Registration Statement by an Open-End Investment Company (Business Combination) — Form N-14 Filing Table of Contents
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1: N-14 Registration Statement by an Open-End Investment HTML 239K
Company (Business Combination)
14: COVER ¶ Comment-Response or Cover Letter to the SEC HTML 3K
2: EX-99.1 Amendment HTML 10K
8: EX-99.11 Miscellaneous Exhibit HTML 10K
9: EX-99.13 Servicing Schedule HTML 10K
10: EX-99.14 Consent HTML 7K
11: EX-99.16 Power of Attorney HTML 41K
12: EX-99.17 Code of Ethics HTML 35K
13: EX-99.17 Code of Ethics HTML 15K
3: EX-99.2 Bylaws HTML 59K
4: EX-99.6 Miscellaneous Exhibit HTML 10K
5: EX-99.7 Miscellaneous Exhibit HTML 8K
6: EX-99.9 Custody HTML 218K
7: EX-99.9 Securities Lending HTML 155K
EX-99.2.a
Approved as of December 17, 1998
Amended and Restated as of November 16, 2006
AMENDED AND RESTATED BY-LAWS
OF
DELAWARE GROUP ADVISER FUNDS
A Delaware Statutory Trust
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal executive office of Delaware
Group Adviser Funds (the "Trust") shall be One Commerce Square, Philadelphia,
Pennsylvania, 19103. The board of trustees (the "Board of Trustees") may, from
time to time, change the location of the principal executive office of the Trust
to any place within or outside the State of Delaware.
Section 2. OTHER OFFICES. The Board of Trustees may at any time establish
branch or subordinate offices at any place or places where the Trust intends to
do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Trustees. In the absence of any such designation by the Board of Trustees,
shareholders' meetings shall be held at the principal executive office of the
Trust. For purposes of these Amended and Restated By-Laws (the "By-Laws"), the
term "shareholder" shall mean a record owner of shares of the Trust.
Section 2. CALL OF MEETING. A meeting of the shareholders may be called at
any time by the Board of Trustees, the Chairperson (as defined under Section 3
of Article III herein) or by the President (as defined under Section 1 of
Article V herein). If the Trust is required under the Investment Company Act of
1940, as amended (the "1940 Act"), to hold a shareholders' meeting to elect
trustees, the meeting shall be deemed an "annual meeting" for that year for
purposes of the 1940 Act.
Section 3. NOTICE OF SHAREHOLDERS' MEETING. All notices of meetings of
shareholders shall be sent or otherwise given, in accordance with Section 4 of
this Article, not less than seven (7) nor more than one-hundred twenty (120)
days before the date of the meeting. The notice shall specify (i) the place,
date and hour of the meeting, and (ii) the general nature of the business to be
transacted. The notice of any meeting at which trustees are to be elected also
shall include the name of any nominee or nominees whom at the time of the notice
are intended to be presented for election. Except with respect to adjournments
as provided herein, no business shall be transacted at such meeting other than
that specified in the notice.
Section 4. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of shareholders shall be given either personally or by first-class mail,
courier or telegraphic, facsimile, electronic mail or other written
communication, charges prepaid, addressed to the shareholder at the address of
that shareholder appearing on the books of the Trust or its transfer agent or
given by the shareholder to the Trust for the purpose of notice. If no such
address appears on the Trust's books or is given, notice shall be deemed to have
been given if sent to that shareholder by first-class mail, courier, or
telegraphic, facsimile, electronic mail or other written communication to the
Trust's principal executive office. Notice shall be deemed to have been given at
the time when delivered personally or deposited in the mail, with a courier or
sent by telegram, facsimile, electronic mail or other means of written
communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the Trust is returned to the Trust marked to indicate
that the notice to the shareholder cannot be delivered at that address, all
future notices or reports shall be deemed to have been duly given without
further mailing, or substantial equivalent thereof, if such notices shall be
available to the shareholder on written demand of the shareholder at the
principal executive office of the Trust for a period of one year from the date
of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the secretary, assistant secretary or
any transfer agent of the Trust giving the notice and shall be filed and
maintained in the records of the Trust. Such affidavit shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
Section 5. ADJOURNED MEETING; NOTICE. Any shareholders' meeting, whether or
not a quorum is present, may be adjourned from time to time (and at any time
during the course of the meeting) by a majority of the votes cast by those
shareholders present in person or by proxy, or by the chairperson of the
meeting. Any adjournment may be with respect to one or more proposals, but not
necessarily all proposals, to be voted or acted upon at such meeting and any
adjournment will not delay or otherwise affect the effectiveness and validity of
a vote or other action taken at a shareholders' meeting prior to adjournment.
When any shareholders' meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting at which the adjournment is
taken, unless a new record date of the adjourned meeting is fixed or unless the
adjournment is for more than one hundred eighty (180) days from the record date
set for the original meeting, in which case the Board of Trustees shall set a
new record date. If notice of any such adjourned meeting is required pursuant to
the preceding sentence, it shall be given to each shareholder of record entitled
to vote at the adjourned meeting in accordance with the provisions of Sections 3
and 4 of this Article. At any adjourned meeting, the Trust may transact any
business that might have been transacted at the original meeting.
Section 6. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of the
Declaration of Trust, as in effect at such time. The shareholders' vote may be
by voice vote or by ballot; provided, however, that any election for trustees
must be by ballot if demanded by any shareholder before the voting has begun.
Abstentions and broker non-votes will be included for purposes of
determining whether a quorum is present at a shareholders' meeting. Abstentions
and broker non-votes will be treated as votes present at a shareholders'
meeting, but will not be treated as votes cast. Abstentions and broker
non-votes, therefore, will have no effect on proposals which require a plurality
or majority of votes cast for approval, but will have the same effect as a vote
"against" on proposals requiring a majority of outstanding voting securities for
approval.
Unless otherwise determined by the Board of Trustees at the time it
approves an action to be submitted to the shareholders for approval, shareholder
approval of an action shall remain in effect until such time as the approved
action is implemented or the shareholders vote to the contrary. Notwithstanding
the foregoing, an agreement of merger or consolidation may be terminated or
amended notwithstanding prior approval if so authorized by such agreement of
merger or consolidation pursuant to Section 3815 of the Delaware Statutory Trust
Act ("DSTA").
Section 7. WRITTEN ACTION. Any action that might be taken at a meeting of
the shareholders may be taken without a meeting in accordance with the
provisions of the Trust's Agreement and Declaration of Trust, as may be amended
from time to time.
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Section 8. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS. The
transactions of a meeting of shareholders, however called and noticed and
wherever held, shall be valid as though transacted at a meeting duly held after
regular call and notice if a quorum be present either in person or by proxy.
Attendance by a person at a meeting shall also constitute a waiver of notice
with respect to that person of that meeting, except when the person objects at
the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened and except that such attendance is
not a waiver of any right to object to the consideration of matters not included
in the notice of the meeting if that objection is expressly made at the
beginning of the meeting. Whenever notice of a meeting is required to be given
to a shareholder under the Declaration of Trust or these By-Laws, a written
waiver thereof, executed before or after the meeting by such shareholder or his
or her attorney thereunto authorized and filed with the records of the meeting,
shall be deemed equivalent to such notice.
Section 9. PROXIES. Every shareholder entitled to vote for trustees or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the shareholder and filed
with the secretary of the Trust. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, electronic transmission or otherwise) by
the shareholder or the shareholder's attorney-in-fact. A validly executed proxy
which does not state that it is irrevocable shall continue in full force and
effect unless (i) revoked by the shareholder executing it by a written notice
delivered to the Trust prior to the exercise of the proxy or by the
shareholder's execution of a subsequent proxy or attendance and vote in person
at the meeting; or (ii) written notice of the death or incapacity of the
shareholder is received by the Trust before the proxy's vote is counted;
provided, however, that no proxy shall be valid after the expiration of eleven
(11) months from the date of the proxy unless otherwise provided in the proxy.
The revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of the General Corporation Law of the State of
Delaware.
With respect to any shareholders' meeting, the Trust may accept proxies by
electronic transmission (as defined in the DSTA) or telephonic, computerized,
telecommunications or any other reasonable alternative to the execution of a
written instrument authorizing the proxy to act, provided the shareholder's
authorization is received within eleven (11) months before the meeting. A proxy
with respect to shares held in the name of two or more Persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest with the challenger.
Section 10. INSPECTORS OF ELECTION. Before any meeting of shareholders, the
Board of Trustees or the appropriate officers of the Trust may appoint any
person other than nominees for office to act as inspector of election at the
meeting or its adjournment. If no inspector of election is so appointed, the
chairperson of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint an inspector of election at the meeting. If
any person appointed as inspector fails to appear or fails or refuses to act,
the chairperson of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill the vacancy.
The inspector shall:
(a) determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) receive votes, ballots or consents;
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(c) hear and determine all challenges and questions in any way arising in
connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or vote
with fairness to all shareholders.
ARTICLE III
TRUSTEES
Section 1. POWERS. Subject to the applicable provisions of the Declaration
of Trust and these By-Laws relating to action requiring shareholder approval,
the business and affairs of the Trust shall be managed and all powers shall be
exercised by or under the direction of the Board of Trustees.
Section 2. NUMBER OF TRUSTEES. The number of trustees constituting the
Board of Trustees shall be determined as set forth in the Declaration of Trust.
Section 3. CHAIRPERSON. The Board of Trustees may elect a chairperson for
the purpose of presiding at meetings of the Board of Trustees (the
"Chairperson"). The Chairperson shall exercise and perform such other powers and
duties as may be from time to time assigned to the Chairperson by the Board of
Trustees or prescribed by the By-Laws. The Chairperson may delegate his or her
powers and duties to the trustees or officers of the Trust that he or she deems
appropriate, provided that such delegation is consistent with applicable legal
and regulatory requirements.
Section 4. VACANCIES. Vacancies in the Board of Trustees may be filled by a
majority of the remaining trustees, though less than a quorum, or by a sole
remaining trustee, unless the Board of Trustees calls a meeting of shareholders
for the purpose of filling such vacancies. Notwithstanding the above, whenever
and for so long as the Trust is a participant in or otherwise has in effect a
plan under which the Trust may be deemed to bear expenses of distributing its
shares as that practice is described in Rule 12b-1 under the 1940 Act, then the
selection and nomination of the trustees who are not "interested persons" of the
Trust, as that term is defined in the 1940 Act (the "Independent Trustees")
shall be, and is, committed to the discretion of the Independent Trustees.
In the event that all trustee offices become vacant, an authorized officer
of Delaware Management Company, a series of Delaware Management Business Trust,
or any successor entity thereto or affiliate thereof serving as investment
adviser to the Trust ("DMC"), on behalf DMC, shall serve as the sole remaining
trustee effective upon the vacancy in the office of the last trustee. In such
case, such officer of DMC, as the sole remaining trustee, shall, as soon as
practicable, fill all of the vacancies on the Board of Trustees; provided,
however, that, upon filling such vacancies, the percentage of trustees who are
Independent Trustees of the Trust shall be no less than that required by the
1940 Act. Thereupon, such officer of DMC shall resign as trustee and a meeting
of the shareholders shall be called, as required by the 1940 Act, for the
election of trustees.
Whenever a vacancy in the Board of Trustees shall occur (by reason of
death, resignation, removal, an increase in the authorized number of trustees or
other cause), until such vacancy is filled as provided herein
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or the number of authorized trustees constituting the Board of Trustees is
decreased pursuant to Article IV, Section 1 of the Declaration of Trust, the
trustee(s) then in office, regardless of the number and even if less than a
quorum, shall have all the powers granted to the Board of Trustees and shall
discharge all the duties imposed upon the Board of Trustees by the Declaration
of Trust and these By-Laws as though such number constitutes the entire Board of
Trustees.
Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. All meetings of the
Board of Trustees may be held at any place within or outside the State of
Delaware that has been designated from time to time by resolution of the Board
of Trustees. In the absence of such a designation, regular meetings shall be
held at the principal executive office of the Trust. Any meeting, regular or
special, may be held by conference telephone or similar communication equipment,
so long as all trustees participating in the meeting can hear one another, and
all such trustees shall be deemed to be present in person at the meeting.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of Trustees
shall be held without call at such time as shall from time to time be fixed by
the Board of Trustees. Such regular meetings may be held without notice.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Trustees for
any purpose or purposes may be called at any time by the Chairperson, the
President (as defined under Section 1 of Article V herein), any vice president,
the secretary or any two (2) trustees.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each trustee or sent by first-class mail, courier
or telegram, charges prepaid, or by facsimile or electronic mail, addressed to
each trustee at that trustee's address as it is shown on the records of the
Trust. In case the notice is mailed, it shall be deposited in the United States
mail at least seven (7) days before the time of the holding of the meeting. In
case the notice is delivered personally, by telephone, by courier, to the
telegraph company, or by express mail, facsimile, electronic mail or similar
service, it shall be delivered at least forty-eight (48) hours before the time
of the holding of the meeting. Any oral notice given personally or by telephone
may be communicated either to the trustee or to a person at the office of the
trustee who the person giving the notice has reason to believe will promptly
communicate it to the trustee. The notice need not specify the purpose of the
meeting or, if the meeting is to be held at the principal executive office of
the Trust, the place of the meeting.
Section 8. QUORUM. A majority of the authorized number of trustees shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article. Every act or decision done or made by a
majority of the trustees present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Trustees, subject to the
provisions of the Declaration of Trust. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
trustees if any action taken is approved by at least a majority of the required
quorum for that meeting.
Section 9. WAIVER OF NOTICE. Notice of any meeting need not be given to any
trustee who either before or after the meeting signs a written waiver of notice,
a consent to holding the meeting, or an approval of the minutes. The waiver of
notice or consent need not specify the purpose of the meeting. All such waivers,
consents, and approvals shall be filed with the records of the Trust or made a
part of the minutes of the meeting. Notice of a meeting shall also be deemed
given to any trustee who attends the meeting without protesting before or at its
commencement about the lack of notice to that trustee.
Section 10. ACTION BY WRITTEN CONSENT IN LIEU OF MEETINGS. Except as
required by law, including the 1940 Act and the rules and regulations
thereunder, on any matter required or permitted to be voted on by the Board of
Trustees or a committee of the Board of Trustees, the Board of Trustees or
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committee thereof may take such action without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the Trustees having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all Trustees entitled to vote thereon were present and
voted.
Section 11. ADJOURNMENT. A majority of the trustees present, whether or not
constituting a quorum, may adjourn any matter at any meeting to another time and
place.
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of holding
an adjourned meeting need not be given unless the meeting is adjourned for more
than seven (7) days, in which case notice of the time and place shall be given
before the time of the adjourned meeting to the trustees who were present at the
time of the adjournment.
Section 13. FEES AND COMPENSATION OF TRUSTEES. Trustees and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Board of Trustees. This Section 13 shall not be construed to preclude any
trustee from serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those services.
Section 14. TRUSTEE EMERITUS. Upon retirement of a trustee, the Board of
Trustees may elect him or her to the position of Trustee Emeritus. A Trustee
Emeritus shall serve for one year and may be reelected by the Board of Trustees
from year to year thereafter. Any person serving as a Trustee Emeritus shall not
vote at meetings of trustees and shall not be held responsible for actions of
the Board of Trustees but shall receive fees paid to trustees for serving as
such.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF TRUSTEES. The Board of Trustees may, by resolution
adopted by a majority of the authorized number of trustees, designate one or
more committees, each consisting of two (2) or more trustees, to serve at the
pleasure of the Board of Trustees. The Board of Trustees may designate one or
more trustees as alternate members of any committee who may replace any absent
member at any meeting of the committee. Any committee to the extent provided in
the resolution of the Board of Trustees, shall have the authority of the Board
of Trustees, except with respect to:
(a) the approval of any action which under the Declaration of Trust or
applicable law also requires shareholders' approval or requires approval by a
majority of the entire Board of Trustees or certain members of said Board of
Trustees;
(b) the filling of vacancies on the Board of Trustees or in any committee;
(c) the fixing of compensation of the trustees for serving on the Board of
Trustees or on any committee;
(d) the amendment or repeal of the Declaration of Trust or of the By-Laws
or the adoption of new By-Laws;
(e) the amendment or repeal of any resolution of the Board of Trustees
which by its express terms is not so amendable or repealable; or
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(f) the appointment of any other committees of the Board of Trustees or the
members of these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of any
committee shall be governed by and held and taken in accordance with the
provisions of Article III of these By-Laws, with such changes in the context
thereof as are necessary to substitute the committee and its members for the
Board of Trustees and its members, except that the time of regular meetings of
any committee may be determined either by resolution of the Board of Trustees or
by resolution of the committee. Special meetings of any committee may also be
called by resolution of the Board of Trustees, and notice of special meetings of
any committee shall also be given to all alternate members who shall have the
right to attend all meetings of the committee. The Board of Trustees may adopt
rules for the government of any committee not inconsistent with the provisions
of these By-Laws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Trust shall be a president and
chief executive officer (the "President"), a secretary, and a treasurer. The
Trust may also have, at the discretion of the Board of Trustees, one or more
vice presidents, one or more assistant vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article. Any
number of offices may be held by the same person, except the offices of
President and vice president.
Section 2. ELECTION OF OFFICERS. The officers of the Trust designated in
Section 1 of this Article shall be chosen by the Board of Trustees, and each
shall serve at the pleasure of the Board of Trustees, subject to the rights, if
any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board of Trustees may appoint and may
empower the Chairperson and/or the President to appoint such other officers as
the business of the Trust may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in these
By-Laws or as the Board of Trustees may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Trustees at any regular or special
meeting of the Board of Trustees, or by an officer upon whom such power of
removal may be conferred by the Board of Trustees.
Any officer may resign at any time by giving written notice to the Trust.
Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice; and unless otherwise specified in
that notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of the
Trust under any contract to which the officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification or other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office.
Section 6. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Trustees to the Chairperson, the President shall be the
chief executive officer of the Trust and shall, subject to the control of the
Board of Trustees, have general supervision, direction and control of the
business and the
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officers of the Trust. The President shall have the general powers and duties of
management usually vested in the office of president of a corporation and shall
have such other powers and duties as may be prescribed by the Board of Trustees
or these By-Laws.
Section 7. VICE PRESIDENTS. In the absence or disability of the President,
vice presidents, in the order as determined by the Board of Trustees, shall
succeed to all of the duties of the President and when so acting shall have all
powers of and be subject to all the restrictions upon the President until the
President's return, or until such disability shall be removed or until a new
President shall have been elected. The vice presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Trustees, the Chairperson, the President or
these By-Laws.
Section 8. SECRETARY. The secretary shall keep or cause to be kept at the
principal executive office of the Trust, or such other place as the Board of
Trustees may direct, a book of minutes of all meetings and actions of trustees,
committees of trustees and shareholders, which shall record the time and place
of such meetings, designation of whether such a meeting is regular or special,
the names of those present at trustees' meetings or committee meetings, and a
summary of the proceedings.
The secretary shall cause to be kept at the principal executive office of
the Trust, or at the office of the Trust's transfer agent or registrar, a share
register or a duplicate share register showing the names of all shareholders and
their addresses, the number, series and classes of shares held by each, the
number and date of certificates issued for the same and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give or cause to be given notice of all meetings of the
shareholders and of the Board of Trustees required by these By-Laws or by
applicable law to be given and shall have such other powers and perform such
other duties as may be prescribed by the Board of Trustees or by these By-Laws.
Section 9. TREASURER. The treasurer shall keep and maintain or cause to be
kept and maintained adequate and correct books and records of accounts of the
properties and business transactions of the Trust, including accounts of its
assets, liabilities, receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all reasonable times be open
to inspection by any trustee.
The treasurer shall deposit all monies and other valuables in the name and
to the credit of the Trust with such depositories as may be designated by the
Board of Trustees. He or she shall disburse the funds of the Trust as may be
ordered by the Board of Trustees, shall render to the President and trustees,
whenever they request it, an account of all of his or her transactions as
treasurer and of the financial condition of the Trust and shall have other
powers and perform such other duties as may be prescribed by the Board of
Trustees or these By-Laws.
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ARTICLE VI
INDEMNIFICATION OF TRUSTEES, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "agent" means any person who is or was a trustee, officer, employee or
other agent of this Trust or is or was serving at the request of the Trust as a
trustee, director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise or was a
trustee, director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor of another enterprise at the request of such
predecessor entity; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative;
and "expenses" includes without limitation attorneys' fees and any expenses of
establishing a right to indemnification under this Article.
Section 2. ACTIONS OTHER THAN BY TRUST. The Trust shall indemnify any
person who was or is a party or is threatened to be made a party to any
proceeding (other than an action by or in the right of the Trust) by reason of
the fact that such person is or was an agent of the Trust, against expenses,
judgments, penalties, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner that such person reasonably believed to be in the
best interests of the Trust and in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. For
purposes of this Section 2 and Section 3 below, (a) the termination of any
proceeding by judgment, order, or settlement shall not of itself create a
presumption that the person did not act in good faith or in a manner which the
person reasonably believed to be in the best interests of the Trust or that the
person had reasonable cause to believe that the person's conduct was unlawful,
and (b) the termination of any proceeding by conviction, or a plea of nolo
contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the person did not act in good
faith, or in a manner which the person reasonably believed to be in the best
interests of the Trust or that the person had reasonable cause to believe that
the person's conduct was unlawful.
Section 3. ACTIONS BY TRUST. The Trust shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that the person is or was an agent of the Trust,
against expenses actually and reasonably incurred by that person in connection
with the defense or settlement of that action if that person acted in good faith
and in a manner that person reasonably believed to be in the best interests of
the Trust.
Section 4. 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 willful misfeasance, bad faith, gross
negligence, or the reckless disregard of the duties involved in the conduct of
the agent's office with the Trust.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a) 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, unless and only to the extent that the court in which that action was
brought shall determine upon application that in view of all the circumstances
of the case, that person was not liable by reason of the disabling conduct set
forth in the preceding paragraph and is fairly and reasonably entitled to
indemnity for the expenses which the court shall determine; or
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(b) In respect of any claim, issue, or matter as to which that person shall
have been adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in the person's official capacity; or
(c) Of amounts paid in settling or otherwise disposing of a threatened or
pending action, with or without court approval, or of expenses incurred in
defending a threatened or pending action which is settled or otherwise disposed
of without court approval, unless the required approval set forth in Section 6
of this Article is obtained.
Section 5. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of the
Trust has been successful on the merits in defense of any proceeding referred to
in Sections 2 or 3 of this Article or in defense of any claim, issue or matter
therein, before the court or other body before whom the proceeding was brought,
the agent shall be indemnified against expenses actually and reasonably incurred
by the agent in connection therewith, provided that the Board of Trustees,
including a majority who are disinterested, non-party trustees, also determines
that based upon a review of the facts, the agent was not liable by reason of the
disabling conduct referred to in Section 4 of this Article.
Section 6. REQUIRED APPROVAL. Except as provided in Section 5 of this
Article, any indemnification under this Article shall be made by the Trust only
if authorized in the specific case on a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3 of this Article and
is not prohibited from indemnification because of the disabling conduct set
forth in Section 4 of this Article, by:
(a) A majority vote of a quorum consisting of Independent Trustees who are
not parties to the proceeding; or
(b) A written opinion by an independent legal counsel.
Section 7. ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the Trust before the final disposition of the
proceeding on receipt of an undertaking by or on behalf of the agent to repay
the amount of the advance unless it shall be determined ultimately that the
agent is entitled to be indemnified as authorized in this Article, provided the
agent provides a security for his undertaking, or a majority of a quorum of the
disinterested, non-party trustees, or an independent legal counsel in a written
opinion, determine that based on a review of readily available facts, there is
reason to believe that said agent ultimately will be found entitled to
indemnification.
Section 8. CONTRACT RIGHTS. With respect to any person who was or is a
party or is threatened to be made a party to, or is involved as a witness in,
any proceeding by reason of the fact that such person is or was an agent of the
Trust, the rights to indemnification conferred in Sections 2 and 3 of this
Article VI and the advancement of expenses conferred in Section 7 of this
Article VI, shall be contract rights. Any amendment, repeal, or modification of,
or adoption of any provision inconsistent with, this Article VI (or any
provision hereof) shall not adversely affect any right to indemnification or
advancement of expenses granted to any such person pursuant hereto with respect
to any act or omission of such person occurring prior to the effective time of
such amendment, repeal, modification, or adoption (regardless of whether the
proceeding relating to such acts or omissions is commenced before or after the
effective time of such amendment, repeal, modification, or adoption); subject,
however, to any restrictions or limitations imposed by the Delaware Statutory
Trust Act, as amended from time to time, or under any similar law adopted in
lieu thereof.
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Section 9. 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.
Section 10. LIMITATIONS. No indemnification or advance shall be made under
this Article in any circumstances where it would be inconsistent with:
(a) A provision of the Declaration of Trust, a resolution of the
shareholders, or an agreement which prohibits or otherwise limits
indemnification which was in effect at the time of accrual of the alleged cause
of action asserted in the proceeding in which the expenses were incurred or
other amounts were paid; or
(b) Any condition expressly imposed by a court in approving a settlement.
Section 11. INSURANCE. Upon and in the event of a determination by the
Board of Trustees to purchase such insurance, the Trust shall be entitled to
purchase and maintain insurance on behalf of any agent of the Trust against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such.
Section 12. 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.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The Trust shall
keep at its principal executive office or at the office of its transfer agent or
registrar a record of its shareholders, providing the names and addresses of all
shareholders and the number, series and classes of shares held by each
shareholder.
Section 2. MAINTENANCE AND INSPECTION OF BY-LAWS. The Trust shall keep at
its principal executive office the original or a copy of these By-Laws as
amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 3. MAINTENANCE AND INSPECTION OF OTHER RECORDS. The accounting
books and records and minutes of proceedings of the shareholders and the Board
of Trustees and any committee or committees of the Board of Trustees shall be
kept at such place or places designated by the Board of Trustees or in the
absence of such designation, at the principal executive office of the Trust. The
minutes and the accounting books and records shall be kept either in written
form or in any other form capable of being converted into written form. The
minutes and accounting books and records shall be open to inspection upon the
written demand of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney.
Section 4. INSPECTION BY TRUSTEES. Every trustee shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the
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Trust. This inspection by a trustee may be made in person or by an agent or
attorney and the right of inspection includes the right to copy and make
extracts of documents.
ARTICLE VIII
DIVIDENDS
Section 1. DECLARATION OF DIVIDENDS. Dividends upon the shares of
beneficial interest of the Trust may, subject to the provisions of the
Declaration of Trust, if any, be declared by the Board of Trustees at any
regular or special meeting, pursuant to applicable law. Dividends may be paid in
cash, in property, or in shares of the Trust.
Section 2. RESERVES. Before payment of any dividend there may be set aside
out of any funds of the Trust available for dividends such sum or sums as the
Board of Trustees may, from time to time, in its absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Trust, or for such other
purpose as the Board of Trustees shall deem to be in the best interests of the
Trust, and the Board of Trustees may abolish any such reserve in the manner in
which it was created.
ARTICLE IX
GENERAL MATTERS
Section 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. All checks, drafts, or
other orders for payment of money, notes or other evidences of indebtedness
issued in the name of or payable to the Trust shall be signed or endorsed by
such person or persons and in such manner as from time to time shall be
determined by resolution of the Board of Trustees.
Section 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of Trustees,
except as otherwise provided in these By-Laws, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Trust and this authority may be general or
confined to specific instances; and unless so authorized or ratified by the
Board of Trustees or within the agency power of an officer, no officer, agent,
or employee shall have any power or authority to bind the Trust by any contract
or engagement or to pledge its credit or to render it liable for any purpose or
for any amount.
Section 3. CERTIFICATES FOR SHARES. As a matter of general policy,
certificates for shares of beneficial interest in any series of the Trust will
not be issued. Appropriate officers of the Trust may authorize the issuance of
certificates in certain limited circumstances determined by such officers to be
appropriate, provided such shares are fully paid. All certificates shall be
signed in the name of the Trust by the Chairperson, the President or vice
president and by the treasurer or an assistant treasurer or the secretary or any
assistant secretary, certifying the number of shares and the series and class of
shares owned by the shareholders. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Trust with the same effect as if
such person were an officer, transfer agent or registrar at the date of issue.
Notwithstanding the foregoing, the Trust may adopt and use a system of issuance,
recordation and transfer of its shares by electronic or other means.
Section 4. LOST CERTIFICATES. Except as provided in this Section 4, as a
matter of general policy, no new certificates for shares shall be issued to
replace an old certificate. In the event a new certificate is authorized to be
issued to replace an old certificate, the latter must be surrendered to the
Trust and cancelled at the same time. In case any share certificate or
certificate for any other security is lost, stolen or destroyed, the appropriate
officers of the Trust may authorize the issuance of a replacement certificate on
such terms and conditions as the Board of Trustees or such appropriate officers
may require, including a provision for indemnification of the Trust secured by a
bond or other adequate security sufficient to protect the Trust against any
claim that may be made against it, including any expense or liability on account
of the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY TRUST. The
Chairperson, the President or any vice president or any other person authorized
by resolution of the Board of Trustees or by any of the foregoing designated
officers, is authorized to vote or represent on behalf of the Trust any and all
shares of any corporation, partnership, trust, or other entity, foreign or
domestic, standing in the name of the Trust. The authority granted may be
exercised in person or by a proxy duly executed by such designated person.
Section 6. TRANSFER OF SHARES. Shares of the Trust shall be transferable
only on the record books of the Trust by the Person in whose name such Shares
are registered, or by his or her duly authorized attorney or representative. In
all cases of transfer by an attorney-in-fact, the original power of attorney, or
an official copy thereof duly certified, shall be deposited and remain with the
Trust, its transfer agent or other duly authorized agent. In case of transfers
by executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited and remain with the Trust, its transfer agent or other duly
authorized agent. No transfer shall be made unless and until the certificate
issued to the transferor, if any, shall be delivered to the Trust, its transfer
agent or other duly authorized agent, properly endorsed.
Section 7. HOLDERS OF RECORD. The Trust shall be entitled to treat the
holder of record of any share or shares as the owner thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not the Trust
shall have express or other notice thereof.
Section 8. FISCAL YEAR. The fiscal year of the Trust and each series
thereof shall be fixed by resolution of the Board of Trustees and, subject to
applicable law or regulation, may be re-fixed or changed from time to time by
resolution of the Board of Trustees. The fiscal year of the Trust shall be the
taxable year of each series of the Trust.
ARTICLE X
AMENDMENTS
Section 1. AMENDMENT. These By-laws may be restated and/or amended at any
time, without the approval of the shareholders, by an instrument in writing
signed by, or a resolution of, a majority of the then Board of Trustees.
