Common use of Determination of Eligibility Clause in Contracts

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTH, to ----------------------------- the extent required under the 1940 Act, (i) Article NINTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-party Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees of the Trust or an independent legal counsel, as expressed 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 Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTH, the term "disinterested, non-party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTHTENTH, to ----------------------------- the extent required under the 1940 Act, (i) Article NINTHTENTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-party Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees Trustees of the Trust or an independent ' legal counsel, as expressed 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 Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTHTENTH, the term "disinterested, "non-party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTH, to ----------------------------- the extent required ----------------------------- under the 1940 Act, (i) Article NINTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-party Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees of the Trust or an independent legal counsel, as expressed 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 Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTH, the term "disinterested, non-party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTHTENTH, to ----------------------------- the extent required under the 1940 Act, (i) Article NINTHTENTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-non- party Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-non- party trustees Trustees of the Trust or an independent legal counsel, as expressed in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-trial- type inquiry), that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTHTENTH, the term "disinterested, non-non- party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTHTENTH, to ----------------------------- the extent required under the 1940 Act, (i) Article NINTHTENTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-non- party Trustees," ", as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees Trustees of the Trust or an independent legal counsel, as expressed 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 Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTHTENTH, the term "disinterested, non-non- party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding The administrator shall determine the eligibility of each Employee for participation in the Plan based upon information furnished by the Employer. Such determination shall be conclusive and binding upon all persons, as long as the same is made in accordance .with this Plan and the Act, provided such determination shall be subject to review under the terms of the Plan. TERMINATION OF ELIGIBILITY: A Participant shall cease to be eligible to participate in the Plan as of the first day of a Plan Year during which he has a Break in Service. in the event a Participant becomes ineligible to participate solely because he is no longer a member of a class eligible to participate, such Former Participant shall continue to vest in his interest in the Plan until such time as he has a Break in Service. OMISSION OF ELIGIBLE EMPLOYEE: If, in any Fiscal Year, any Employee who should be included as a Participant in the Plan is erroneously omitted and discovery of such omission is not made until after a contribution by his Employer for the year has been made and allocated, his Employer shall make a subsequent contribution with respect to the omitted Employee in the amount which would have contributed with respect to him had he not been omitted. Such contribution shall be made regardless of whether or not it is deductible in whole or in part in any taxable year under applicable provisions of Section the Code by such Employer, ELECTION NOT TO PARTICIPATE: if this Plan, as adopted by the Employer, is not a standardized form plan (as that term is defined in Revenue Procedure 84-23) then, an Employee may, subject to the approval of the Employer, elect voluntarily not to participate in the Plan: The election not to participate must be communicated to the Employer, in writing, at least thirty (30) days before the beginning of a Plan Year. A Participant in making this election shall have the right to modify or revoke this election no later than 30 days after the effective date of Article NINTHParticipation in a subsequent Plan Year. CONTROL OF ENTITIES BY OWNER-EMPLOYEE: If this Plan provides contributions or benefits for one or more Owner-Employees who control both the Employer and one or more other entities, this Plan and the plan established for those other entities must, when treated as a single Plan, satisfy Code Sections 1165 for the Employees of this and all other entities. LEASED EMPLOYEES: Any leased employee. shall be treated as an Employee of the recipient Employer' however, contributions or benefits provided by the leasing organization 5 which are attributable to ----------------------------- services performed for the extent required under recipient Employer shall be treated as provided by the 1940 Act, (i) Article NINTH, Section A, recipient Employer. The preceding sentence shall not protect apply to any person against any liability to the Trust or to its Shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits leased employee if such employee is covered by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the money purchase pension plan providing"disinterested, non-party Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees of the Trust or an independent legal counsel, as expressed 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 Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTH, the term "disinterested, non-party Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.

Determination of Eligibility. Notwithstanding the provisions of Section A of Article NINTHTENTH, to ----------------------------- the extent required under the 1940 Act, (i) Article NINTHTENTH, Section A, shall not protect any person against any liability to the Trust or to its Shareholders shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office; (ii) in the absence of a final decision on the merits by a court or other body before whom a Proceeding was brought that a Covered Person was not liable by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office, no indemnification shall be permitted unless a determination that such person was not so liable shall have been made on behalf of the Trust by (a) the vote of a majority of the "disinterested, non-party nonparty Trustees," as defined below, or (b) an independent legal counsel as expressed in a written opinion; and (iii) the Trust shall not advance attorneys' fees incurred by a Covered Person in connection with Proceeding unless the Trust receives an undertaking by or on behalf of the Covered Person to repay the advance (unless it is ultimately determined that he is entitled to indemnification) and (a) the Covered Person shall provide security for his undertaking, or (b) the Trust shall be insured against losses arising by reason of any lawful advances, or (c) a majority of the disinterested, non-party trustees nonparty Trustees of the Trust or an independent legal counsel, as expressed in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-trial type inquiry), that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification. Such undertaking shall provide that the Covered Person to whom the advance was made shall not be obligated to repay pursuant to such undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction, including appeals therefrom, concerning the right of such Covered Person to be indemnified by the Trust or the obligation of such person to repay pursuant to the undertaking. Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any amount paid to such Covered Person in accordance with this Section as indemnification if such Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that such Covered Person's action was in, or not opposed to, the best interests of the Trust or to have been liable to the Trust or its Shareholders shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person's office. As used in this Article NINTHTENTH, the term "disinterested, non-party nonparty Trustee" is a Trustee who is not an "interested person" of the Trust, as defined in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in question or another action, suit or other Proceeding on the same or similar grounds is then or has been pending.