Exhibit (a)
AGREEMENT AND DECLARATION OF TRUST
OF
ALLEGIANT ADVANTAGE FUNDS
A DELAWARE STATUTORY TRUST
TABLE OF CONTENTS
PAGE
ARTICLE I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS...............................................1
Section 1. Name..................................................................................1
Section 2. Offices of the Trust..................................................................2
Section 3. Registered Agent and Registered Office................................................2
Section 4. Definitions...........................................................................2
ARTICLE II PURPOSE OF TRUST...........................................................................4
ARTICLE III SHARES.....................................................................................7
Section 1. Division of Beneficial Interest.......................................................7
Section 2. Ownership of Shares...................................................................9
Section 3. Sale of Shares........................................................................9
Section 4. Status of Shares and Limitation of Personal Liability.................................9
Section 5. Tax Status; Partnership Provisions....................................................9
Section 6. Establishment and Designation of Series and Classes..................................10
Section 7. Indemnification of Shareholders......................................................14
ARTICLE IV THE BOARD OF TRUSTEES.....................................................................14
Section 1. Number, Election, Term, Removal and Resignation......................................14
Section 2. Trustee Action by Written Consent Without a Meeting..................................15
Section 3. Powers; Other Business Interests; Quorum and Required Vote...........................15
Section 4. Payment of Expenses by the Trust.....................................................17
Section 5. Payment of Expenses by Shareholders..................................................18
Section 6. Ownership of Trust Property..........................................................18
Section 7. Service Contracts....................................................................18
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS..................................................19
Section 1. Voting Powers........................................................................19
Section 2. Quorum and Required Vote.............................................................19
Section 3. Shareholder Action by Written Consent Without a Meeting..............................20
Section 4. Record Dates.........................................................................20
Section 5. Additional Provisions................................................................22
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS....................................22
Section 1. Determination of Net Asset Value, Net Income, and Distributions......................22
Section 2. Redemptions at the Option of a Shareholder...........................................24
Section 3. Redemptions at the Option of the Trust...............................................25
Section 4. Transfer of Shares...................................................................25
-i-
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VII LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT......................................25
Section 1. Limitation of Liability..............................................................25
Section 2. Indemnification......................................................................26
Section 3. Insurance............................................................................27
Section 4. Derivative Actions...................................................................28
ARTICLE VIII CERTAIN TRANSACTIONS......................................................................28
Section 1. Dissolution of Trust or Series.......................................................28
Section 2. Merger or Consolidation; Conversion; Reorganization..................................29
Section 3. Master Feeder Structure..............................................................31
Section 4. Absence of Appraisal or Dissenters' Rights...........................................31
ARTICLE IX AMENDMENTS................................................................................31
Section 1. Amendments Generally.................................................................31
ARTICLE X MISCELLANEOUS.............................................................................32
Section 1. References; Headings; Counterparts...................................................32
Section 2. Applicable Law.......................................................................32
Section 3. Provisions in Conflict with Law or Regulations.......................................33
Section 4. Statutory Trust Only.................................................................33
Section 5. Use of the Name "Allegiant Advantage"................................................33
-ii-
AGREEMENT AND DECLARATION OF TRUST
OF
ALLEGIANT ADVANTAGE FUNDS
THIS AGREEMENT AND DECLARATION OF TRUST is made as of August 25, 2009,
by the Trustees hereunder, and by the holders of Shares to be issued by
Allegiant Advantage Funds ("Trust") hereunder, as hereinafter provided.
WITNESSETH:
WHEREAS, the Trust is being formed to carry on the business of an
open-end management investment company as defined in the 1940 Act; and
WHEREAS, this Trust is authorized to 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 DSTA and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Trustees will hold all cash, securities, and other assets that they may
acquire, from time to time, in any manner as Trustees hereunder IN TRUST and
will manage and dispose of the same, from time to time, upon the following terms
and conditions for the benefit of the holders of Shares issued hereunder as
hereinafter set forth; and
(ii) this Declaration of Trust and the Bylaws 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 Bylaws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. The Trust shall be known as "Allegiant Advantage
Funds" and the Board of Trustees shall conduct the business of the Trust under
that name, or any other name as the Board of Trustees may designate, from time
to time. The Trustees may, without Shareholder approval, change the name of the
Trust or any Series or Class thereof. In the event of any such change, the
Trustees shall cause notice to be given to the affected Shareholders within a
reasonable time after the implementation of any such change.
-1-
Section 2. Offices of the Trust. The Board at any time may 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 in the State of Delaware are as set forth in the Trust's Certificate of
Trust. The Trustees may, without Shareholder approval, change the registered
agent and the registered office of the 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;
(c) "Board of Trustees" or "Board" shall mean the governing body of the
Trust, which 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) "Bylaws" shall mean Bylaws of the Trust, as amended or restated,
from time to time, in accordance with Article VIII therein. Such Bylaws may
contain any provision not inconsistent with applicable law or this Declaration
of Trust, relating to the governance of the Trust. The Bylaws are expressly
herein incorporated by reference as part of the "governing instrument" of the
Trust within the meaning of the DSTA;
(e) "Certificate of Trust" shall mean the certificate of trust of the
Trust filed on August 25, 2009 with the Office of the Secretary of State of the
State of Delaware, as required under the DSTA, as such certificate has been or
shall be amended or restated, from time to time;
(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) "DGCL" shall mean the General Corporation Law of the State of
Delaware (8 Del. C. ss. 101, et seq.), as amended from time to time;
(j) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C. ss.
3801, et seq.), as amended, from time to time;
(k) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, including resolutions of the Board of Trustees of the Trust that have
been adopted prior to the date of this Declaration of Trust, or that may be
adopted hereafter, regarding the establishment and designation of Series and/or
Classes of Shares of the Trust, and any amendments or modifications to such
resolutions, as of the date of the adoption of each such resolution;
-2-
(l) "General Liabilities" shall have the meaning given it in Article
III, Section 6(b) of this Declaration of Trust;
(m) "Initial Trustee" shall mean Xxxxxx X. Xxxxxx, in her capacity as a
Trustee of the Trust.
(n) "Interested Person" shall have the meaning given that term in the
1940 Act;
(o) "Investment Adviser" or "Adviser" shall mean a Person furnishing
services to the Trust pursuant to any investment advisory or investment
management contract described in Article IV, Section 7(a) hereof;
(p) "National Financial Emergency" shall mean, as determined by the
Board in its sole discretion, 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 to determine fairly
the net asset value of its assets; or (iii) such other period as the Commission
may by order permit for the protection of investors;
(q) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association, corporation,
organization, custodian, nominee, government or any political subdivision,
agency or instrumentality thereof 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;
(r) "Principal Underwriter" shall have the meaning given that term in
the 1940 Act;
(s) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of Article III hereof;
(t) "Shares" shall mean the transferable shares of beneficial interest
into which the beneficial interest in the Trust have been or shall be divided,
from time to time, and shall include fractional and whole shares;
(u) "Shareholder" shall mean a record owner of Shares pursuant to this
Declaration of Trust and the Bylaws;
(v) "Trust" shall mean Allegiant Advantage Funds, the Delaware
statutory trust formed hereby and by filing the Certificate of Trust with the
Office of the Secretary of State of the State of Delaware;
(w) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, that 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
-3-
(x) "Trustee" or "Trustees" shall mean each Person who signs this
Declaration of Trust as a trustee and all other Persons who, from time to time,
may be duly elected or appointed, qualified, and serving on the Board of
Trustees in accordance with the provisions hereof and the Bylaws, so long as
such signatory or other Person continues in office in accordance with the terms
hereof and the Bylaws. 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 Bylaws.
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 or
any Series, 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;
-4-
(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 Board of Trustees
shall deem proper, granting to such Person or Persons such power and discretion
with relation to securities or property as the Board of Trustees shall deem
proper;
(e) To exercise powers and rights of subscription or otherwise that
arise in any manner 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 or any Series; 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 or any Series;
(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 Board of 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 Board of
Trustees shall deem proper;
(i) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any Series 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;
-5-
(l) To purchase and pay for such insurance as the Board of Trustees may
deem necessary or appropriate for the conduct of the business entirely out of
Trust Property, 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 or any Series, 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 Bylaws, 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 or any Series;
(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 or
any Series, and to mortgage or pledge the whole or any part of the property and
franchises of the Trust or any Series, 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 or any Series, from time to time, to such extent as
the Board of Trustees shall determine, consistent with the provisions of this
Declaration of Trust; and to reacquire and purchase, 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 or any Series, and out of the assets
of the Trust or any Series 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 Board of 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 or any Series, whether or
not the Trust or any Series 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 or any Series;
-6-
(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.
Neither the Trust nor any Series shall 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 any Series or take any
other action hereunder.
The foregoing clauses each shall 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 or any Series, and that they are in furtherance
of, and in addition to and not in limitation of, the general powers conferred
upon the Trust or any Series 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 Interests.
(a) The beneficial interests 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 of Shares into separate Classes of Shares in
accordance with the 1940 Act. As of the effective date of this Declaration of
Trust, any new Series and Classes, if any, shall be established and designated
by the Board of Trustees pursuant to Article III, Section 6 hereof. If no
separate Series or Classes shall be established, the Shares of the Trust shall
have the rights, powers, and duties provided for herein, including Article III,
Section 6 hereof to the extent relevant and not otherwise provided for herein.
All references to Shares in this Declaration of Trust shall be deemed to be
Shares of the Trust or any or all Series or Classes thereof that may be
established from time to time, as the context may require.
-7-
(i) The fact that the Trust shall have one or more established and
designated Classes of the Trust shall not limit the authority of the Board of
Trustees to establish and designate additional Classes of the Trust. The fact
that one or more Classes of the Trust shall have been established initially and
designated without any specific establishment or designation of a Series (i.e.,
that all Shares of the Trust are initially Shares of one or more Classes) shall
not limit the authority of the Board of Trustees to later establish and
designate a Series and establish and designate the Class or Classes of the Trust
as Class or Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been established
and designated without any specific establishment or designation of Classes
(i.e., that all Shares of such Series are initially of a single Class) shall not
limit the authority of the Board of Trustees to establish and designate separate
Classes of said Series. The fact that a Series shall have more than one
established and designated Class shall not limit the authority of the Board of
Trustees to establish and designate additional Classes of said Series.
(b) Subject to any requirements or limitations of the 1940 Act, the
Board of Trustees shall have the power to issue authorized but unissued Shares
of beneficial interest of the Trust, or any Series and Class thereof, from time
to time, for such consideration paid wholly or partly in cash, securities, or
other property, as may be determined, from time to time, by the Board of
Trustees. 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 the Board
of Trustees may determine, or cancel, at its discretion, from time to time, any
Shares reacquired by the Trust. The Board of Trustees may classify or reclassify
any unissued Shares of beneficial interest, or any Shares of beneficial interest
of the Trust or any Series or Class thereof, which were previously issued and
are reacquired, into one or more Series or Classes that may be established and
designated, from time to time. Notwithstanding the foregoing, the Trust and any
Series thereof may acquire, hold, sell, and otherwise deal in, for purposes of
investment or otherwise, the Shares of any other Series of the Trust or Shares
of the Trust, and such Shares shall not be deemed treasury Shares or cancelled.
Shares held in the treasury shall not confer any voting rights on the Trustees
and shall not be entitled to any dividends or other distributions declared with
respect to the Shares.
(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
and the Bylaws. 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,
from time to time, may divide or combine the Shares of the Trust, or any
particular Series thereof, into a greater or lesser number of Shares of the
Trust or that Series, respectively. Such division or combination shall not
materially change the proportionate beneficial interests of the holders of
Shares of the Trust or that Series, as the case may be, in the Trust Property at
the time of such division or combination that is held with respect to the Trust
or that Series, as the case may be.
(d) Any Trustee, officer, or other agent of the Trust, and any
organization in which any such Person has an economic or other interest, may
acquire, own, hold, and dispose of Shares of beneficial interest in the Trust or
any Series and Class thereof, 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 in the 1940 Act.
-8-
Section 2. Ownership of Shares. The Board of Trustees may make such
rules not inconsistent with the provisions of the 1940 Act as the Board of
Trustees considers appropriate for recording the ownership of Shares, the
issuance of Share certificates, the transfer of Shares of the Trust, and each
Series and Class thereof, if any, and similar matters.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable law,
the Trust or any Series may sell its authorized but unissued Shares of
beneficial interest to such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may authorize, from time to time. All
consideration received by the Trust or any Series in 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, as determined by the
Board of Trustees in accordance with Article VI hereof, 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 or the selling broker or dealer to impose a sales charge
upon any such sale. Every Shareholder by virtue of having become a Shareholder
shall be deemed to have expressly assented and agreed to the terms of this
Declaration of Trust and to have become bound as a party hereto.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to Shareholders only the
rights provided in this Declaration of Trust, the Bylaws, and under applicable
law. Ownership of Shares shall not entitle the Shareholders 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, the Bylaws and applicable law.
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 personally, at any time may
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 DGCL.
Section 5. Tax Status; Partnership Provisions
(a) Power to Make Tax Status Election. The Board of Trustees shall have
the power, in its discretion, to make an initial entity classification election,
and to change any such entity classification election, of the Trust and any
Series for U.S. federal income tax purposes as may be permitted or required
under the Code, without the vote or consent of any Shareholder. In furtherance
thereof, the Board of Trustees, or an appropriate officer as determined by the
Board of Trustees, is authorized (but not required) to make and sign any such
entity classification election on Form 8832, Entity Classification Election (or
successor form thereto), on behalf of the Trust or any Series, sign the consent
statement contained therein on behalf of all of the Shareholders thereof, and
file the same with the U.S. Internal Revenue Service.
-9-
(b) Series Established as a Partnership. In accordance with Section
5(a) and Section 6 of this Article III, the resolution, as may be amended,
establishing or changing the classification of a Series as a Partnership for
U.S. federal income tax purposes may provide, among other things, that
notwithstanding anything in this Declaration of Trust to the contrary (i) Book
Capital Accounts (as defined in any resolution establishing and designating such
Series) are to be determined and maintained for each Shareholder in accordance
with Section 704(b) of the Code (and any successor provision thereto); (ii) upon
liquidation of a Series (or any Shareholder's interest therein), liquidating
distributions shall be made in accordance with the positive Book Capital Account
balances of the Shareholders; and, (iii) if any Shareholder in such Series has a
deficit balance in his Book Capital Account following the liquidation of his
interest in the Series, such Shareholder is unconditionally required to restore
the amount of such deficit balance to the Series, or in lieu thereof, the
resolution establishing the Series contain a "qualified income offset" within
the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
Section 6. Establishment and Designation of Series and Classes. Without
limiting the authority of the Trustees to establish and designate any further
Series or Classes, to classify or reclassify all or any part of the issued
Shares of any Series to make them part of an existing or newly created Class or
to amend rights and preferences of any new or existing Series or Class, all
without Shareholder approval, the Trustees hereby establish and designate the
separate Series of Shares (and any designated Classes thereof, if any) as
previously authorized by resolution of the Trustees, as of the date of this
Declaration of Trust. The establishment and designation of any additional 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
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), thereof or of the
Trust as the Board of Trustees may determine from time to time, which rights,
powers and duties may be senior or subordinate to any existing Series or Class.
Such resolution may establish such Series or Classes directly in such resolution
or by reference to, or approval of, another document that sets forth such Series
or Classes, including without limitation, any registration statement of the
Trust, or as otherwise provided in such resolution. Each such resolution shall
be incorporated herein upon adoption, and any amendments or modifications to
such resolutions, are hereby incorporated herein as of the date of their
adoption. Any such resolution may be amended by a further resolution of a
majority of the Board of Trustees, and if Shareholder approval would be required
to make such an amendment to the language set forth in this Declaration of
Trust, such further resolution shall require the same Shareholder approval that
would be necessary to make such amendment to the language set forth in this
Declaration of Trust. Each such further resolution shall be incorporated herein
by reference upon adoption.
-10-
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 shall have the following rights, powers, and duties,
unless otherwise provided to the extent permitted by the DSTA, in the resolution
establishing and designating such Series or Class:
(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 that are not identifiable readily 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 agreed impliedly to such
limitation.
-11-
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, 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 has been set forth in the Certificate of Trust filed in
the Office of the Secretary of State of the State of Delaware pursuant to the
DSTA, and having given 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) are 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 properly should or may
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 reflected appropriately (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. In addition, the Board of Trustees may delegate
to a committee of the Board of Trustees or an officer of the Trust, the
authority to fix the amount and other terms of any dividend or distribution,
including without limitation, the power to fix the declaration date of the
dividend or distribution.
-12-
(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 the Trust shall be equal to each other
Share of the Trust (subject to the rights and preferences with respect to
separate Series or Classes of the Trust).
(f) Fractions. A fractional Share of the Trust shall carry
proportionately all the rights and obligations of a whole Share of the Trust,
including rights with respect to voting, receipt of dividends and distributions,
redemption of Shares, and dissolution of the Trust.
(g) Exchange Privilege. The Board of Trustees shall have the authority
to provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series in accordance with
such requirements and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series or Classes
(i) The Board of Trustees shall have the authority, without the
approval, vote, or consent of the Shareholders of any Series, unless otherwise
required by applicable law, to combine the assets and liabilities held with
respect to any two or more Series into assets and liabilities held with respect
to a single Series, provided that, upon completion of such combination of
Series, the interest of each Shareholder in the combined assets and liabilities
held with respect to the combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities held with respect to
the Series that were combined.
(ii) The Board of Trustees shall have the authority, without the
approval, vote, or consent of the Shareholders of any Series or Class, unless
otherwise required by applicable law, to combine, merge, or otherwise
consolidate the Shares of two or more Classes of Shares of a Series with and/or
into a single Class of Shares of such Series, with such designation, preference,
conversion, or other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption, and other
characteristics as the Trustees may determine; provided, however, that the
Trustees shall provide written notice to the affected Shareholders of any such
transaction.
-13-
(iii) The transactions in (i) and (ii) above may be effected
through share-for-share exchanges, transfers, or sales of assets, Shareholder
in-kind redemptions and purchases, exchange offers, or any other method approved
by the Trustees.
(i) Dissolution or Termination. Any particular Series shall be
dissolved upon the occurrence of the applicable dissolution events set forth in
Article VIII, Section 1 hereof. Upon dissolution of a particular Series, the
Trustees shall wind up the affairs of such Series in accordance with Article
VIII, Section 1 hereof, and thereafter rescind the establishment and designation
thereof. The Board of Trustees shall terminate any particular Class and rescind
the establishment and designation thereof: (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 is 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 rescission of the
establishment and designation of any particular Series, every Class of such
Series thereby shall be terminated and its establishment and designation
rescinded. Each resolution of the Board of Trustees pursuant to this Section
6(i) shall be incorporated herein by reference upon adoption.
Section 7. Indemnification of Shareholders. 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
or any Series. 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 or any Series, by reason of a claim or demand relating
exclusively to his, her or it being or having been a Shareholder 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) In accordance with Section 3801 of the DSTA, each Trustee shall
become a Trustee and be bound by this Declaration of Trust and the Bylaws when
such Person signs this Declaration of Trust as a Trustee and/or is duly elected
or appointed, qualified, and serving on the Board of Trustees in accordance with
the provisions hereof and the Bylaws, so long as such signatory or other Person
continues in office in accordance with the terms hereof.
-14-
(b) The Initial Trustee shall initially be the sole Trustee of the
Trust upon the appointment of new Trustees of the Trust by the Initial Trustee,
effective upon the resignation of the Initial Trustee, the number of Trustees
constituting the entire Board of Trustees shall be equal to the number of
Persons appointed by the Initial Trustee who sign this Declaration of Trust as
of the effective date of such appointment and, thereafter, 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.
(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 the Board of Trustees. Such resignation shall be
effective upon receipt, unless specified to be effective at some later time.
Section 2. Trustee Action by Written Consent Without a Meeting. 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.
-15-
(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 Bylaws, 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 the Board of Trustees, in its
sole discretion, shall deem proper to accomplish the purposes of this Trust.
Without limiting the foregoing, the Board of Trustees, subject to the requisite
vote for such actions as set forth in this Declaration of Trust and the Bylaws,
may: (i) adopt Bylaws not inconsistent with applicable law or this Declaration
of Trust; (ii) amend, restate, and repeal such Bylaws, subject to and in
accordance with the provisions of such Bylaws; (iii) remove Trustees and fill
vacancies on the Board of Trustees in accordance with this Declaration of Trust
and the Bylaws; (iv) elect and remove such officers and appoint and terminate
such agents as the Board of Trustees considers appropriate, in accordance with
this Declaration of Trust and the Bylaws; (v) establish and terminate one or
more committees of the Board of Trustees pursuant to the Bylaws; (vi) 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
subcustodians 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; (vii)
retain a transfer agent, dividend disbursing agent, shareholder servicing agent,
or administrative services agent, or any number thereof, or any other service
provider, as deemed appropriate; (viii) provide for the issuance and
distribution of Shares or other securities or financial instruments directly or
through one or more Principal Underwriters or otherwise; (ix) retain one or more
Investment Adviser(s); (x) reacquire and redeem Shares on behalf of the Trust or
any Series and transfer Shares pursuant to applicable law; (xi) 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; (xii)
declare and pay dividends and distributions to Shareholders from the Trust
Property in accordance with this Declaration of Trust and the Bylaws; (xiii)
establish, designate, and redesignate any Series or Class of the Trust or Class
of a Series, from time to time, in accordance with the provisions of Article
III, Section 6 hereof; (xiv) 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 or any Series 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; (xv) 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 or any Series 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; (xvi) 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 or any Series, and out of
the assets of the Trust or any Series 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 Board of Trustees
or any appropriate committee thereof, in the exercise of 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 or any Series, whether or not the Trust or
any Series 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 or any
Series; and (xvii) in general, delegate such authority as the Board of Trustees
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 or shareholder servicing agent, Principal Underwriter,
Investment Adviser, or other service provider.
-16-
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 Bylaws. 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 Bylaws, 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, serve as a director, trustee or officer of, 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, without such activities or ownership being deemed to be a violation
of a duty of loyalty. 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 Bylaws, 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. Trustees may not vote by proxy.
-17-
Section 4. Payment of Expenses by the Trust. Subject to the provisions
of Article III, Section 6 hereof, an officer of the Trust authorized by the
Board of Trustees 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 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, subcustodian,
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 that 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, including, without limitation, 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 or any Series of Shares from such
Shareholder pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be vested in the Trust, except that the Board of
Trustees shall have the power to cause legal title to any Trust Property to be
held by or in the name of any Person as nominee, on such terms as the Board of
Trustees may determine, in accordance with applicable law.
Section 7. Service Contracts
(a) Subject to this Declaration of Trust, the Bylaws, and the 1940 Act,
the Board of Trustees, at any time and from time to time, may 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 be delegated specifically to such party.
-18-
(b) The Board of Trustees also, at any time and from time to time, may
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 any
Series, 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 and performance of each such contract is permissible under the
1940 Act, and provided further that such Person is authorized to vote upon such
contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees, or
officers of the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Investment 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 be made hereafter, or that any
such Person, or any parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or
(ii) the fact that any Person with which any type of service
contract provided for in this Article IV, Section 7 may have been or may be made
hereafter 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 Bylaws, 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 Bylaws, 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, each Shareholder of record (as of the record date
established pursuant to Section 4 of this Article V) shall be entitled to one
vote for each full Share and a fractional vote for each fractional Share held by
such Shareholder. Shareholders shall not be entitled to cumulative voting in the
election of Trustees or on any other matter.
-19-
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 such Shareholders' meeting, except when a larger
quorum is required by this Declaration of Trust, the Bylaws, 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 Bylaws, 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 Bylaws 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 Shareholders' 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,
this Declaration of Trust, or the Bylaws 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 Shareholders' vote on such action;
or (ii) if no date is set by resolution of the Board, within thirty (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 thirty (30) days after the record date
for such action as determined by reference to Article V, Section 4(b) hereof.
-20-
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
sixty (60) days from the date set for the original meeting. For purposes of
determining the Shareholders entitled to vote on any action without a meeting,
the Board of Trustees may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Trustees, and which record date shall not be more than thirty (30) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to notice
of and to vote at a meeting of Shareholders shall be at the close of business on
the day next preceding the day on which notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the meeting
is held; and/or
(ii) the record date for determining Shareholders entitled to vote
on any action by consent in writing without a meeting of Shareholders (A) 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 (B) 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, sale of all or substantially all of its assets, or
any other transaction, in each case that is governed by Article VIII of this
Declaration of Trust), the Board of Trustees may:
(i) from time to time, fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall not be more than sixty (60) days before the
date for the payment of such dividend and/or such other distribution;
-21-
(ii) adopt standing resolutions fixing record dates and related
payment dates at periodic intervals of any duration for the payment of such
dividend and/or such other distribution; and/or
(iii) delegate to an 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 Bylaws 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 and any applicable
requirement or limitation of the 1940 Act, 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, as applicable,
which shall yield to the Trust or the applicable 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 such Shares shall be
offered for sale.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees,
subject to the 1940 Act, may prescribe and shall set forth in the Bylaws, this
Declaration of Trust, or in a resolution of the Board of Trustees such bases and
time for determining the net asset value per Share of the Trust, or any Series
or Class thereof, or net income attributable to the Shares of the Trust, or any
Series or Class thereof, or the declaration and payment of dividends and
distributions on the Shares of the Trust, or any Series or Class thereof, as the
Board of Trustees 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. Any resolution may set forth such
information directly in such resolution or by reference to, or approval of,
another document that sets forth such information, including, without
limitation, any registration statement of the Trust, or as otherwise provided in
such resolution. The Board of Trustees may delegate the power or duty to
determine net asset value per Share of the Trust or any Series or Class thereof
or the net income attributable to the Shares of the Trust or any Series or Class
thereof to one or more Trustees or officers of the Trust or to a custodian,
depositary or other agent appointed for such purpose.
-22-
(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 or any Series made pursuant to
Article VIII, Section 1 hereof; provided, however, that
(i) if the Shares of the Trust are divided into Series thereof, no
Share of a particular Series shall have any priority or preference over any
other Share of the same Series with respect to dividends or distributions paid
in the ordinary course of business or distributions upon dissolution of the
Trust or of such Series made pursuant to Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes thereof,
no Share of a particular Class shall have any priority or preference over any
other Share of the same Class with respect to dividends or distributions paid in
the ordinary course of business or distributions upon dissolution of the Trust
made pursuant to Article VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes thereof,
no Share of a particular Class of such Series shall have any priority or
preference over any other Share of the same Class of such Series with respect to
dividends or distributions paid in the ordinary course of business or
distributions upon dissolution of such Series made pursuant to Article VIII,
Section 1 hereof.
All dividends and distributions shall be made ratably among all Shareholders of
the Trust, a particular Class of the Trust, a particular Series, or a particular
Class of a Series from the Trust Property held with respect to the Trust, such
Series, or such Class, respectively, according to the number of Shares of the
Trust, such Series, or such Class held of record by such Shareholders on the
record date for any dividend or distribution; provided, however, that
(i) 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
(ii) 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.
-23-
(d) Before payment of any dividend or distribution, there may be set
aside out of any funds of the Trust, or the applicable Series thereof, available
for dividends or distributions such sum or sums as the Board of Trustees, from
time to time, in its absolute discretion, may think proper as a reserve fund to
meet contingencies, or for equalizing dividends or distributions, 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, or the applicable Series thereof, 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, or applicable Series
thereof, purchase such Shares and/or in accordance with such other procedures
for redemption as the Board of Trustees may authorize, from time to time. 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, or the applicable Series thereof, shall pay for such
Shares the net asset value thereof (excluding any applicable redemption fee or
sales load) in accordance with this Declaration of Trust, the Bylaws, the 1940
Act, and other applicable law. Payments for Shares so redeemed by the Trust, or
the applicable Series thereof, shall be made in cash, except payment for such
Shares, at the option of the Board of Trustees or such officer or officers as it
may duly authorize in its complete discretion, may 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 legally cannot 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, or the applicable Series thereof, for such
redemption of Shares shall be made by the Trust. or the applicable Series
thereof, to the Shareholder within seven (7) days after the date on which the
redemption request is received in proper form and/or such other procedures
authorized by the Board of Trustees are complied with; provided, however, that
if payment shall be made other than exclusively in cash, any securities to be
delivered as part of such payment shall be delivered as promptly as any
necessary transfers of such securities on the books of the several corporations
whose securities are to be delivered practicably can be made, which may not
occur necessarily within such seven- (7) day period. In no case shall the Trust,
or the applicable Series thereof, 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.
-24-
(d) The obligations of the Trust, or the applicable Series thereof, set
forth in this Section 2 are subject to the provision that such obligations may
be suspended or postponed by the Board of Trustees (i) during any time the New
York Stock Exchange (the "Exchange") is closed for other than weekends or
holidays; (ii) if permitted by the rules of the Commission, during periods when
trading on the Exchange is restricted; or (iii) during any National Financial
Emergency. The Board of Trustees, in its discretion, may declare that the
suspension relating to a National Financial Emergency shall terminate, as the
case may be, on the first business day on which the Exchange shall have reopened
or the period specified above shall have expired (as to which, in the absence of
an official ruling by the Commission, the determination of the Board of Trustees
shall be conclusive).
(e) The right of any Shareholder of the Trust, or any Series or Class
thereof, to receive dividends or other distributions on Shares redeemed and all
other rights of such Shareholder with respect to the Shares so redeemed, except
the right of such Shareholder to receive payment for such Shares, shall cease at
the time the purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. At the option of the
Board of Trustees, the Trust, or the applicable Series thereof, from time to
time, without the vote of the Shareholders but subject to the 1940 Act, may
redeem Shares or authorize the closing of any Shareholder account, subject to
such conditions as may be established, from time to time, by the Board of
Trustees.
Section 4. Transfer of Shares. Shares shall be transferable in
accordance with the provisions of this Declaration of Trust and the Bylaws.
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,
arbitral, 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.
-25-
(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
liable personally 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 be justified
fully and completely in the performance of his or her duties, 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
reasonably believed by such Trustee, officer or employee of the Trust to be
within such Person's professional or expert competence, regardless of whether
such counsel or expert may also be a Trustee. 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 Bylaws, 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 that 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.
-26-
Section 2. Indemnification
(a) Indemnification by Trust. The Trust, or the applicable Series
thereof, shall indemnify, out of Trust Property, to the fullest extent permitted
under applicable law, any Person who was or is a party or is threatened to be
made a party to any Proceeding by reason of the fact that such Person is or was
an Agent of the Trust, or the applicable Series thereof, 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
applicable Series thereof, 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, or the applicable Series thereof, 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 (A) the vote of a
majority of a quorum of the Trustees who are not (x) Interested Persons of the
Trust, (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 (B) 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, or the applicable Series thereof,
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: the Agent shall provide
appropriate security for his undertaking; (ii) the Trust, or the applicable
Series thereof, 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.
-27-
(e) Other Contractual Rights. Nothing contained in this Article shall
affect any right to indemnification to which Persons other than Trustees and
officers of the Trust or any subsidiary thereof may be entitled by contract or
otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not apply
to any Proceeding against any trustee, investment manager, or other fiduciary of
an employee benefit plan in that Person's capacity as such, even though that
Person may also be an Agent of the Trust as defined in Section 1 of this
Article. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or other fiduciary
may be entitled by contract or otherwise which shall be enforceable to the
extent permitted by applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by applicable
law, the Board of Trustees shall have the authority to purchase with Trust
Property, insurance for liability and for all Expenses reasonably incurred or
paid or expected to be paid by an Agent in connection with any Proceeding in
which such Agent becomes involved by virtue of such Agent's actions, or
omissions to act, in its capacity or former capacity with the Trust, whether or
not the Trust, or the applicable Series thereof, 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 may bring a derivative action
on behalf of the Trust or any Series or Class thereof 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 or the Series or Class
for the expense of any such advisors in the event that the Board of Trustees
determines not to bring such action.
-28-
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 in defined in the DSTA).
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 (in accordance with Section 3808 of the DSTA) shall pay or
make reasonable provision to pay all claims and obligations of the Trust and/or
each Series (or the particular Series, as the case may be), including all
contingent, conditional, or unmatured claims and obligations known to the Trust
and/or each Series (or the particular Series, as the case may be), and all
claims and obligations that are known to the Trust and/or each Series (or the
particular Series, as the case may be) 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 (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 (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 (or the particular Series, as the case may be) shall be distributed
to the Shareholders of the Trust and/or each Series (or the particular Series,
as the case may be) ratably according to the number of Shares of the Trust
and/or such Series (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 completion
of the winding up of the Trust in accordance with Section 3808 of the DSTA, any
one 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.
-29-
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 effect any amendment to this
Declaration of Trust or the Bylaws or effect the adoption of a new governing
instrument without a Shareholder vote, unless required by the 1940 Act or any
other provision of this Declaration of Trust or the Bylaws, 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, or other applicable law, 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 or any Series may be transferred and to provide
for the conversion of Shares of the Trust or any Series into beneficial
interests in such separate statutory trust or trusts (or series thereof). In
order to effect any such merger or consolidation, if the Trust is the surviving
or resulting statutory trust, any one Trustee shall execute and cause to be
filed a certificate of merger or consolidation in accordance with Section 3815
of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of the
Trustees, may cause (i) the Trust to convert to an "other business entity" (as
defined in Section 3801 of the DSTA) formed or organized under the laws of the
State of Delaware, as permitted pursuant to Section 3821 of the DSTA; (ii) the
Shares of the Trust or any Series to be converted into beneficial interests in
another statutory trust (or series thereof) created pursuant to this Section 2
of this Article VIII; or (iii) the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by law. Any such statutory
conversion, Share conversion, or Share exchange shall not require the vote of
the Shareholders unless such vote is required by the 1940 Act; provided,
however, that the Board of Trustees shall provide at least thirty (30) days'
prior written notice to the Shareholders of the Trust of any conversion of
Shares of the Trust pursuant to Subsections (b)(i) or (b)(ii) of this Section 2
or exchange of Shares of the Trust pursuant to Subsection (b)(iii) of this
Section 2, and at least thirty (30) days' prior written notice to the
Shareholders of a particular Series of any conversion of Shares of such Series
pursuant to Subsection (b)(ii) of this Section 2 or exchange of Shares of such
Series pursuant to Subsection (b)(iii) of this Section 2. In all respects not
governed by the DSTA, the 1940 Act, or other applicable law, 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 or any Series may be transferred and to provide for the conversion of
Shares of the Trust or any Series into beneficial interests in such separate
statutory trust or trusts (or series thereof).
-30-
(c) Sale of Assets. The Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust or any Series to sell, convey, and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets") or all or
substantially all of the assets associated with any one or more Series ("sale of
such Series' assets") to another trust, statutory trust, partnership, limited
partnership, limited liability company, corporation, or other association
organized under the laws of any state, or to one or more separate series
thereof, or to the Trust to be held as assets associated with one or more other
Series of the Trust, in exchange for cash, shares, or other securities
(including, without limitation, in the case of a transfer to another Series of
the Trust, Shares of such other Series) with such sale, conveyance, and transfer
either (i) being made subject to or with the assumption by the transferee of the
liabilities associated with the Trust or the liabilities associated with the
Series, the assets of which are so transferred, as applicable, or (ii) not being
made subject to or not with the assumption of such liabilities. Any such sale,
conveyance, and transfer shall not require the vote of the Shareholders unless
such vote is required by the 1940 Act; provided, however, that the Board of
Trustees shall provide at least thirty (30) days' prior written notice to the
Shareholders of the Trust of any such sale of Trust assets, and at least thirty
(30) days' prior written notice to the Shareholders of a particular Series of
any sale of such Series' assets. Following such sale of Trust assets, if all or
substantially all of the assets of the Trust have been so sold, conveyed, and
transferred, the Trust shall be dissolved. Following a sale of such Series'
assets, if all or substantially all of the assets of such Series have been so
sold, conveyed, and transferred, such Series and the Classes thereof 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 or any Series may be transferred and to provide for the
conversion of Shares of the Trust or any Series into beneficial interests in
such separate statutory trust or trusts (or series thereof).
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 the Trust or 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 appraisal rights or to any other
relief as a dissenting Shareholder in respect of any proposal or action
involving the Trust or any Series or any Class thereof.
-31-
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed by not
less than a majority of the Board of Trustees and, to the extent required by
this Declaration of Trust or the 1940 Act, by approval of such amendment by the
Shareholders in accordance with Article III, Section 6 hereof and Article V
hereof. Any such restatement hereof and/or amendment hereto shall be effective
immediately upon execution and, if applicable, Shareholder 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 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 to 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 Declaration
of Trust may be executed in any number of counterparts, each of which shall be
deemed an original. To the extent permitted by the 1940 Act, (a) any document,
consent, instrument or notice referenced in or contemplated by this Declaration
of Trust or the Bylaws that is to be executed by one or more Trustees may be
executed by means of original, facsimile or electronic signature and (b) any
document, consent, instrument or notice referenced in or contemplated by this
Declaration of Trust or the Bylaws that is to be delivered by one or more
Trustees may be delivered by facsimile or electronic means (including e-mail),
unless, in the case of either clause (a) or (b), otherwise expressly provided
herein or in the Bylaws or determined by the Board of Trustees. The terms
"include," "includes" and "including" and any comparable terms shall be deemed
to mean "including, without limitation."
-32-
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 Bylaws
or in the DSTA (other than DSTA Section 3809), or as to which an ambiguity
exists, shall be governed by the DGCL, 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 Bylaws (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 of 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 Bylaws. The Trust shall be a Delaware statutory
trust pursuant to the DSTA, and without limiting the provisions hereof, the
Trust may exercise all powers that 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.
-33-
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 the Trustees and each Shareholder, respectively. 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 except as specifically provided for U.S. federal income tax purposes
pursuant to Article III, Section 5(a) and Section 6 herein or by resolution of
the Board of Trustees.
Section 5. Use of the Name "Allegiant Advantage" The Board of Trustees
expressly agrees and acknowledges that the name "Allegiant Advantage" is the
sole property of Allegiant Asset Management Company ("Adviser"). The Adviser has
granted to the Trust a non-exclusive license to use such name 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 the Adviser if the Trust ceases to use the Adviser or one of its
Affiliates as Investment Adviser or to use other Affiliates or successors of the
Adviser for such purposes. In such event, the nonexclusive license may be
revoked by the Adviser and the Trust shall cease using the name "Allegiant
Advantage," or any name misleadingly implying a continuing relationship between
the Trust and the Adviser or any of its Affiliates, as part of its name unless
otherwise consented to by Allegiant or any successor to its interests in such
names.
The Board of Trustees further understands and agrees that so long as the Adviser
and/or any future advisory Affiliate of the Adviser 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 the Adviser or its
Affiliates shall have the right permanently to adopt and to use the name
"Allegiant Advantage" in their names and in the names of any series or Class of
shares of such funds.
-34-
IN WITNESS WHEREOF, the Initial Trustee of Allegiant Advantage Funds named below
does hereby make and enter into this Agreement and Declaration of Trust as of
the date first written above.
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Initial Trustee
-35-
IN WITNESS WHEREOF, the Trustees of Allegiant Advantage Funds named below do
hereby agree to be bound by the terms of the Agreement and Declaration of Trust
of Allegiant Advantage Funds as of the date of their appointment as Trustees.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxx
-------------------------------------------- --------------------------------------------
Xxxxxxx X. Xxxxx, Trustee Xxxxxx Xxxxxxx, Trustee
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
Xxxx X. Xxxxxxx, Trustee Xxxxxxx X. Xxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx X. XxXxxxx
-------------------------------------------- --------------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee Xxxx X. XxXxxxx, Trustee
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx Xxxxx
-------------------------------------------- --------------------------------------------
Xxxxxx X. Xxxxx, Trustee Xxxxxxxx Xxxxx, Trustee
-36-
