Exhibit 2
BY-LAWS
OF
XXXXXXX XXXXX PRINCIPAL PROTECTED TRUST
TABLE OF CONTENTS
ARTICLE I Agreement and Declaration of Trust ................................ 1
Section 1. Agreement and Declaration of Trust ......................... 1
Section 2. Definitions ................................................ 1
ARTICLE II Offices .......................................................... 1
Section 1. Principal Office ........................................... 1
Section 2. Registered Office and Other Offices ........................ 1
ARTICLE III Shareholders .................................................... 1
Section 1. Meetings ................................................... 1
Section 2. Notice of Meetings ......................................... 1
Section 3. Record Date for Meetings ................................... 2
Section 4. Proxies .................................................... 2
Section 5. Inspection of Books ........................................ 3
Section 6. Action Without Meeting ..................................... 3
Section 7. Application of this Article ................................ 3
ARTICLE IV Trustees ......................................................... 3
Section 1. Meetings of the Trustees ................................... 3
Section 2. Quorum and Manner of Acting ................................ 4
ARTICLE V Committees ........................................................ 4
Section 1. Executive Committee ........................................ 4
Section 2. Other Committees ........................................... 4
Section 3. Meetings, Quorum and Manner of Acting ...................... 4
ARTICLE VI Officers ......................................................... 5
Section 1. General Provisions ......................................... 5
Section 2. Term of Office and Qualifications .......................... 5
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Section 3. Removal .................................................... 5
Section 4. Powers and Duties of the President ......................... 5
Section 5. Powers and Duties of the Vice President .................... 5
Section 6. Powers and Duties of the Treasurer ......................... 5
Section 7. Powers and Duties of the Secretary ......................... 6
Section 8. Powers and Duties of Assistant Treasurers .................. 6
Section 9. Powers and Duties of Assistant Secretaries ................. 6
Section 10. Compensation of Officers and the Trustees .................. 6
ARTICLE VII Fiscal Year ..................................................... 6
ARTICLE VIII Seal ........................................................... 6
ARTICLE IX Waivers of Notice ................................................ 7
ARTICLE X Custody of Securities ............................................. 7
Section 1. Employment of a Custodian .................................. 7
Section 2. Action upon Termination of Custodian Agreement ............. 7
Section 3. Provisions of Custodian Contract ........................... 7
Section 4. Central Certificate System ................................. 8
ARTICLE XI Indemnification of Trustees, Officers, Employees
and Other Agents .......................................................... 8
Section 1. Agents, Proceedings, Expenses .............................. 8
Section 2. Indemnification ............................................ 8
Section 3. Limitations, Settlements ................................... 8
Section 4. Insurance, Rights Not Exclusive ............................ 9
Section 5. Advance of Expenses ........................................ 9
Section 6. Fiduciaries of Employee Benefit Plan ....................... 9
ARTICLE XII Certificates .................................................... 10
ARTICLE XIII Amendments ..................................................... 10
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BY-LAWS
OF
XXXXXXX XXXXX PRINCIPAL PROTECTED TRUST
ARTICLE I
Agreement and Declaration of Trust
Section 1. Agreement and Declaration of Trust. These By-Laws shall be
subject to the Agreement and Declaration of Trust, as from time to time amended,
supplemented or restated (the "Declaration of Trust") of Xxxxxxx Xxxxx Principal
Protected Trust (the "Trust").
Section 2. Definitions. Unless otherwise defined herein, the terms used
herein have the respective meanings given them in the Declaration of Trust.
ARTICLE II
Offices
Section 1. Principal Office. The principal office of the Trust shall be
located at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, or such other
location as the Trustees may from time to time determine.
Section 2. Registered Office and Other Offices. The registered office of
the Trust shall be located in the City of Wilmington, State of Delaware or such
other location within the State of Delaware as the Trustees may from time to
time determine. The Trust may establish and maintain such other offices and
places of business as the Trustees may from time to time determine.
ARTICLE III
Shareholders
Section 1. Meetings. Meetings of the Shareholders shall be held at the
principal executive offices of the Trust or at such other place within the
United States of America as the Trustees shall designate. Meetings of the
Shareholders shall be called by the Secretary whenever (i) ordered by a majority
of the Trustees, the Chairman of the Board or the President or (ii) requested in
writing by Shareholders holding at least ten percent (10%) of the outstanding
Shares entitled to vote. If the Secretary, when so ordered or requested, refuses
or neglects for more than 10 days to call such meetings, the Trustees, Chairman
of the Board, President, or the Shareholders so requesting, may, in the name of
the Secretary, call the meeting by giving notice thereof in the manner required
when notice is given by the Secretary.
Section 2. Notice of Meetings. Except as otherwise herein provided, notice
of all meetings of the Shareholders, stating the time, place and purposes of the
meeting, shall be given
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by the Secretary by delivering or mailing, postage prepaid, to each Shareholder
entitled to vote at said meeting at his or her address as recorded on the
register of the Trust at least ten (10) days and not more than ninety (90) days
before the meeting. Only the business stated in the notice of the meeting shall
be considered at such meeting. Notice of adjournment of a Shareholders' meeting
to another time or place need not be given, if such time and place are announced
at the meeting and the adjourned meeting is held within one hundred and twenty
(120) days after the date set for the original meeting. No notice need be given
to any Shareholder who shall have failed to inform the Trust of his or her
current address, for whom a written waiver of notice, executed before or after
the meeting by the Shareholder or his or her attorney so authorized, is filed
with the records of the meeting, or to any Shareholder who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him or her.
Section 3. Record Date for Meetings. For the purpose of determining the
Shareholders who are entitled to notice of and to vote at any meeting, the
Trustees may from time to time close the transfer books for such period, not
exceeding thirty (30) days, as the Trustees may determine; or without closing
the transfer books the Trustees may fix a date not more than ninety (90) days
prior to the date of any meeting of Shareholders as a record date for the
determination of the persons to be treated as Shareholders of record for such
purpose.
Section 4. Proxies. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote either in person or by written proxy signed by
the Shareholder, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Secretary, or with such other officer or
agent of the Trust as the Secretary may direct, for verification prior to the
time at which such vote shall be taken; provided, however, that notwithstanding
any other provision of this Section 4 to the contrary, the Trustees may at any
time adopt one or more electronic, telecommunication, telephonic, computerized
or other alternatives to execution of a written instrument that will enable
holders of Shares entitled to vote at any meeting to appoint a proxy to vote
such holders' Shares at such meeting. Proxies may be solicited in the name of
one or more of the Trustees, or one or more of the officers of the Trust. Only
Shareholders of record shall be entitled to vote. When any Share is held jointly
by several persons, any one of them may vote at any meeting in person or by
proxy in respect of such Share, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. 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 on the challenger. If the holder
of any such Share is a minor or a person of unsound mind, and subject to
guardianship or the legal control of any other person as regards the charge or
management of such Share, he or she may vote by his or her guardian or such
other person appointed or having such control, and such vote may be given in
person or by proxy. At all meetings of the Shareholders, unless the voting is
conducted by inspectors, all questions relating to the qualifications of voters,
the validity of proxies, and the acceptance or rejection of votes shall be
decided by the chairman of the meeting. Except as otherwise provided herein or
in the Declaration of Trust or the Delaware Business Trust Act, 12 Del. C.
xx.xx. 3801 et seq., all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Shareholders were shareholders of a
Delaware corporation.
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Section 5. Inspection of Books. The Trustees shall from time to time
determine whether and to what extent, and at what times and places, and under
what conditions and regulations the accounts and books of the Trust or any of
them shall be open to the inspection of the Shareholders; and no Shareholder
shall have any right to inspect any account or book or document of the Trust
except as conferred by law or otherwise by the Trustees or by resolution of the
Shareholders.
Section 6. Action Without Meeting. Any action that may be taken at any
meeting of Shareholders may be taken without a meeting and without prior notice
if a consent in writing setting forth the action so taken is signed by the
holders of outstanding Shares 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 Shares entitled to vote on that action were present and voted. All such
consents shall be filed with the records of Shareholder meetings. Such consents
shall be treated for all purposes as a vote taken at a meeting of Shareholders.
Section 7. Application of this Article. Meetings of Shareholders shall
consist of Shareholders of any Series (or Class thereof) or of all Shareholders,
as determined pursuant to the Declaration of Trust, and this Article shall be
construed accordingly.
ARTICLE IV
Trustees
Section 1. Meetings of the Trustees. The Trustees may in their discretion
provide for regular or stated meetings of the Trustees. Notice of regular or
stated meetings need not be given. Meetings of the Trustees other than regular
or stated meetings shall be held whenever called by the Chairman, the President,
or by any two of the Trustees, at the time being in office. Notice of the time
and place of each meeting other than regular or stated meetings shall be given
by the Secretary or an Assistant Secretary or by the officer or Trustees calling
the meeting and shall be delivered or mailed, postage prepaid, to each Trustee
at least two days before the meeting, or shall be telegraphed, cabled, or wired
to each Trustee at his or her business address, or personally delivered to him
or her, at least one day before the meeting. Such notice may, however, be waived
by any Trustee. Notice of a meeting need not be given to any Trustee if a
written waiver of notice, executed by him or her before or after the meeting, is
filed with the records of the meeting, or to any Trustee who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him or her. A notice or waiver of notice need not specify the purpose of any
meeting. The Trustees may meet by means of a telephone conference circuit or
similar communications equipment by means of which all persons participating in
the meeting are connected, which meeting shall be deemed to have been held at a
place designated by the Trustees at the meeting. Participation in a telephone
conference meeting shall constitute presence in person at such meeting. Any
action required or permitted to be taken at any meeting of the Trustees may be
taken by the Trustees without a meeting if a majority of the Trustees then in
office (or such higher number of Trustees as would be required to act on the
matter under the Declaration of Trust, these By-Laws or applicable law if a
meeting were held) consent to the action in writing and the written consents are
filed with the records of the Trustees' meetings. Such consents shall be treated
for all purposes as a vote taken at a meeting of the Trustees. Notwithstanding
the foregoing, all actions
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of the Trustees shall be taken in compliance with the provisions of the 1940
Act.
Section 2. Quorum and Manner of Acting. A majority of the Trustees then in
office shall constitute a quorum for the transaction of business. If at any
meeting of the Trustees there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum shall be
obtained. Notice of an adjourned meeting need not be given. The act of the
majority of the Trustees present at any meeting at which there is a quorum shall
be the act of the Trustees, except as may be otherwise specifically provided by
law or by the Declaration of Trust or by these By-Laws.
ARTICLE V
Committees
Section 1. Executive Committee. The Trustees by vote of a majority of all
the Trustees may elect from their own number an Executive Committee to consist
of two (2) or more Trustees to hold office at the pleasure of the Trustees,
which shall have the power to conduct the current and ordinary business of the
Trust while the Trustees are not in session, including the purchase and sale of
securities and the designation of securities to be delivered upon redemption of
Shares of the Trust, and such other powers of the Trustees as the Trustees may,
from time to time, delegate to them except those powers by law, the Declaration
of Trust or these By-Laws they are prohibited from delegating.
Section 2. Other Committees. The Trustees by vote of a majority of all the
Trustees may elect from their own number other Committees from time to time to
consist of one or more Trustees to hold office at the pleasure of the Trustees,
which shall have such power and duties as the Board of Trustees may, by
resolution, prescribe, subject to the same limitations as with respect to the
Executive Committee. The terms of membership on such Committees and the
termination or circumstances giving rise to the termination of such Committees
shall be determined by the Trustees. The Trustees may designate a chairman of
any such Committee. In the absence of such designation the Committee may elect
its own chairman.
Section 3. Meetings, Quorum and Manner of Acting. The Trustees may (1)
provide for stated meetings of any Committees, (2) specify the manner of calling
and notice required for special meetings of any Committee, (3) specify the
number of members of a Committee required to constitute a quorum and the number
of members of a Committee required to exercise specified powers delegated to
such Committee, (4) authorize the making of decisions to exercise specified
powers by written assent of the requisite number of members of a Committee
without a meeting, and (5) authorize the members of a Committee to meet by means
of a telephone conference circuit. Each Committee shall keep regular minutes of
its meetings and records of decisions taken without a meeting and cause them to
be recorded in a book designated for that purpose and kept at the principal
executive offices of the Trust.
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ARTICLE VI
Officers
Section 1. General Provisions. The officers of the Trust shall be a
President, a Treasurer and a Secretary, who shall be elected by the Trustees.
The Trustees may elect such other officers or agents as the business of the
Trust may require, including a Chairman of the Board ("Chairman"), one or more
Vice Presidents, one or more Assistant Secretaries, and one or more Assistant
Treasurers. The Trustees may delegate to any officer or Committee the power to
appoint any subordinate officers or agents.
Section 2. Term of Office and Qualifications. Except as otherwise provided
by law, the Declaration of Trust or these By-Laws, the President, the Treasurer
and the Secretary, and all other officers shall hold office at the pleasure of
the Trustees. The same person may hold more than one office. The Chairman, if
there be one, shall be a Trustee and may but need not be a Shareholder. Any
other officer may be but none need be a Trustee or Shareholder.
Section 3. Removal. The Trustees, at any regular or special meeting of the
Trustees, may remove any officer with or without cause, by a vote of a majority
of the Trustees then in office. Any officer or agent appointed by an officer or
committee may be removed with or without cause by such appointing officer or
committee.
Section 4. Powers and Duties of the President. The President shall be the
principal executive officer of the Trust and shall, subject to the control of
the Trustees and any Committees of the Trustees, within their respective
spheres, as provided by the Trustees, at all times exercise a general
supervision, direction and control of the business and officers of the Trust. He
or she may call meetings of the Trustees and of any Committee thereof when he or
she deems it necessary and, in the absence of the Chairman, or if there be no
Chairman, shall preside at all meetings of the Shareholders and the Trustees.
The President shall have the power to employ attorneys, accountants and other
advisers and agents for the Trust and to employ such subordinate officers,
agents, clerks and employees as he or she may find necessary to transact the
business of the Trust. He or she shall also have the power to grant, issue,
execute or sign such powers of attorney, proxies or other documents as may be
deemed advisable or necessary in furtherance of the interests of the Trust. The
President shall have such other powers and duties as from time to time may be
conferred upon or assigned to him or her by the Trustees.
Section 5. Powers and Duties of the Vice President. In the absence or
disability of the President, the Vice President or, if there be more than one
Vice President, any Vice President designated by the Trustees shall perform all
the duties and may exercise any of the powers of the President, subject to the
control of the Trustees. Each Vice President shall perform such other duties as
may be assigned to him or her from time to time by the Trustees or the
President.
Section 6. Powers and Duties of the Treasurer. The Treasurer shall be the
principal financial and accounting officer of the Trust. The Treasurer shall
deliver all funds of the Trust which may come into his or her hands to such
Custodian as the Trustees may employ pursuant to Article X of these By-Laws. He
or she shall render a statement of condition of the finances of the Trust to the
Trustees as often as the Trustees shall require the same and he or she shall in
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general perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him or her by the Trustees.
The Treasurer shall give a bond for the faithful discharge of his or her duties,
if required so to do by the Trustees, in such sum and with such surety or
sureties as the Trustees shall require.
Section 7. Powers and Duties of the Secretary. The Secretary shall keep
the minutes of all meetings of the Trustees and of the Shareholders in proper
books provided for that purpose; he or she shall have custody of the seal of the
Trust; he or she shall have charge of the Share transfer books, lists and
records unless the same are in the charge of the Transfer Agent. The Secretary
shall attend to the giving and serving of all notices by the Trust in accordance
with the provisions of these By-Laws and as required by law; and subject to
these By-Laws, he or she shall in general perform all duties incident to the
office of the Secretary and such other duties as from time to time may be
assigned to him or her by the Trustees.
Section 8. Powers and Duties of Assistant Treasurers. In the absence or
disability of the Treasurer, any Assistant Treasurer designated by the Trustees
shall perform all the duties, and may exercise any of the powers, of the
Treasurer. Each Assistant Treasurer shall perform such other duties as from time
to time may be assigned to him or her by the Trustees. Each Assistant Treasurer
shall give a bond for the faithful discharge of his or her duties, if required
so to do by the Trustees, in such sum and with such surety or sureties as the
Trustees shall require.
Section 9. Powers and Duties of Assistant Secretaries. In the absence or
disability of the Secretary, any Assistant Secretary designated by the Trustees
shall perform all the duties, and may exercise any of the powers, of the
Secretary. Each Assistant Secretary shall perform such other duties as from time
to time may be assigned to him or her by the Trustees.
Section 10. Compensation of Officers and the Trustees. Subject to any
applicable provisions of the Declaration of Trust, the compensation of the
officers and Trustees shall be fixed from time to time by the Trustees or, in
the case of officers, by any Committee or officer upon whom such power may be
conferred by the Trustees. No officer shall be prevented from receiving such
compensation as such officer by reason of the fact that he or she is also a
Trustee.
ARTICLE VII
Fiscal Year
The fiscal year of the Trust shall end on such date as the Trustees shall
from time to time determine.
ARTICLE VIII
Seal
The Trustees may adopt a seal which shall be in such form and shall have
such inscription thereon as the Trustees may from time to time prescribe.
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ARTICLE IX
Waivers of Notice
Whenever any notice whatever is required to be given by law, the
Declaration of Trust or these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. A notice shall be deemed to
have been telegraphed, cabled or wired for the purposes of these By-Laws when it
has been delivered to a representative of any telegraph, cable or wire company
with instructions that it be telegraphed, cabled or wired.
ARTICLE X
Custody of Securities
Section 1. Employment of a Custodian. The Trust shall place and at all
times maintain in the custody of a Custodian including any sub-custodian for the
Custodian, all funds, securities and similar investments included in the Trust
Property. The Custodian (and any sub-custodian) shall be appointed from time to
time by the Trustees, who shall fix its remuneration.
Section 2. Action upon Termination of Custodian Agreement. Upon
termination of a Custodian Agreement or inability of the Custodian to continue
to serve, the Trustees shall promptly appoint a successor custodian, but in the
event that no successor custodian can be found who has the required
qualifications and is willing to serve, the Trustees shall call as promptly as
possible a special meeting of the Shareholders to determine whether the Trust
shall function without a custodian or shall be liquidated. If so directed by a
vote of holders of the majority of the outstanding Shares entitled to vote, the
Custodian shall deliver and pay over all Trust Property held by it as specified
in such vote.
Section 3. Provisions of Custodian Contract. The following provisions
shall apply to the employment of a Custodian and to any contract entered into
with the Custodian so employed: The Trustees shall cause to be delivered to the
Custodian all securities included in the Trust Property or to which the Trust
may become entitled, and shall order the same to be delivered by the Custodian
only in completion of a sale, exchange, transfer, pledge, loan of portfolio
securities to another person, or other disposition thereof, all as the Trustees
may generally or from time to time require or approve or to a successor
Custodian; and the Trustees shall cause all funds included in the Trust Property
or to which it may become entitled to be paid to the Custodian, and shall order
the same disbursed only for investment against delivery of the securities
acquired (including securities acquired under a repurchase agreement), or the
return of cash held as collateral for loans of portfolio securities, or in
payment of expenses, including management compensation, and liabilities of the
Trust, including distributions to Shareholders, or to a successor Custodian.
Notwithstanding anything to the contrary to these By-Laws, upon receipt of
proper instructions, which may be standing instructions, the Custodian may
deliver funds in the following cases: In connection with repurchase agreements,
the Custodian shall transmit prior to receipt on behalf of the Trust of any
securities or other property, funds from the Trust's custodian account to a
special custodian approved by the Trustees of the Trust, which funds shall be
used to pay for securities to be purchased by the Trust subject to the Trust's
obligation to sell
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and the seller's obligation to repurchase such securities (in such case, the
securities shall be held in the custody of the special custodian); in connection
with the Trust's purchase or sale of financial futures contracts, the Custodian
shall transmit, prior to receipt on behalf of the Trust of any securities or
other property, funds from the Trust's custodian account in order to furnish and
to maintain funds with brokers as margin to guarantee the performance of the
Trust's futures obligations in accordance with the applicable requirements of
commodities exchanges and brokers.
Section 4. Central Certificate System. Subject to applicable rules,
regulations and orders adopted by the Commission, the Trustees may direct the
Custodian to deposit all or any part of the securities owned by the Trust in a
system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, or such other person as
may be permitted by the Commission, or otherwise in accordance with the 1940
Act, pursuant to which system all securities of any particular class or series
of any issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the Trust.
ARTICLE XI
Indemnification of Trustees, Officers, Employees and Other Agents
Section 1. Agents, Proceedings, Expenses. 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 agent of another organization in which
the Trust has any interest as a shareholder, creditor or otherwise; "proceeding"
means any threatened, pending or completed claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative (including appeals);
and "expenses" includes, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and all other liabilities
whatsoever.
Section 2. Indemnification. Subject to the exceptions and limitation
contained in Section 3 below, every agent shall be indemnified by the Trust to
the fullest extent permitted by law against all liabilities and against all
expenses reasonably incurred or paid by him or her in connection with any
proceeding in which he or she becomes involved as a party or otherwise by virtue
of his or her being or having been an agent.
Section 3. Limitations, Settlements. No indemnification shall be provided
hereunder to an agent:
(1) who shall have been adjudicated by the court or other body
before which the proceeding was brought to be 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 his or her office
(collectively, "disabling conduct"); or
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(2) with respect to any proceeding disposed of (whether by
settlement, pursuant to a consent decree or otherwise) without an adjudication
by the court or other body before which the proceeding was brought that such
agent was liable to the Trust or its Shareholders by reason of disabling
conduct, unless there has been a determination that such agent did not engage in
disabling conduct:
(i) by the court or other body before which the proceeding was
brought;
(ii) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the
proceeding based upon a review of readily available facts (as
opposed to a full trial-type inquiry); or
(iii) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full
trial-type inquiry); provided, however, that indemnification
shall be provided hereunder to an agent with respect to any
proceeding in the event of (1) a final decision on the merits
by the court or other body before which the proceeding was
brought that the agent was not liable by reason of disabling
conduct, or (2) the dismissal of the proceeding by the court
or other body before which it was brought for insufficiency of
evidence of any disabling conduct with which such agent has
been charged.
Section 4. Insurance, Rights Not Exclusive. The rights of indemnification
herein provided may be insured against by policies maintained by the Trust on
behalf of any agent, shall be severable, shall not be exclusive of or affect any
other rights to which any agent may now or hereafter be entitled and shall inure
to the benefit of the heirs, executors and administrators of any agent.
Section 5. Advance of Expenses. Expenses incurred by an agent in
connection with the preparation and presentation of a defense to any proceeding
may be paid by the Trust from time to time prior to final disposition thereof
upon receipt of an undertaking by or on behalf of such agent that such amount
will be paid over by him or her to the Trust if it is ultimately determined that
he or she is not entitled to indemnification under this Article XI; provided,
however, that (a) such agent shall have provided appropriate security for such
undertaking, (b) the Trust is insured against losses arising out of any such
advance payments or (c) either a majority of the Trustees who are neither
Interested Persons of the Trust nor parties to the proceedings, or independent
legal counsel in a written opinion, shall have determined, based upon a review
of readily available facts (as opposed to a trial-type inquiry or full
investigation), that there is reason to believe that such agent will be found
entitled to indemnification under this Article XI.
Section 6. 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 this Trust as defined in Section 1 of
this Article. Nothing contained in this Article shall limit any right to
indemnification to which such Trustee, investment manager, or other fiduciary
may be entitled
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by contract or otherwise which shall be enforceable to the extent permitted by
applicable law other than this Article.
ARTICLE XII
Certificates
If so determined by resolution of the Board of Trustees, each Shareholder
of the Trust shall be entitled upon request to have a certificate or
certificates, in such form as shall be approved by the Board of Trustees,
representing the number of Shares of the Trust owned by him, provided, however,
that certificates for fractional shares will not be delivered in any case.
Certificates representing Shares shall be signed by or in the name of the Trust
by the President or a Vice President or the Chairman of the Board and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures, or the seal on the certificate, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate shall be
issued, it may be issued by the Trust with the same effect as if such officer,
transfer agent or registrar were still in the office at the date of issue.
ARTICLE XIII
Amendments
These By-Laws, or any of them, may be altered, amended or repealed, or new
By-Laws may be adopted by (a) a vote of holders of the majority of the
outstanding Shares entitled to vote or (b) by the Trustees, provided, however,
that no By-law may be amended, adopted or repealed by the Trustees if such
amendment, adoption or repeal is required by the 1940 Act to be submitted to a
vote of the Shareholders.
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