, and other identified
expenses that should or may properly be allocated to, the Shares
of a particular Class may be charged to and borne solely by such
Class. The bearing of expenses solely by a particular Class of
Shares may be appropriately reflected (in a manner determined by
the Board of Trustees) and may affect the net asset value
attributable to, and the dividend, redemption and liquidation
rights of, such Class. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or under
the direction of the Board of Trustees shall be conclusive and
binding upon the Shareholders of all Classes for all purposes.
All Persons who have extended credit that has been allocated
to a particular Class, or who have a claim or contract that
has been allocated to any particular Class, shall look, and
may be required by contract to look, exclusively to that
particular Class for payment of such credit, claim, or
contract.
(c) Dividends, Distributions and Redemptions.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI hereof, no dividend or
distribution including, without limitation, any distribution
paid upon dissolution of the Trust or of any Series with respect
to, nor any redemption of, the Shares of any Series or Class of
such Series shall be effected by the Trust other than from the
assets held with respect to such Series, nor, except as specifically
provided in Section 7 of this Article III, shall any Shareholder
of any particular Series otherwise have any right or claim against
the assets held with respect to any other Series or the Trust
generally except, in the case of a right or claim against the
assets held with respect to any other Series, to the extent
that such Shareholder has such a right or claim hereunder as
a Shareholder of such other Series. The Board of Trustees
shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated
as income and which items as capital;and each such determination
and allocation shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote in the aggregate without differentiation between the
Shares of the separate Series, if any, or separate Classes, if
any;provided that (i) with respect to any matter that affects
only the interests of some but not all Series, then only the
Shares of such affected Series, voting separately, shall be
entitled to vote on the matter, (ii) with respect to any matter
that affects only the interests of some but not all Classes,
then only the Shares of such affected Classes, voting separately,
shall be entitled to vote on the matter;and (iii) notwithstanding
the foregoing, with respect to any matter as to which the 1940 Act
or other applicable law or regulation requires voting, by Series
or by Class, then the Shares of the Trust shall vote as prescribed
in such law or regulation.
(e) Equality. Each Share of any particular Series shall be
equal to each other Share of such Series (subject to the rights
and preferences with respect to separate Classes of such Series).
(f) Fractions. A fractional Share of the Trust or a Series
shall carry proportionately all the rights and obligations of
a whole Share of the Trust or such Series, including rights with
respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series
shall have the right to exchange said Shares for Shares of one
or more other Series in accordance with such requirements and
procedures as may be established by the Board of Trustees, and
in accordance with the 1940 Act.
(h) Combination of Series or Classes.
The Board of Trustees shall have the authority, without
the approval, vote or consent of the Shareholders of any Series,
unless otherwise required by applicable law, to combine the assets
and liabilities held with respect to any two or more Series into
assets and liabilities held with respect to a single Series;
provided that upon completion of such combination of Series,
the interest of each Shareholder, in the combined assets and
liabilities held with respect to the combined Series shall equal
the interest of each such Shareholder in the aggregate of the
assets and liabilities held with respect to the Series that were
combined.
The Board of Trustees shall have the authority, without
the approval, vote or consent of the Shareholders of any Series
or Class, unless otherwise required by applicable law, to combine
, merge or otherwise consolidate the Shares of two or more Classes
of Shares of a Series with and/or into a single Class of Shares
of such Series, with such designation, preference, conversion or
other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption
and other characteristics as the Trustees may determine;provided,
however, that the Trustees shall provide written notice to the
affected Shareholders of any such transaction.
The transactions in (i) and (ii) above may be effected
through share-for-share exchanges, transfers or sales of assets,
Shareholder in-kind redemptions and purchases, exchange offers,
or any other method approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall be
dissolved and terminated upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall wind
up the affairs of such Series in accordance with Article VIII,
Section 1 hereof. The Board of Trustees shall terminate any
particular Class: (i) upon approval by a majority of votes cast
at a meeting of the Shareholders of such Class, provided a quorum
of Shareholders of such Class are present, or by action of the
Shareholders of such Class by written consent without a meeting
pursuant to Article V, Section 3;or (ii) at the discretion of
the Board of Trustees either (A) at any time there are no Shares
outstanding of such Class, or (B) upon prior written notice to the
Shareholders of such Class;provided, however, that upon the
termination of any particular Series, every Class of such Series
shall thereby be terminated.
Section 7. Indemnification of Shareholders. No Shareholder
as such shall be subject to any personal liability whatsoever
to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. If any Shareholder or former
Shareholder shall be exposed to liability, charged with liability,
or held personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating exclusively to his
or her being or having been a Shareholder of the Trust or a
Shareholder of a particular Series thereof, and not because of
such Shareholder's actions or omissions, such Shareholder or former
Shareholder (or, in the case of a natural person, his or her heirs,
executors, administrators, or other legal representatives or,
in the case of a corporation or other entity, its corporate or
other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust or out of
the assets of such Series thereof, as the case may be, against
all loss and expense, including without limitation, attorneys'
fees, arising from such claim or demand;provided, however,
such indemnity shall not cover (i) any taxes due or paid by
reason of such Shareholder's ownership of any Shares and (ii)
expenses charged to a Shareholder pursuant to Article IV,
Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written
above, who shall hold office in accordance with paragraph (c) of
this Section 1 and as otherwise provided herein. In accordance
with Section 3801 of the DSTA, each Trustee shall become a
Trustee and be bound by this Declaration of Trust and the
By-Laws when such Person signs this Declaration of Trust as a
trustee and/or is duly elected or appointed, qualified and
serving on the Board of Trustees in accordance with the provision
s hereof and the By-Laws, so long as such signatory or other Person
continues in office in accordance with the terms hereof.
(b) The number of Trustees constituting the entire Board of
Trustees may be fixed from time to time by the vote of a majority
of the then Board of Trustees;provided, however, that the number
of Trustees shall in no event be less than one (1) nor more than
fifteen (15). The number of Trustees shall not be reduced so as
to shorten the term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of the
Trust or until such Trustee's earlier death, resignation, removal,
retirement or inability otherwise to serve, or, if sooner than
any of such events, until the next meeting of Shareholders called
for the purpose of electing Trustees or consent of Shareholders in
lieu thereof for the election of Trustees, and until the election
and qualification of his or her successor. Shareholders shall
not be entitled to elect Trustees except as required by the 1940 Act.
To the extent required by the 1940 Act, the Shareholders shall
elect the Trustees on such dates as the Trustees may fix from
time to time. The Shareholders may elect Trustees at any meeting
of Shareholders called for that purpose pursuant to the By-Laws.
In the event that after the proxy material approved by the
Trustees has been printed for a meeting of Shareholders at which
Trustees are to be elected any one or more nominees approved by
the Trustees named in such proxy material dies or become
incapacitated or is otherwise unable or unwilling to serve,
the authorized number of Trustees shall be automatically reduced
by the number of such nominees, unless the Board of Trustees prior
to the meeting shall otherwise determine. A meeting of
Shareholders for the purpose of electing or removing one or
more Trustees shall be called as provided in the By-Laws.
(d) Any Trustee may be removed, with or without cause,
by the Board of Trustees, by action of a majority of the Trustees
then in office, or by vote of the Shareholders at any meeting
called for that purpose.
(e) Any Trustee may resign at any time by giving written notice
to the secretary of the Trust or to a meeting of the Board of
Trustees. Such resignation shall be effective upon receipt, unless
specified to be effective at some later time.
(f) The declination to serve, death, resignation, retirement,
removal, incapacity, or inability of the Trustees, or any one of
them, shall not operate to dissolve or terminate the Trust or to
revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Section 2. Trustee Action by Written Consent Without a Meeting.
To the extent not inconsistent with the provisions of the 1940 Act,
any action that may be taken at any meeting of the Board of Trustees
or any committee thereof may be taken without a meeting and without
prior written notice if a consent or consents in writing setting
forth the action so taken is signed by the Trustees having not less
than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all Trustees
on the Board of Trustees or any committee thereof, as the case
may be, were present and voted. Written consents of the Trustees
may be executed in one or more counterparts. A consent transmitted
by electronic transmission (as defined in Section 3806 of the DSTA)
by a Trustee shall be deemed to be written and signed for purposes
of this Section. All such consents shall be filed with the secretary
of the Trust and shall be maintained in the Trust's records.
Section 3. Powers;Other Business Interests;Quorum and Required
Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust (including every Series thereof) shall be
managed by or under the direction of the Board of Trustees, and such
Board of Trustees shall have all powers necessary or convenient to
carry out that responsibility. The Board of Trustees shall have full
power and authority to do any and all acts and to make and execute
any and all contracts and instruments that it may consider necessary or
appropriate in connection with the operation and administration of
the Trust (including every Series thereof). The Board of Trustees
shall not be bound or limited by present or future laws or customs
with regard to investments by trustees or fiduciaries, but, subject
to the other provisions of this Declaration of Trust and the
By-Laws, shall have full authority and absolute power and
control over the assets and the business of the Trust
(including every Series thereof) to the same extent as
if the Board of Trustees was the sole owner of such assets
and business in its own right, including such authority,
power and control to do all acts and things as it, in its
sole discretion, shall deem proper to accomplish the purposes
of this Trust. Without limiting the foregoing, the Board of
Trustees may, subject to the requisite vote for such actions as
set forth in this Declaration of Trust and the By-Laws:
(1) adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust;(2) amend, restate and repeal
such By-Laws, subject to and in accordance with the provisions
of such By-Laws;(3) fill vacancies on the Board of Trustees
in accordance with this Declaration of Trust and the By-Laws;
(4) elect and remove such officers and appoint and terminate
such agents as it considers appropriate, in accordance with
this Declaration of Trust and the By-Laws;(5) establish and
terminate one or more committees of the Board of Trustees
pursuant to the By-Laws;(6) place Trust Property in custody
as required by the 1940 Act, employ one or more custodians
of the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property
with a custodian or a custodial system meeting the requirements
of the 1940 Act;(7) retain a transfer agent, dividend disbursing
agent, a shareholder servicing agent or administrative services
agent, or any number thereof or any other service provider as
deemed appropriate;(8) provide for the issuance and distribution
of Shares in the Trust or other securities or financial instruments
directly or through one or more Principal Underwriters or otherwise
;(9) retain one or more Investment Adviser(s);(10) re-acquire and
redeem Shares on behalf of the Trust and transfer Shares pursuant
to applicable law;(11) set record dates for the determination of
Shareholders with respect to various matters, in the manner provided
in Article V, Section 4 of this Declaration of Trust;(12) declare
and pay dividends and distributions to Shareholders from the Trust
Property, in accordance with this Declaration of Trust and the
By-Laws;(13) establish, designate and redesignate from time to
time, in accordance with the provisions of Article III, Section 6
hereof, any Series or Class of the Trust or of a Series;(14)
hire personnel as staff for the Board of Trustees or, for those
Trustees who are not Interested Persons of the Trust, the
Investment Adviser, or the Principal Underwriter, set the
compensation to be paid by the Trust to such personnel,
exercise exclusive supervision of such personnel, and remove
one or more of such personnel, at the discretion of the
Board of Trustees;(15) retain special counsel, other experts
and/or consultants for the Board of Trustees, for those Trustees
who are not Interested Persons of the Trust, the Investment Adviser,
or the Principal Underwriter, and/or for one or more of the committees
of the Board of Trustees, set the compensation to be paid by
the Trust to such special counsel, other experts and/or
consultants, and remove one or more of such special counsel,
other experts and/or consultants, at the discretion of the
Board of Trustees;(16) engage in and prosecute, defend,
compromise, abandon, or adjust, by arbitration, or otherwise,
any actions, suits, proceedings, disputes, claims, and demands
relating to the Trust, and out of the assets of the Trust to
pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and s
uch power shall include, without limitation, the power of
the Trustees, or any appropriate committee thereof, in the
exercise of their or its good faith business judgment, to
dismiss any action, suit, proceeding, dispute, claim or
demand, derivative or otherwise, brought by any person,
including a shareholder in its own name or in the name of the
Trust, whether or not the Trust or any of the Trustees may be
named individually therein or the subject matter arises by
reason of business for or on behalf of the Trust;and (17) in
general delegate such authority as it considers desirable to
any Trustee or officer of the Trust, to any committee of the
Trust, to any agent or employee of the Trust or to any custodian,
transfer, dividend disbursing, shareholder servicing agent,
Principal Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section
3(a) are without prejudice to any other powers of the Board of
Trustees set forth in this Declaration of Trust and the By-Laws.
Any determination as to what is in the best interests of the
Trust or any Series or Class thereof and its Shareholders made
by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Board
of Trustees.
The Trustees shall be subject to the same fiduciary duties to
which the directors of a Delaware corporation would be subject
if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were
directors of such Delaware corporation, and such modified duties
shall replace any fiduciary duties to which the Trustees would
otherwise be subject. Without limiting the generality of the
foregoing, all actions and omissions of the Trustees shall be
evaluated under the doctrine commonly referred to as the "business
judgment rule," as defined and developed under Delaware law, to
the same extent that the same actions or omissions of directors
of a Delaware corporation in a substantially similar circumstance
would be evaluated under such doctrine. Notwithstanding the
foregoing, the provisions of this Declaration of Trust and the
By-Laws, to the extent that they restrict or eliminate the duties
(including fiduciary duties) and liabilities relating thereto of
a Trustee otherwise applicable under the foregoing standard or
otherwise existing at law or in equity, are agreed by each
Shareholder and the Trust to replace such other duties and
liabilities of such Trustee.
(b) Other Business Interests. The Trustees shall devote
to the affairs of the Trust (including every Series thereof)
such time as may be necessary for the proper performance of
their duties hereunder, but neither the Trustees nor the officers,
directors, shareholders, partners or employees of the Trustees,
if any, shall be expected to devote their full time to
the performance of such duties. The Trustees, or any Affiliate,
shareholder, officer, director, partner or employee thereof, or
any Person owning a legal or beneficial interest therein, may engage
in, or possess an interest in, any business or venture other than
the Trust or any Series thereof, of any nature and description,
independently or with or for the account of others. None of the
Trust, any Series thereof or any Shareholder shall have the right
to participate or share in such other business or venture or any
profit or compensation derived therefrom.
(c) Quorum and Required Vote. At all meetings of the Board
of Trustees, a majority of the Board of Trustees then in office
shall be present in person in order to constitute a quorum for
the transaction of business. A meeting at which a quorum is
initially present may continue to transact business notwithstanding
the departure of Trustees from the meeting, if any action taken
is approved by at least a majority of the required quorum for that
meeting. Subject to Article III, Sections 1 and 6 of the By-Laws
and except as otherwise provided herein or required by applicable
law, the vote of not less than a majority of the Trustees present
at a meeting at which a quorum is present shall be the act of the
Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to
the provisions of Article III, Section 6 hereof, the Trustees
or an authorized officer of the Trust shall pay or cause to be
paid out of the principal or income of the Trust or any particular
Series or Class thereof, or partly out of the principal and partly
out of the income of the Trust or any particular Series or Class
thereof, and charge or allocate the same to, between or among such
one or more of the Series or Classes that may be established or
designated pursuant to Article III, Section 6 hereof, as the Trustees
or such officer deems fair, all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection with the
maintenance or operation of the Trust or a particular Series
or Class thereof, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and
such expenses, fees, charges, taxes and liabilities associated
with the services of the Trust's officers, employees,
Investment Adviser(s), Principal Underwriter, auditors, counsel,
custodian, sub-custodian, transfer agent, dividend disbursing
agent, shareholder servicing agent, and such other agents or
independent contractors and such other expenses, fees, charges,
taxes and liabilities as the Board of Trustees may deem necessary
or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board
of Trustees shall have the power, as frequently as it may determine,
to cause any Shareholder to pay directly, in advance or arrears,
an amount fixed from time to time by the Board of Trustees or
an officer of the Trust for charges of the Trust's custodian
or transfer, dividend disbursing, shareholder servicing or similar
agent-which are not customarily charged generally to the Trust,
a Series or a Class, where such services are provided to such
Shareholder individually, rather than to all Shareholders
collectively, by setting off such amount due from such Shareholder
from the amount of (i) declared but unpaid dividends or
distributions owed such Shareholder, or (ii) proceeds from
the redemption by the Trust of Shares from such Shareholder
pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to
all of the Trust Property shall at all times be vested in the
Trust, except that the Board of Trustees shall have the power
to cause legal title to any Trust Property to be held by or in
the name of any Person as nominee, on such terms as the Board
of Trustees may determine, in accordance with applicable law.
No creditor of any Trustee shall have any right to obtain
possession, or otherwise exercise legal or equitable remedies
with respect to, any Trust Property with respect to any claim
against, or obligation of, such Trustee in its individual
capacity and not related to the Trust or any Series or Class
of the Trust. No Shareholder shall be deemed to have a severable
ownership in any individual asset of the Trust, or belonging to
any Series, or allocable to any Class thereof, or any right of
partition or possession thereof, but each Shareholder shall have,
except as otherwise provided for herein, a proportionate undivided
beneficial interest in the Trust or in assets belonging to the
Series (or allocable to the Class) in which the Shareholder holds
Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Declaration of Trust or
the DSTA.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and
the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive investment
advisory or investment management services for the Trust or for
any Series thereof with any corporation, trust, association or
other organization, including any Affiliate;and any such
contract may contain such other terms as the Board of Trustees
may determine, including without limitation, delegation of
authority to the Investment Adviser to determine from time
to time without prior consultation with the Board of Trustees
what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested
in, sold, exchanged, transferred, mortgaged, pledged, assigned,
negotiated, or otherwise dealt with or disposed of, and what
portion, if any, of the Trust Property shall be held uninvested
and to make changes in the Trust's or a particular Series'
investments, or to engage in such other activities, including
administrative services, as may specifically be delegated to
such party.
(b) The Board of Trustees may also, at any time and from
time to time, contract with any Person, including any Affiliate,
appointing it or them as the exclusive or nonexclusive placement
agent, distributor or Principal Underwriter for the Shares of
the Trust or one or more of the Series or Classes thereof, or
for other securities or financial instruments to be issued by
the Trust, or appointing it or them to act as the administrator,
fund accountant or accounting agent, custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing agent for
the Trust or one or more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time
and from time to time, to contract with any Persons, including
any Affiliates, to provide such other services to the Trust or
one or more of its Series, as the Board of Trustees determines
to be in the best interests of the Trust, such Series and its
Shareholders.
(d) None of the following facts or circumstances shall affect
the validity of any of the contracts provided for in this Article IV,
Section 7, or disqualify any Shareholder, Trustee, employee or
officer of the Trust from voting upon or executing the same, or
create any liability or accountability to the Trust, any Series
thereof or the Shareholders, provided that the establishment of
and performance of each such contract is permissible under
the 1940 Act, and provided further that such Person is authorized
to vote upon such contract under the 1940 Act:
the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or
for any Person, or for any parent or Affiliate of any Person,
with which any type of service contract provided for in this
Article IV, Section 7 may have been or may hereafter be made,
or that any such Person, or any parent or Affiliate thereof,
is a Shareholder or has an interest in the Trust, or
the fact that any Person with which any type of service
contract provided for in this Article IV, Section 7 may have
been or may hereafter be made also has such a service contract
with one or more other Persons, or has other
business or interests.
(e) Every contract referred to in this Section 7 is
required to comply with this Declaration of Trust, the
By-Laws, the 1940 Act, other applicable law and any
stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions
of Article III, Section 6 hereof, the Shareholders shall
have the power to vote only (i) on such matters required by
this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust
filed with the Commission, the registration of which is
effective;and (ii) on such other matters as the Board
of Trustees may consider necessary or desirable. Subject
to Article III hereof, the Shareholder of record (as of
the record date established pursuant to Section 4 of
this Article V) of each Share shall be entitled to one
vote for each full Share, and a fractional vote for each
fractional Share. Shareholders shall not be entitled to
cumulative voting in the election of Trustees or on any
other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are
present in person or represented by proxy, shall constitute
a quorum at the Shareholders' meeting, except when a larger
quorum is required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities exchange
on which Shares are listed for trading, in which case such quorum
shall comply with such requirements. When a separate vote by
one or more Series or Classes is required, forty percent (40%)
of the outstanding Shares of each such Series or Class entitled
to vote at a Shareholders' meeting of such Series or Class,
which are present in person or represented by proxy, shall constitute
a quorum at the Shareholders' meeting of such Series or Class,
except when a larger quorum is required by this Declaration of
Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares of such Series or Class are
listed for trading, in which case such quorum shall comply with
such requirements.
(b) Subject to the provisions of Article III, Section 6(d),
when a quorum is present at any meeting, a majority of the votes
cast shall decide any questions and a plurality shall elect a
Trustee, except when a larger vote is required by any provision
of this Declaration of Trust or the By-Laws or by applicable law.
Pursuant to Article III, Section 6(d) hereof, where a separate
vote by Series and, if applicable, by Class is required, the
preceding sentence shall apply to such separate votes by Series
and Classes.
(c) Abstentions and broker non-votes will be treated as votes
present at a Shareholders' meeting;abstentions and broker
non-votes will not be treated as votes cast at such meeting.
Abstentions and broker non-votes, therefore (i) will be included
for purposes of determining whether a quorum is present;and
(ii) will have no effect on proposals that require a plurality
for approval, or on proposals requiring an affirmative vote
of a majority of votes cast for approval.
Section 3. Shareholder Action by Written Consent Without
a Meeting. Any action which may be taken at any meeting of
Shareholders may be taken without a meeting if a consent or
consents in writing setting forth the action so taken is or
are signed by the holders of a majority of the Shares entitled
to vote on such action (or such different proportion thereof
as shall be required by law, the Declaration of Trust or the
By-Laws for approval of such action) and is or are received
by the secretary of the Trust either: (i) by the date set by
resolution of the Board of Trustees for the shareholder vote
on such action;or (ii) if no date is set by resolution of
the Board, within 30 days after the record date for such
action as determined by reference to Article V, Section 4(b)
hereof. The written consent for any such action may be
executed in one or more counterparts, each of which shall be
deemed an original, and all of which when taken together shall
constitute one and the same instrument. A consent transmitted
by electronic transmission (as defined in the DSTA) by a Shareholder
or by a Person or Persons authorized to act for a Shareholder shall
be deemed to be written and signed for purposes of this Section.
All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records. Any Shareholder
that has given a written consent or the Shareholder's proxyholder
or a personal representative of the Shareholder or its respective
proxyholder may revoke the consent by a writing received by the
secretary of the Trust either: (i) before the date set by resolution
of the Board of Trustees for the shareholder vote on such action;or
(ii) if no date is set by resolution of the Board, within 30 days
after the record date for such action as determined by reference
to Article V, Section 4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to
notice of, and to vote at, any meeting of Shareholders, the Board
of Trustees may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted by the Board of Trustees, and which record date shall
not be more than one hundred and twenty (120) days nor less than
ten (10) days before the date of any such meeting. A determination
of Shareholders of record entitled to notice of or to vote at a
meeting of Shareholders shall apply to any adjournment of the
meeting;provided, however, that the Board of Trustees may fix
a new record date for the adjourned meeting and shall fix a new
record date for any meeting that is adjourned for more than
one hundred and eighty (180) days from the record date set for
the original meeting. For purposes of determining the Shareholders
entitled to vote on any action without a meeting, the Board of
Trustees may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted
by the Board of Trustees, and which record date shall not be more
than thirty (30) days after the date upon which the resolution
fixing the record date is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall be
at the close of business on the day next preceding the day on
which notice is given or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held.
the record date for determining Shareholders entitled to
vote on any action by consent in writing without a meeting of
Shareholders, (1) when no prior action by the Board of Trustees
has been taken, shall be the day on which the first signed
written consent setting forth the action taken is delivered
to the Trust, or (2) when prior action of the Board of Trustees
has been taken, shall be at the close of business on the day
on which the Board of Trustees adopts the resolution taking
such prior action.
(c) For the purpose of determining the Shareholders of the
Trust or any Series or Class thereof who are entitled to receive
payment of any dividend or of any other distribution of assets
of the Trust or any Series or Class thereof (other than in connection
with a dissolution of the Trust or a Series, a merger, consolidation,
conversion, reorganization, or any other transactions, in each case
that is governed by Article VIII of the Declaration of Trust),
the Board of Trustees may:
from time to time fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted, and which record date shall not be more than sixty
(60) days before the date for the payment of such dividend and/or
such other distribution;
adopt standing resolutions fixing record dates and
related payment dates at periodic intervals of any duration
for the payment of such dividend and/or such other distribution;
and/or
delegate to an appropriate officer or officers of the
Trust the determination of such periodic record and/or payments
dates with respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding
the Board of Trustees from setting different record dates
for different Series or Classes.
Section 5. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes, meetings and related
matters.
ARTICLE VI
NET ASSET VALUE;DISTRIBUTIONS;
REDEMPTIONS;TRANSFERS
Section 1. Determination of Net Asset Value,
Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof,
the Board of Trustees shall have the power to determine
from time to time the offering price for authorized, but
unissued, Shares of the Trust or any Series or Class thereof,
respectively, that shall yield to the Trust or such Series or
Class not less than the net asset value thereof, in addition
to any amount of applicable sales charge to be paid to the
Principal Underwriter or the selling broker or dealer in connection
with the sale of such Shares, at which price the Shares of the
Trust or such Series or Class, respectively, shall be offered for
sale, subject to any other requirements or limitations of the
1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of
Trustees may, subject to the 1940 Act, prescribe (or delegate
to any officer of the Trust or any other Person the right to
prescribe) such bases and time (including any methodology or
plan) for determining the net asset value per Share of the
Trust or any Series or Class thereof, or net income attributable
to the Shares of the Trust or any Series or Class thereof or
the declaration and payment of dividends and distributions on
the Shares of the Trust or any Series or Class thereof, and the
method of determining the Shareholders to whom dividends and
distributions are payable, as it may deem necessary or desirable,
and such dividends and distributions may vary between the
Classes to reflect differing allocations of the expenses of
the Trust between such Classes to such extent and for such
purposes as the Trustees may deem appropriate. Without limiting
the generality of the foregoing, but subject to applicable
federal law, including the 1940 Act, any dividend or distribution
may be paid in cash and/or securities or other property, and
the composition of any such distribution shall be determined
by the Trustees (or by any officer of the Trust or any other
Person to whom such authority has been delegated by the Trustees)
and may be different among Shareholders including differences
among Shareholders of the same Series or Class.
(c) The Shareholders of the Trust or any Series or Class,
if any, shall be entitled to receive dividends and distributions
, when, if and as declared by the Board of Trustees with respect
thereto, provided that with respect to Classes, such dividends
and distributions shall comply with the 1940 Act. The right of
Shareholders to receive dividends or other distributions on Shares
of any Class may be set forth in a plan adopted by the Board of
Trustees and amended from time to time pursuant to the 1940 Act.
No Share shall have any priority or preference over any other Share
of the Trust with respect to dividends or distributions paid in
the ordinary course of business or distributions upon dissolution
of the Trust made pursuant to Article VIII, Section 1 hereof;
provided however, that
if the Shares of the Trust are divided into Series thereof,
no Share of a particular Series shall have any priority or
preference over any other Share of the same Series with respect
to dividends or distributions paid in the ordinary course of business
or distributions upon dissolution of the Trust or of such Series
made pursuant to Article VIII, Section 1 hereof;
if the Shares of the Trust are divided into Classes thereof,
no Share of a particular Class shall have any priority or preference
over any other Share of the same Class with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to
Article VIII, Section 1 hereof;and
if the Shares of a Series are divided into Classes
thereof, no Share of a particular Class of such Series shall
have any priority or preference over any other Share of the same
Class of such Series with respect to dividends or distributions
paid in the ordinary course of business or distributions upon
dissolution of such Series made pursuant to Article VIII,
Section 1 hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular Class of the Trust,
a particular Series, or a particular Class of a Series from
the Trust Property held with respect to the Trust, such Series
or such Class, respectively, according to the number of Shares
of the Trust, such Series or such Class held of record by such
Shareholders on the record date for any dividend or distribution;
provided however, that
if the Shares of the Trust are divided into Series thereof,
all dividends and distributions from the Trust Property and,
if applicable, held with respect to such Series, shall be
distributed to each Series thereof according to the net asset
value computed for such Series and within such particular
Series, shall be distributed ratably to the Shareholders of
such Series according to the number of Shares of such Series
held of record by such Shareholders on the record date for any
dividend or distribution;and
if the Shares of the Trust or of a Series are divided
into Classes thereof, all dividends and distributions from the
Trust Property and, if applicable, held with respect to the
Trust or such Series, shall be distributed to each Class thereof
according to the net asset value computed for such Class and
within such particular Class, shall be distributed ratably to the
Shareholders of such Class according to the number of Shares of
such Class held of record by such Shareholders on the record date
for any dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set aside
out of any funds of the Trust, or the applicable Series thereof,
available for dividends such sum or sums as the Board of Trustees
may from time to time, in its absolute discretion, think proper
as a reserve fund to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Trust,
or any Series thereof, or for such other lawful purpose as the
Board of Trustees shall deem to be in the best interests of the
Trust, or the applicable Series, as the case may be, and the
Board of Trustees may abolish any such reserve in the manner
in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the Trust
relating to the Shares, as such prospectus may be amended
from time to time:
(a) The Trust shall purchase such Shares as are offered
by any Shareholder for redemption upon the presentation of
a proper instrument of transfer together with a request
directed to the Trust or a Person designated by the Trust
that the Trust purchase such Shares and/or in accordance
with such other procedures for redemption as the Board of
Trustees may from time to time authorize. If certificates
have been issued to a Shareholder, any request for redemption
by such Shareholder must be accompanied by surrender of any
outstanding certificate or certificates for such Shares in
form for transfer, together with such proof of the authenticity
of signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value
thereof as determined by the Trustees (or by such Person to
whom such determination has been delegated) (excluding any
applicable redemption fee or sales load), in accordance with this
Declaration of Trust, the By-Laws, the 1940 Act and other applicable
law. Payments for Shares so redeemed by the Trust shall be made in
cash, except payment for such Shares may, at the option of the Board
of Trustees, or such officer or officers as it may duly authorize
in its complete discretion, be made in kind or partially in cash
and partially in kind. In case of any payment in kind, the
Board of Trustees, or its authorized officers, shall have
absolute discretion as to what security or securities of the
Trust or the applicable Series shall be distributed in kind
and the amount of the same;and the securities shall be
valued for purposes of distribution at the value at which they
were appraised in computing the then current net asset value of the
Shares, provided that any Shareholder who cannot legally acquire
securities so distributed in kind shall receive cash to the extent
permitted by the 1940 Act. Shareholders shall bear the expenses
of in-kind transactions, including, but not limited to, transfer
agency fees, custodian fees and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be made
by the Trust to the Shareholder within seven days after the date on
which the redemption request is received in proper form and/or such
other procedures authorized by the Board of Trustees are complied
with;provided, however, that if payment shall be made other
than exclusively in cash, any securities to be delivered as part
of such payment shall be delivered as promptly as any necessary
transfers of such securities on the books of the several
corporations or other Person whose securities are to be delivered
practicably can be made, which may not necessarily occur within
such seven-day period. In no case shall the Trust be liable for
any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment
in kind.
(d) The obligations of the Trust set forth in this Section 2
are subject to the provision that such obligations may be suspended
or postponed by the Board of Trustees (1) during any time the
New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays;(2) if permitted by the rules of the
Commission, during periods when trading on the Exchange is
restricted;or (3) during any National Financial Emergency.
The Board of Trustees may, in its discretion, declare that
the suspension relating to a National Financial Emergency
shall terminate, as the case may be, on the first business
day on which the Exchange shall have reopened or the period
specified above shall have expired (as to which, in the
absence of an official ruling by the Commission, the determination
of the Board of Trustees shall be conclusive). In the case of a
suspension of the right of redemption as provided herein,
a Shareholder may either withdraw the request for redemption or
receive payment based on the net asset value per Share next
determined after the termination of such suspension, less any
fees imposed on such redemption.
(e) The right of any Shareholder of the Trust or any Series
or Class thereof to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed, except the right of such
Shareholder to receive payment for such Shares, shall cease
at the time the purchase price of such Shares shall have been
fixed, as provided above.
Section 3. Redemptions at the Option of the Trust.
At the option of the Board of Trustees the Trust may, from time
to time, without the vote of the Shareholders, but subject to
the 1940 Act, redeem Shares or authorize the closing of any
Shareholder account, subject to such conditions and for such
reasons as may be established from time to time by the Board of
Trustees, including, without limitation, (i) the determination
of the Trustees that direct or indirect ownership of Shares of
the Trust or any Series has or may become concentrated in such
Shareholder to an extent that would disqualify any Series as a
regulated investment company under the Code (or any successor
statute thereto), (ii) the failure of a Shareholder to supply
a tax identification number if required to do so, or to have
the minimum investment required (which may vary by Series or
Class), (iii) if the Share activity of the account or ownership
of Shares by a particular Shareholder is deemed by the Trustees
either to affect adversely the management of the Trust or any
Series or Class or not to be in the best interests of the remaining
Shareholders of the Trust or any Series or Class or (iv) the failure
of a Shareholder to pay when due for the purchase of Shares issued
to him. Any such redemption shall be effected at the redemption
price and in the manner provided in this Article VI.
Section 4. Transfer of Shares. Shares shall be transferable
in accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who
is or was a Trustee, officer, employee or other agent of the Trust
or is or was serving at the request of the Trust as a trustee,
director, officer, employee or other agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise;"Proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal,
administrative or investigative;and "Expenses" include without
limitation attorneys' fees and any expenses of establishing a
right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good
faith and fair dealing, for such Agent's own willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Agent (such conduct referred to
herein as "Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the
fullest extent that limitations on the liability of Agents are
permitted by the DSTA, the Agents shall not be responsible or
liable in any event for any act or omission of any other Agent
of the Trust or any Investment Adviser or Principal Underwriter
of the Trust.
(d) No Agent, when acting in its respective capacity as such,
shall be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in subsections (b) and (c)
of this Section 1, for any act, omission or obligation of the
Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall,
in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure
to act resulting from reliance in good faith upon the books of
account or other records of the Trust, upon an opinion of counsel,
or upon reports made to the Trust by any of its officers or
employees or by the Investment Adviser, the Principal Underwriter,
any other Agent, selected dealers, accountants, appraisers or
other experts or consultants, regardless of whether such
counsel or expert may also be a Trustee, as to matters the
Trustee, officer or employee of the Trust reasonably believes
are within such Person's professional or expert competence.
The officers and Trustees may obtain the advice of counsel or
other experts with respect to the meaning and operation of
this Declaration of Trust, the By-Laws, applicable law and
their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission
in accordance with such advice, records and/or reports and
no inference concerning liability shall arise from a failure
to follow such advice, records and/or reports. The officers
and Trustees shall not be required to give any bond hereunder,
nor any surety if a bond is required by applicable law.
(f) The failure to make timely collection of dividends or
interest, or to take timely action with respect to entitlements,
on the Trust's securities issued in emerging countries, shall
not be deemed to be negligence or other fault on the part of
any Agent, and no Agent shall have any liability for such failure
or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect
the liquidity of the Trust's assets or from any war or political
act of any foreign government to which such assets might be exposed,
except, in the case of a Trustee or officer, for liability
resulting from such Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article
applies to events occurring at the time a Person serves as an
Agent whether or not such Person is an Agent at the time of
any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely
affect any right or protection of an Agent that exists at the
time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify,
out of Trust Property, to the fullest extent permitted under
applicable law, any Person who was or is a party, potential
party or non-party witness or is threatened to be made a party,
potential party or non-party witness to any Proceeding by
reason of the fact that such Person is or was an Agent of
the Trust, against Expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection
with such Proceeding if such Person acted in good faith or in
the case of a criminal proceeding, had no reasonable cause to
believe the conduct of such Person was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction or
plea of nolo contendere or its equivalent shall not of itself
create a presumption that the Person did not act in good faith
or that the Person had reasonable cause to believe that the
Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any
provision to the contrary contained herein, there shall be
no right to indemnification for any liability arising by
reason of the Agent's Disqualifying Conduct. In respect of
any claim, issue or matter as to which that Person shall
have been adjudged to be liable in the performance of that
Person's duty to the Trust or the Shareholders, indemnification
shall be made only to the extent that the court in which that
action was brought shall determine, upon application or otherwise,
that in view of all the circumstances of the case, that Person was
not liable by reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article
shall be made by the Trust if authorized in the specific case on
a determination that indemnification of the Agent is proper in the
circumstances by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the Agent
was not liable by reason of Disqualifying Conduct (including, but
not limited to, dismissal of either a court action or an
administrative proceeding against the Agent for insufficiency of
evidence of any Disqualifying Conduct) or, (ii) in the absence of
such a decision, a reasonable determination, based upon a review
of the facts, that the Agent was not liable by reason of
Disqualifying Conduct, by (1) the vote of a majority of a quorum
of the Trustees who are not (x) "interested persons" of the Trust
as defined in Section 2(a)(19) of the 1940 Act, (y) parties to the
proceeding, or (z) parties who have any economic or other interest
in connection with such specific case (the "disinterested, non-party
Trustees");or (2) by independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the
final disposition of the Proceeding on receipt of an undertaking
by or on behalf of the Agent to repay the amount of the advance
if it shall be determined ultimately that the Agent is not
entitled to be indemnified as authorized in this Article;
provided, that at least one of the following conditions for
the advancement of expenses is met: (i) the Agent shall
provide a security for his undertaking, (ii) the Trust shall
be insured against losses arising by reason of any lawful
advances, or (iii) a majority of a quorum of the disinterested,
non-party Trustees of the Trust, or an independent legal
counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that
the Agent ultimately will be found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in
this Article shall affect any right to indemnification to
which Persons other than Trustees and officers of the Trust
or any subsidiary thereof may be entitled by contract or
otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article
does not apply to any Proceeding against any trustee,
investment manager or other fiduciary of an employee benefit
plan in that Person's capacity as such, even though that Person
may also be an Agent of the Trust as defined in Section 1 of
this Article. Nothing contained in this Article shall limit
any right to indemnification to which such a trustee, investment
manager, or other fiduciary may be entitled by contract or
otherwise which shall be enforceable to the extent permitted
by applicable law other than this Article.
(g) Joint and Several Obligations. Notwithstanding any
other provision in this Declaration of Trust to the contrary,
any amount of indemnification and any advancement of expenses
that any Agent is entitled to be paid under Section 2 shall be
deemed to be joint and several obligations of the Trust and
each Series, and the assets of the Trust and each Series shall
be subject to the claims of any Agent therefor under this
Article VII;provided that any such liability, expense or
obligation may be allocated and charged by the Board of
Trustees between or among the Trust and/or any one or more
Series (and Classes) in such manner as the Board of Trustees
in its sole discretion deem fair and equitable.
Section 3. Insurance. To the fullest extent permitted
by applicable law, the Board of Trustees shall have the authority
to purchase with Trust Property, insurance for liability and for
all Expenses reasonably incurred or paid or expected to be paid
by an Agent in connection with any Proceeding in which such Agent
becomes involved by virtue of such Agent's actions, or omissions
to act, in its capacity or former capacity with the Trust, whether
or not the Trust would have the power to indemnify such Agent
against such liability.
Section 4. Derivative Actions. In addition to the requirements
set forth in Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only if the
following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Board of Trustees to bring the subject action unless an
effort to cause the Board of Trustees to bring such an action is
not likely to succeed. For purposes of this Section 4, a demand
on the Board of Trustees shall only be deemed not likely to succeed
and therefore excused if a majority of the Board of Trustees, or
a majority of any committee established to consider the merits of
such action, is composed of Trustees who are not "independent
trustees" (as such term is defined in the DSTA).
(b) Unless a demand is not required under paragraph (a) of
this Section 4, Shareholders eligible to bring such derivative
action under the DSTA who hold at least 10% of the outstanding
Shares of the Trust, or 10% of the outstanding Shares of the Series
or Class to which such action relates, shall join in the request
for the Board of Trustees to commence such action;and
(c) Unless a demand is not required under paragraph (a) of this
Section 4, the Board of Trustees must be afforded a reasonable
amount of time to consider such Shareholder request and to
investigate the basis of such claim. The Board of Trustees
shall be entitled to retain counsel or other advisors in considering
the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the
expense of any such advisors in the event that the Board of Trustees
determine not to bring such action.
For purposes of this Section 4, the Board of Trustees may designate
a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who
are "independent trustees" (as such term is defined in the DSTA).
In addition to all suits, claims or other actions (collectively,
"claims") that under applicable law must be brought as derivative
claims, each Shareholder of the Trust or any Series or Class thereof
agrees that any claim that affects all Shareholders of a Series or
Class equally, that is, proportionately based on their number of
Shares in such Series or Class, must be brought as a derivative
claim subject to this Section 4 irrespective of whether such claim
involves a violation of the Shareholders' rights under this
Declaration of Trust or any other alleged violation of contractual
or individual rights that might otherwise give rise to a direct
claim.
Section 5. Jurisdiction and Waiver of Jury Trial.
In accordance with Section 3804(e) of the DSTA any suit, action or
proceeding brought by or in the right of any Shareholder or any
person claiming any interest in any Shares seeking to enforce any
provision of, or based on any matter arising out of, or in
connection with, this Declaration of Trust or the Trust, any
Series or Class or any Shares, including any claim of any nature
against the Trust, any Series or Class, the Trustees or officers
of the Trust, shall be brought exclusively in the Court of
Chancery of the State of Delaware to the extent there is subject
matter jurisdiction in such court for the claims asserted or,
if not, then in the Superior Court of the State of Delaware, and
all Shareholders and other such Persons hereby irrevocably consent
to the jurisdiction of such courts (and the appropriate appellate
courts therefrom) in any such suit, action or proceeding and
irrevocably waive, to the fullest extent permitted by law, any
objection they may make now or hereafter have to the laying of
the venue of any such suit, action or proceeding in such court
or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum and further, in
connection with any such suit, action, or proceeding brought in
the Superior Court in the State of Delaware, all Shareholders
and all other such Persons irrevocably waive the right to a trial
by jury to the fullest extent permitted by law. All Shareholders
and other such Persons agree that service of summons, complaint
or other process in connection with any proceedings may be made by
registered or certified mail or by overnight courier addressed to
such Person at the address shown on the books and records of the
Trust for such Person or at the address of the Person shown on
the books and records of the Trust with respect to the Shares
that such Person claims an interest in. Service of process in
any such suit, action or proceeding against the Trust or any
Trustee or officer of the Trust may be made at the address of
the Trust's registered agent in the State of Delaware.
Any service so made shall be effective as if personally made
in the State of Delaware.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each
Series shall have perpetual existence, except that the Trust
(or a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders
of not less than a majority of the Shares of the Trust cast, or
(ii) at the discretion of the Board of Trustees either (A) at
any time there are no Shares outstanding of the Trust, or (B)
upon prior written notice to the Shareholders of the Trust;
or
(b) With respect to a particular Series, (i) upon the vote
of the holders of not less than a majority of the Shares of
such Series cast, or (ii) at the discretion of the Board of
Trustees either (A) at any time there are no Shares outstanding
of such Series, or (B) upon prior written notice to the
Shareholders of such Series;or
(c) With respect to the Trust (or a particular Series),
upon the occurrence of a dissolution or termination event
pursuant to any other provision of this Declaration of
Trust (including Article VIII, Section 2) or the DSTA;or
(d) With respect to any Series, upon any event that
causes the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series,
as the case may be), the Board of Trustees shall
(in accordance with Section 3808 of the DSTA) pay or make
reasonable provision to pay all claims and obligations of
the Trust and/or each Series (or the particular Series, as the
case may be), including, without limitation, all contingent,
conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations which are known to the Trust, but
for which the identity of the claimant is unknown. If there are
sufficient assets held with respect to the Trust and/or each Series
of the Trust (or the particular Series, as the case may be),
such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are
insufficient assets held with respect to the Trust and/or
each Series of the Trust (or the particular Series, as the
case may be), such claims and obligations shall be paid
or provided for according to their priority and, among
claims and obligations of equal priority, ratably to the
extent of assets available therefor. Any remaining assets
(including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust and/or
each Series of the Trust (or the particular Series, as the
case may be) shall be distributed to the Shareholders of the
Trust and/or each Series of the Trust (or the particular Series,
as the case may be) ratably according to the number of Shares
of the Trust and/or such Series thereof (or the particular Series,
as the case may be) held of record by the several Shareholders
on the date for such dissolution distribution;provided, however,
that if the Shares of the Trust or a Series are divided into Classes
thereof, any remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to
the Trust or such Series, as applicable, shall be distributed
to each Class of the Trust or such Series according to the net
asset value computed for such Class and within such particular
Class, shall be distributed ratably to the Shareholders of such
Class according to the number of Shares of such Class held of
record by the several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance with
Section 3808 of the DSTA and its termination, any one (1)
Trustee shall execute, and cause to be filed, a certificate of
cancellation, with the office of the Secretary of State of the
State of Delaware in accordance with the provisions of Section
3810 of the DSTA. In connection with the dissolution and liquidation
of the Trust or the termination of any Series or any Class, the
Trustees may provide for the establishment and utilization of a
liquidating trust or similar vehicle.
Section 2. Merger or Consolidation;Conversion;Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger
or consolidation, the Board of Trustees, by vote of a majority of
the Trustees, may cause the Trust to merge or consolidate with or
into one or more statutory trusts or "other business entities"
(as defined in Section 3801 of the DSTA) formed or organized or
existing under the laws of the State of Delaware or any other
state of the United States or any foreign country or other foreign
jurisdiction. Any such merger or consolidation shall not require
the vote of the Shareholders unless such vote is required by the
1940 Act;provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders
of such merger or consolidation. By reference to Section 3815(f)
of the DSTA, any agreement of merger or consolidation approved in
accordance with this Section 2(a) may, without a Shareholder vote
unless required by the 1940 Act or the requirements of any
securities exchange on which Shares are listed for trading, effect
any amendment to this Declaration of Trust or the By-Laws or effect
the adoption of a new governing instrument if the Trust is the
surviving or resulting statutory trust in the merger or
consolidation, which amendment or new governing instrument
shall be effective at the effective time or date of the
merger or consolidation. In all respects not governed by
the DSTA, the 1940 Act, other applicable law or the requirements
of any securities exchange on which Shares are listed for trading,
the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or
consolidation, including the power to create one or more separate
statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred
and to provide for the conversion of Shares into beneficial
interests in such separate statutory trust or trusts. In
connection with any merger or consolidation, if the Trust
is the surviving or resulting statutory trust, any one
(1) Trustee shall execute, and cause to be filed, a certificate
of merger or consolidation in accordance with Section 3815 of
the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority
of the Trustees, may cause (i) the Trust to convert to an
"other business entity" (as defined in Section 3801 of the DSTA)
formed or organized under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DSTA;(ii) the Shares
of the Trust or any Series or Class to be converted into beneficial
interests in another statutory trust (or series or class thereof)
created pursuant to this Section 2 of this Article VIII, or (iii)
the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. Any such
statutory conversion, Share conversion or Share exchange shall
not require the vote of the Shareholders unless such vote is
required by the 1940 Act;provided however, that the Board of
Trustees shall provide at least thirty (30) days' prior written
notice to the Shareholders of the Trust of any conversion of Shares
of the Trust pursuant to Subsections (b)(i) or (b)(ii) of this
Section 2 or exchange of Shares of the Trust pursuant to Subsection
(b)(iii) of this Section 2, and at least thirty (30) days' prior
written notice to the Shareholders of a particular Series or Class
of any conversion of Shares of such Series or Class pursuant to
Subsection (b)(ii) of this Section 2 or exchange of Shares of
such Series or Class pursuant to Subsection (b)(iii) of this
Section 2. In all respects not governed by the DSTA, the
1940 Act, other applicable law or the requirements of any
securities exchange on which Shares are listed for trading,
the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a statutory
conversion, Share conversion or Share exchange, including the
power to create one or more separate statutory trusts to which
all or any part of the assets, liabilities, profits or losses
of the Trust may be transferred and to provide for the conversion
of Shares of the Trust or any Series or Class thereof into
beneficial interests in such separate statutory trust or trusts
(or series or class thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority
of the Trustees, may cause the Trust to sell, convey and transfer
all or substantially all of the assets of the Trust ("sale of Trust
assets") or all or substantially all of the assets associated with
any one or more Series ("sale of such Series' assets") or any one
or more Classes ("sale of such Class's assets"), to another trust,
statutory trust, partnership, limited partnership, limited liability
company, corporation or other association organized under the
laws of any state, or to one or more separate series or class thereof,
or to the Trust to be held as assets associated with one or more
other Series or Classes of the Trust, in exchange for cash, shares
or other securities (including, without limitation, in the case
of a transfer to another Series or Class of the Trust, Shares of
such other Series or Class) with such sale, conveyance and transfer
either (a) being made subject to, or with the assumption by the
transferee of, the liabilities associated with the Trust or the
liabilities associated with the Series or Class the assets of
which are so transferred, as applicable, or (b) not being made
subject to, or not with the assumption of, such liabilities.
Any such sale, conveyance and transfer shall not require the
vote of the Shareholders unless such vote is required by the
1940 Act;provided however, that the Board of Trustees shall
provide at least thirty (30) days' prior written notice to
the Shareholders of the Trust of any such sale of Trust assets,
at least thirty (30) days' prior written notice to the
Shareholders of a particular Series of any sale of such Series'
assets, and at least thirty (30) days' prior written notice to
the Shareholders of a particular Class of any sale of such
Class's assets. Following such sale of Trust assets, the
Board of Trustees shall distribute such cash, shares or other
securities ratably among the Shareholders of the Trust
(giving due effect to the assets and liabilities associated with
and any other differences among the various Series the assets
associated with which have been so sold, conveyed and transferred,
and due effect to the differences among the various Classes
within each such Series). Following a sale of such Series' assets,
the Board of Trustees shall distribute such cash, shares or
other securities ratably among the Shareholders of such Series
(giving due effect to the differences among the various Classes
within each such Series). Following a sale of such Class's
assets, the Board of Trustees shall distribute such cash,
shares or other securities ratably among the Shareholders of
such Class. If all of the assets of the Trust have been
so sold, conveyed and transferred, the Trust shall be dissolved;
and if all of the assets of a Series or Class have been so sold,
conveyed and transferred, such Series and the Classes thereof,
or such Class, shall be dissolved. In all respects not governed
by the DSTA, the 1940 Act or other applicable law, the Board of
Trustees shall have the power to prescribe additional procedures
necessary or appropriate to accomplish such sale, conveyance and
transfer, including the power to create one or more separate
statutory trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide
for the conversion of Shares into beneficial interests in such
separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by
the 1940 Act, the Board of Trustees, by vote of a majority
of the Trustees, and without a Shareholder vote, may cause
the Trust or any one or more Series to convert to a master
feeder structure (a structure in which a feeder fund invests
all of its assets in a master fund, rather than making investments
in securities directly) and thereby cause existing Series of the
Trust to either become feeders in a master fund, or to become
master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights.
No Shareholder shall be entitled, as a matter of right,
to relief as a dissenting Shareholder in respect of any
proposal or action involving the Trust or any Series or
any Class thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of
Trust may be restated and/or amended at any time by an
instrument in writing signed by not less than a majority
of the Board of Trustees and, to the extent required by
the 1940 Act or the requirements of any securities exchange
on which Shares are listed for trading, by approval of
such amendment by the Shareholders in accordance with Article III,
Section 6 hereof and Article V hereof. Any such restatement
and/or amendment hereto shall be effective immediately upon
execution and approval or upon such future date and time as
may be stated therein. The Certificate of Trust shall be
restated and/or amended at any time by the Board of Trustees,
without Shareholder approval, to correct any inaccuracy
contained therein. Any such restatement and/or amendment
of the Certificate of Trust shall be executed by at least
one (1) Trustee and shall be effective immediately upon
its filing with the office of the Secretary of State of
the State of Delaware or upon such future date as may be
stated therein.
ARTICLE X
MISCELLANEOUS
Section 1. References;Headings;Counterparts. In this Declaration
of Trust and in any restatement hereof and/or amendment hereto,
references to this instrument, and all expressions of similar
effect to "herein," "hereof" and "hereunder," shall be deemed to
refer to this instrument as so restated and/or amended. Headings
are placed herein for convenience of reference only and shall not
be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular
number is used herein, the same shall include the plural;and
the neuter, masculine and feminine genders shall include each
other, as applicable. Any references herein to specific sections
of the DSTA, the Code or the 1940 Act shall refer to such
sections as amended from time to time or any successor sections
thereof. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and
administered according to the laws of the State of Delaware
and the applicable provisions of the 1940 Act and the Code;
provided, that, all matters relating to or in connection with
the conduct of Shareholders' and Trustees' meetings (excluding,
however, the Shareholders' right to vote), including, without
limitation, matters relating to or in connection with record
dates, notices to Shareholders or Trustees, nominations and
elections of Trustees, voting by, and the validity of,
Shareholder proxies, quorum requirements, meeting adjournments,
meeting postponements and inspectors, which are not specifically
addressed in this Declaration of Trust, in the By-Laws or in
the DSTA (other than DSTA Section 3809), or as to which an
ambiguity exists, shall be governed by the Delaware General
Corporation Law, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation, the Shareholders
were shareholders of such Delaware corporation and the
Trustees were directors of such Delaware corporation;provided,
further, however, that there shall not be applicable to the
Trust, the Trustees, the Shareholders or any other Person or
to this Declaration of Trust or the By-Laws (a) the provisions
of Sections 3533, 3540 and 3583(a) of Title 12 of the Delaware
Code or (b) any provisions of the laws (statutory or common)
of the State of Delaware (other than the DSTA) pertaining to
trusts which relate to or regulate (i) the filing with any
court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements
to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other governmental
approval concerning the acquisition, holding or disposition of
real or personal property, (iv) fees or other sums payable to
trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature,
amount or concentration of trust investments or requirements
relating to the titling, storage or other manner of holding trust
assets, or (vii) the establishment of fiduciary or other standards
or responsibilities or limitations on the indemnification, acts
or powers of trustees or other Persons, which are inconsistent with
the limitations of liabilities or authorities and powers of the
Trustees or officers of the Trust set forth or referenced in
this Declaration of Trust or the By-Laws. The Trust shall be
a Delaware statutory trust pursuant to the DSTA, and without
limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a statutory
trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940
Act, the Code, the DSTA, or with other applicable laws and
regulations, the conflicting provision shall be deemed not to
have constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with such laws
or regulations;provided, however, that such determination shall
not affect any of the remaining provisions of this Declaration of
Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in
any other jurisdiction or any other provision of this Declaration
of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the
Trustees to create hereby a statutory trust pursuant to the DSTA,
and thereby to create the relationship of trustee and beneficial
owners within the meaning of the DSTA between, respectively, the
Trustees and each Shareholder. It is not the intention of the Trustees
to create a general or limited partnership, limited liability company,
joint stock association, corporation, bailment, or any form of legal
relationship other than a statutory trust pursuant to the DSTA.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners
or members of a joint stock association.
Section 5. Use of the Names "Franklin," "Templeton," "Fiduciary
Trust," and/or "Institutional Fiduciary Trust". The Board of
Trustees expressly agrees and acknowledges that the names "Franklin,
" "Templeton," "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," "Templeton," "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", "Templeton," "Fiduciary Trust" and/or
"Institutional Fiduciary Trust" in their names and
in the names of any series or Class of shares of such funds.
IN WITNESS WHEREOF, the Trustees of Franklin Custodian Funds
named below do hereby make and enter into this Declaration of Trust
as of the date first written above.
/s/ Harris J. Ashton
Harris J. Ashton, Trustee
/s/ Mary C. Choksi
Mary C. Choksi, Trustee
/s/ Gregory E. Johnson
Gregory E. Johnson, Trustee
/s/ J. Michael Luttig
J. Michael Luttig, Trustee /s/ Terrence J. Checki
Terrence J. Checki, Trustee
/s/ Edith E. Holiday
Edith E. Holiday, Trustee
/s/ Rupert H. Johnson, Jr.
Rupert H. Johnson, Jr., Trustee
/s/ Larry D. Thompson
Larry D. Thompson, Trustee
/s/ John B. Wilson
John B. Wilson, Trustee