INSTRUMENT
THIS INSTRUMENT is entered into by the undersigned trustees (the
"Trustees") as of November 18, 2008.
WHEREAS, the undersigned Trustees constitute all of the
trustees holding office for each of the trusts identified on Attachment A hereto
(the "Trusts");
WHEREAS, the Agreement and Declaration of Trust and By-Laws
now in effect for each of the Trusts provide that each such Agreement and
Declaration of Trust and such By-Laws may be amended by the Trustees (subject to
certain limitations not here applicable);
NOW, THEREFORE, the undersigned Trustees hereby adopt for each
Trust the Amended and Restated Agreement and Declaration of Trust and By-Laws of
such Trust attached hereto as Attachment B.
IN WITNESS WHEREOF, the Trustees named below are signing this Instrument on
the date stated in the introductory clause.
/s/ Xxxx X. Xxxxxxx /s/ XxXxx Xxxxxxxxx Xxxxxx
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Xxxx X. Xxxxxxx XxXxx Xxxxxxxxx Xxxxxx
Trustee Trustee
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx Xxxxxx
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Xxxxxxx X. Xxxxx Xxxxx Xxxxxx
Trustee Trustee
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx, Xx.
Trustee Trustee
/s/ Xxxxx X. Xxxxx /s/ J. Xxxxxxxx Xxxxxx
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Xxxxx X. Xxxxx J. Xxxxxxxx Xxxxxx
Trustee Trustee
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Trustee
AMENDED AND RESTATED
BY-LAWS
OF
VANGUARD QUANTITATIVE FUNDS
These By-Laws of Vanguard Quantitative Funds, a Delaware statutory trust,
are subject to the Amended and Restated Declaration of Trust of the Trust dated
as of November 19, 2008, as from time to time amended, supplemented or restated
(the "Declaration of Trust"). In the event of any conflict between the
provisions of these By-Laws and the provisions of the Declaration of Trust, the
provisions of the Declaration of Trust will control. Capitalized terms used
herein which are defined in the Declaration of Trust are used as therein
defined.
ARTICLE I
Fiscal Year and Offices
Section 1. Fiscal Year. Unless otherwise provided by resolution of the
Board of Trustees, the fiscal year of the Trust shall begin on the 1st day of
October and end on the last day of September.
Section 2. Delaware Office. The Board of Trustees shall establish a
registered office in the State of Delaware and shall appoint as the Trust's
registered agent for service of process in the State of Delaware an individual
resident of the State of Delaware or a Delaware corporation or a foreign
corporation authorized to transact business in the State of Delaware; in each
case the business office of such registered agent for service of process shall
be identical with the registered Delaware office of the Trust.
Section 3. Principal Office. The principal office of the Trust shall be
located at 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, or such other
location s the Trustees may from time to time determine.
Section 4. 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 Meeting. Meetings of the Shareholders for the election
of Trustees shall be held in such place as shall be fixed by resolution of the
Board of Trustees and stated in the notice of the meeting.
Section 2. Annual Meetings. An annual meeting of Shareholders will not be
held unless the 1940 Act requires the election of Trustees to be acted upon.
Section 3. Special Meetings. Special meetings of the Shareholders may be
called at any time by the chairman, or president, or by the Board of Trustees,
and shall be called by the secretary upon written request of the holders of
Shares entitled to cast not less than twenty percent of all the votes entitled
to be cast at such meeting provided that (a) such request shall state the
purposes of such meeting and the matters proposed to be acted on and (b) the
Shareholders requesting such meeting shall have paid to the Trust the reasonable
estimated cost of preparing and mailing the notice thereof, which the secretary
shall determine and specify to such Shareholders. No special meeting need be
called upon the request of Shareholders entitled to cast less than a majority of
all votes entitled to be cast at such meeting to consider any matter which is
substantially the same as a matter voted on at any meeting of the Shareholders
held during the preceding twelve months. The foregoing provisions of this
Section 3 notwithstanding a special meeting of Shareholders shall be called upon
the request of the holders of at least ten percent of the votes entitled to be
cast for the purpose of consideration removal of a Trustee from office as
provided in section 16(c) of the 1940 Act.
Section 4. Notice. Not less than ten, nor more than ninety (90) days before
the date of every annual or special meeting, the secretary shall cause to be
delivered to each Shareholder entitled to vote at such meeting a written notice
in accordance with Article IV, Section 1 of these By-Laws stating the time and
place of the meeting and, in the case of a special meeting of Shareholders,
shall state the purposes of the meeting and the matters to be acted on and the
purposes of such special meeting and matters to be acted on shall be limited to
those stated in such written notice. 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. No notice need be given to any Shareholder who shall
have failed to inform the Trust of his or her current address or if a written
waiver of notice, executed before or after the meeting by the Shareholder or his
or her attorney thereunto authorized, is filed with the records of the meeting.
Section 5. Record Date for Meetings. The Board of Trustees may fix in
advance a date not more than ninety (90), nor less than ten, days prior to the
date of any annual or special meeting of the Shareholders as a record date for
the determination of the Shareholders entitled to receive notice of, and to vote
at any meeting and any adjournment thereof; and in such case such Shareholders
and only such Shareholders as shall be Shareholders of record on the date so
fixed shall be entitled to receive notice of and to vote at such meeting and any
adjournment thereof as the case may be, notwithstanding any transfer of any
stock on the books of the Trust after any such record date fixed as aforesaid.
Section 6. Quorum. Except as otherwise provided by the 1940 Act or in the
Trust's Declaration of Trust, at any meeting of Shareholders, the presence in
person or by proxy of the holders of record of Shares issued and outstanding and
entitled to vote representing more than fifty percent of the total combined net
asset value of all Shares issued and outstanding and entitled to vote shall
constitute a quorum for the transaction of any business at the meeting.
If, however, a quorum shall not be present or represented at any meeting of
the Shareholders, either the chairman of the meeting (without a Shareholder
vote) or the holders of a majority of the votes present or in person or by proxy
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented to a date not more than 120 days after the original record date. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 7. Voting. Each Shareholder shall have one vote for each dollar
(and a fractional vote for each fractional dollar) of the net asset value of
each share (including fractional Shares) held by such Shareholder on the record
date set pursuant to Section 5 on each matter submitted to a vote at a meeting
of Shareholders. For purposes of this section and Section 6 of this Article II,
net asset value shall be determined pursuant to Section 3, Article VIII of these
By-Laws as of the record date for such meeting set pursuant to Section 5. There
shall be no cumulative voting in the election of Trustees. At any meeting of
Shareholders, any Shareholder 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 7 to
the contrary, the Trustees or any officer of the Trust with responsibility for
such matters may at any time adopt one or more electronic, telecommunication,
telephonic, computerized or other alternatives to execution of a written
instrument that will enable Shareholders entitled to vote at any meeting to
appoint a proxy to vote such Shareholders' Shares at such meeting; provided,
further, that, until the Trustees or such officer adopt such electronic,
telecommunication, telephonic, computerized or other alternatives, no
Shareholder may act to appoint a proxy to vote such holder's Shares at a meeting
by any such alternatives and if the Trustees or such officer do adopt such
electronic, telecommunication, telephonic, computerized or other alternatives,
then Shareholders may only act in the manner prescribed by the Trustees. Proxies
may be solicited in the name of one or more 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. Unless otherwise specifically
limited by their terms, proxies shall entitle the holder thereof to vote at any
adjournment of a meeting. 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. Except as otherwise provided herein or in the Declaration of
Trust or the Delaware Act, 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.
At all meetings of the Shareholders, a quorum being present, the Trustees
shall be elected by the vote of a plurality of the votes cast by Shareholders
present in person or by proxy and all other matters shall be decided by majority
of the votes cast by Shareholders present in person or by proxy, unless the
question is one for which by express provision of the 1940 Act or the
Declaration of Trust, a different vote is required, in which case such express
provision shall control the decision of such question. There shall be no
cumulative voting for Trustees. At all meetings of Shareholders, unless the
voting is conducted by inspectors, all questions relating to the qualification
of voters and the validity of proxies and the acceptance or rejection of votes
shall be decided by the Chairman of the meeting.
Section 8. Inspectors. At any election of Trustees, the Board of Trustees
prior thereto may, or, if they have not so acted, the chairman of the meeting
may appoint one or more inspectors of election who shall first subscribe an oath
of affirmation to execute faithfully the duties of inspectors at such election
with strict impartiality and according to the best of their ability, and shall
after the election make a certificate of the result of the vote taken.
Section 9. Stock Ledger and List of Shareholders. It shall be the duty of
the secretary or assistant secretary of the Trust to cause an original or
duplicate share ledger to be maintained at the office of the Trust's transfer
agent. Such share ledger may be in written form or any other form capable of
being converted into written form within a reasonable time for visual
inspection.
Section 10. Action Without Meeting. Any action to be taken by Shareholders
may be taken without a meeting if (a) all Shareholders entitled to vote on the
matter consent to the action in writing, (b) all Shareholders entitled to notice
of the meeting but not entitled to vote at it sign a written waiver of any right
to dissent, and (c) the written consents are filed with the records of the
meeting of Shareholders. Such consent shall be treated for all purposes as a
vote at a meeting.
ARTICLE III
Trustees
Section 1. Place of Meeting. Meetings of the Board of Trustees, regular or
special, may be held at any place as the Board may from time to time determine.
Section 2. Quorum. At all meetings of the Board of Trustees, one-third of
the Trustees then in office shall constitute a quorum for the transaction of
business provided that in no case may a quorum be fewer than two persons (unless
there is only one Trustee then in office, in which case such Trustee shall
constitute a quorum). The action of a majority of the Trustees present at any
meeting at which a quorum is present shall be the action of the Board of
Trustees unless the concurrence of a greater proportion is required for such
action by the 1940 Act or the Declaration of Trust. If a quorum shall not be
present at any meeting of Trustees, the Trustees present thereat may by a
majority vote adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3. Regular Meetings. Regular meetings of the Board of Trustees may
be
held without additional notice at such time and place as shall from time to time
be determined by the Board of Trustees provided that notice of any change in the
time or place of such meetings shall be sent promptly to each Trustee not
present at the meeting at which such change was made in the manner provided for
notice of special meetings.
Section 4. Special Meetings. Special meetings of the Board of Trustees may
be called by the chairman or president on one day's notice to each Trustee;
special meetings shall be called by the chairman or president or secretary in
like manner and on like notice on the written request of two Trustees.
Section 5. Telephone Meeting. Members of the Board of Trustees or a
committee of the Board of Trustees may participate in a meeting by means of a
conference telephone or similar communications equipment if all persons
participating in the meeting can hear each other at the same time.
Section 6. Informal Actions. Any action required or permitted to be taken
at any meeting of the Board of Trustees or of any committee thereof may be taken
without a meeting, if a written consent to such action is signed by a majority
of the Trustees then in office or by a majority of the members of such
committee, as the case may be (unless, in either case, the question is one for
which by express provision of the 1940 Act or the Declaration of Trust, a
different vote is required, in which case such express provision shall control
the decision of such question). Any such written consent shall be filed with the
minutes of proceedings of the Board or committee, as applicable.
Section 7. Committees. The Board of Trustees may appoint from among its
members an Executive Committee and other committees composed of two or more
Trustees, and may delegate to such committees any or all of the powers of the
Board of Trustees in the management of the business and affairs of the Trust.
Section 8. Action of Committees. In the absence of an appropriate
resolution of the Board of Trustees, each committee may adopt such rules and
regulations governing its proceedings, quorum and manner of acting as it shall
deem proper and desirable, provided that the quorum shall not be fewer than two
Trustees. The committees shall keep minutes of their proceedings and shall
report the same to the Board of Trustees at the meeting next succeeding, and any
action by the committee shall be subject to revision and alteration by the Board
of Trustees, provided that no rights of third persons shall be affected by any
such revision or alteration. In the absence of any member of such committee, the
members thereof present at any meeting, whether or not they constitute a quorum,
may appoint a member of the Board of Trustees to act in the place of such absent
member.
ARTICLE IV
Notices
Section 1. Form. Subject to the 1940 Act, notices and all other
communications to Shareholders shall be in writing and delivered personally, or
sent by electronic transmission to an electronic mail address provided by the
Shareholder or mailed to the Shareholders at their addresses appearing on the
books of the Trust. Notices to Trustees shall be oral or by telephone or in
writing delivered personally or mailed to the Trustees at their addresses
appearing on the books of the Trust or by electronic transmission to an
electronic mail address provided by the Trustee. Notice by mail shall be deemed
to be given at the time when the same shall be mailed and notice by electronic
transmission shall be deemed given at the time when sent. Subject to the
provisions of the 1940 Act, notice to Trustees need not state the purpose of a
regular or special meeting.
Section 2. Waiver. Whenever any notice of the time, place or purpose of any
meeting of Shareholders, Trustees or a committee is required to be given under
the provisions of the Declaration of Trust or these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice and filed with
the records of the meeting, whether before or after the holding thereof, or
actual attendance at the meeting of Shareholders in person or by proxy, or at
the meeting of Trustees or a committee in person, shall be deemed equivalent to
the giving of such notice to such persons.
ARTICLE V
Officers
Section 1. Executive Officers. The officers of the Trust shall be chosen by
the Board of Trustees and shall include a chairman, president, a secretary and a
treasurer. The Board of Trustees may, from time to time, elect or appoint a
controller, one or more vice presidents, assistant secretaries, assistant
treasurers, and assistant controllers. The Board of Trustees, at its discretion,
may also appoint a Trustee as senior chairman of the Board of Trustees who shall
perform and execute such executive and administrative duties and powers as the
Board of Trustees shall from time to time prescribe. The same person may hold
two or more offices, except that no person shall be both president and vice
president and no officer shall execute, acknowledge or verify any instrument in
more than one capacity, if such instrument is required by law, the Declaration
of Trust or these By-Laws to be executed, acknowledged or verified by two or
more officers.
Section 2. Election. The Board of Trustees shall choose a chairman,
president, a secretary and a treasurer.
Section 3. Other Officers. The Board of Trustees from time to time may
appoint such other officers and agents as it shall deem advisable, who shall
hold their offices for such terms and shall exercise powers and perform such
duties as shall be determined from time to time by the Board of Trustees. The
Board of Trustees from time to time may delegate to one or more officers or
agents the power to appoint any such subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties.
Section 4. Compensation. The salaries or other compensation of all officers
and agents of the Trust shall be fixed by the Board of Trustees, except that the
Board of Trustees may delegate to any person or group of persons the power to
fix the salary or other compensation of any subordinate officers or agents
appointed pursuant to Section 3 of this Article V.
Section 5. Tenure. The officers of the Trust shall serve at the pleasure of
the Board of Trustees. Any officer or agent may be removed by the affirmative
vote of the Board of Trustees with or without cause whenever, in its judgment,
the best interests of the Trust will be served thereby. In addition, any officer
or agent appointed pursuant to Section 3 may be removed, either with or without
cause, by any officer upon whom such power of removal shall have been conferred
by the Board of Trustees. Any vacancy occurring in any office of the Trust by
death, resignation, removal or otherwise shall be filled by the Board of
Trustees, unless pursuant to Section 3 the power of appointment has been
conferred by the Board of Trustees on any other officer.
Section 6. President and Chief Executive Officer. The president shall be
the chief executive officer of the Trust, unless the Board of Trustees
designates the chairman as chief executive officer. The chief executive officer
shall see that all orders and resolutions of the Board of Trustees are carried
into effect. The chief executive officer shall also be the chief administrative
officer of the Trust and shall perform such other duties and have such other
powers as the Board of Trustees may from time to time prescribe.
Section 7. Chairman. The chairman of the Board of Trustees shall perform
and execute such duties and administrative powers as the Board of Trustees shall
from time to time prescribe.
Section 8. Senior Chairman of the Board. The senior chairman of the Board
of Trustees, if one shall be chosen, shall perform and execute such executive
duties and administrative powers as the Board of Trustees shall from time to
time prescribe.
Section 9. Vice President. The vice presidents, in order of their
seniority, shall, in the absence or disability of the chief executive officer,
perform the duties and exercise the powers of the chief executive officer and
shall perform such other duties as the Board of Trustees or the chief executive
officer may from time to time prescribe.
Section 10. Secretary. The secretary shall attend all meetings of the Board
of Trustees and all meetings of the Shareholders and record all the proceedings
thereof and shall perform like duties for any committee when required. He shall
give, or cause to be given, notice of meetings of the Shareholders and of the
Board of Trustees, shall have charge of the records of the Trust, including the
stock books, and shall perform such other duties as may be prescribed by the
Board of Trustees or chief executive officer, under whose supervision he shall
be. He shall keep in safe custody the seal of the Trust and, when authorized by
the Board of Trustees, shall affix and attest the same to any instrument
requiring it. The Board of Trustees may give general authority to any other
officer to affix the seal of the Trust and to attest the affixing by his
signature.
Section 11. Assistant Secretaries. The assistant secretaries in order of
their seniority, shall, in the absence or disability of the secretary, perform
the duties and exercise the powers of the secretary and shall perform such other
duties as the Board of Trustees or the chief executive officer shall prescribe.
Section 12. Treasurer. The treasurer, unless another officer has been so
designated, shall be the chief financial officer of the Trust. He shall have
general charge of the finances and books of account of the Trust. Except as
otherwise provided by the Board of Trustees, he shall have general supervision
of the funds and property of the Trust and of the performance by the custodian
of its duties with respect thereto. He shall render to the Board of Trustees,
whenever directed by the Board of Trustees, an account of the financial
condition of the Trust and of all his transactions as treasurer. He shall cause
to be prepared annually a full and correct statement of the affairs of the
Trust, including a balance sheet and a statement of operations for the preceding
fiscal year. He shall perform all of the acts incidental to the office of
treasurer, subject to the control of the Board of Trustees or the chief
executive officer.
Section 13. Assistant Treasurer. The assistant treasurer shall in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties as the Board of
Trustees or the chief executive officer may from time to time prescribe.
ARTICLE VI
Indemnification and Insurance
Section 1. Agents, Proceedings and Expenses. For the purpose of this
Article, "agent" means any person who is or was a Trustee or officer of this
Trust and any person who, while a Trustee or officer of this Trust, is or was
serving at the request of this Trust as a Trustee, director, officer, partner,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise; "Trust" includes any domestic or
foreign predecessor entity of this Trust in a merger, consolidation, or other
transaction in which the predecessor's existence ceased upon consummation of the
transaction; "proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative;
and "expenses" includes without limitation attorney's fees and any expenses of
establishing a right to indemnification under this Article.
Section 2. Actions Other Than by Trust. This 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 this Trust) by reason of
the fact that such person is or was an agent of this Trust, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with such proceeding, if it is determined that person acted in
good faith and reasonably believed: (a) in the case of conduct in his official
capacity as an agent of the Trust, that his conduct was in the Trust's best
interests and (b) in all other cases, that his conduct was at least not opposed
to the Trust's best interests and (c) in the case of a criminal proceeding, that
he had no reasonable cause to believe the conduct of that person was unlawful.
The termination of any proceeding by judgment, order or settlement shall not of
itself create a presumption that the person did not meet the requisite standard
of conduct set forth in this Section. 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 meet the requisite standard of conduct set forth in this Section.
Section 3. Actions by the Trust. This Trust shall indemnify any person who
was or is a party or is threatened to be made a party to any proceeding by or in
the right of this Trust to procure a judgment in its favor by reason of the fact
that that person is or was an agent of this 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, in a manner that person
believed to be in the best interests of this Trust and with such care, including
reasonable inquiry, as an ordinarily prudent person in a like position would use
under similar circumstances.
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 this Trust.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a) In respect of any proceeding 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
(b) In respect of any proceeding as to which that person shall have
been adjudged to be liable in the performance of that person's duty to this
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
relevant circumstances of the case, that person is fairly and reasonably
entitled to indemnity for the expenses which the court shall determine;
however, in such case, indemnification with respect to any proceeding by or
in the right of the Trust or in which liability shall have been adjudged by
reason of the disabling conduct set forth in the preceding paragraph shall
be limited to expenses; or
(c) Of amounts paid in settling or otherwise disposing of a
proceeding, with or without court approval, or of expenses incurred in
defending a proceeding 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 this
Trust has been successful, on the merits or otherwise, in the defense of any
proceeding referred to in Sections 2 or 3 of this Article 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 this 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 Trustees who are not
parties to the proceeding and are not interested persons of the Trust (as
defined in the 1940 Act);
(b) A written opinion by an independent legal counsel; or
(c) The Shareholders; however, Shares held by agents who are parties
to the proceeding may not be voted on the subject matter under this
Sub-Section.
Section 7. Advance of Expenses. Expenses incurred in defending any
proceeding may be advanced by this Trust before the final disposition of the
proceeding if (a) receipt of a written affirmation by the agent of his good
faith belief that he has met the standard of conduct necessary for
indemnification under this Article and a written undertaking by or on behalf of
the agent, such undertaking being an unlimited general obligation to repay the
amount of the advance if it is ultimately determined that he has not met those
requirements, and (b) a determination that the facts then known to those making
the determination would not preclude indemnification under this Article.
Determinations and authorizations of payments under this Section must be made in
the manner specified in Section 6 of this Article for determining that the
indemnification is permissible.
Section 8. Other Contractual Rights. Nothing contained in this Article
shall affect any right to indemnification to which persons other than Trustees
and officers of this Trust or any subsidiary hereof may be entitled by contract
or otherwise.
Section 9. Limitations. No indemnification or advance shall be made under this
Article, except as provided in Sections 5 or 6 in any circumstances where it
appears:
(a) That it would be inconsistent with a provision of the Agreement
and Declaration of Trust of the Trust, a resolution of the Shareholders, or
an agreement 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 which prohibits or otherwise limits
indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 10. Insurance. Upon and in the event of a determination by the
Board of Trustees of this Trust to purchase such insurance, this Trust shall
purchase and maintain insurance on behalf of any agent or employee of this Trust
against any liability asserted against or incurred by the agent or employee in
such capacity or arising out of the agent's or employee's status as such to the
fullest extent permitted by law.
Section 11. 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 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
Shares of Beneficial Interest
Section 1. Certificates. A certificate or certificates representing and
certifying the series or class and the full, but not fractional, number of
Shares of beneficial interest owned by each Shareholder in the Trust shall not
be issued except as the Board of Trustees may otherwise determine from time to
time. Any such certificate issued shall be signed by facsimile signature or
otherwise by the chairman or president or a vice president and counter-signed by
the secretary or an assistant secretary or the treasurer or an assistant
treasurer.
Section 2. Signature. In case any officer who has signed any certificate
ceases to be an officer of the Trust before the certificate is issued, the
certificate may nevertheless be issued by the Trust with the same effect as if
the officer had not ceased to be such officer as of the date of its issue.
Section 3. Recording and Transfer Without Certificates. The Trust shall
have the full power to participate in any program approved by the Board of
Trustees providing for the recording and transfer of ownership of the Trust's
Shares by electronic or other means without the issuance of certificates.
Section 4. Lost Certificates. The Board of Trustees may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Trust alleged to have been stolen, lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to have been stolen, lost or destroyed, or
upon other satisfactory evidence of such theft, loss or destruction and may in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such stolen, lost or destroyed certificate or certificates, or his
legal representative, to give the Trust a bond with sufficient surety, to the
Trust to indemnify it against any loss or claim that may be made by reason of
the issuance of a new certificate.
Section 5. Transfer of Shares. Transfers of Shares of beneficial interest
of the Trust shall be made on the books of the Trust by the holder of record
thereof (in person or by his attorney thereunto duly authorized by a power of
attorney duly executed in writing and filed with the secretary of the Trust) (i)
if a certificate or certificates have been issued, upon the surrender of the
certificate or certificates, properly endorsed or accompanied by proper
instruments of transfer, representing such Shares, or (ii) as otherwise
prescribed by the Board of Trustees. Every certificate exchanged, surrendered
for redemption or otherwise returned to the Trust shall be marked "Canceled"
with the date of cancellation.
Section 6. Registered Shareholders. The Trust shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of Shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
Shares, and 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
it shall have express or other notice thereof, except as otherwise provided by
applicable law or the Declaration of Trust.
Section 7. Transfer Agents and Registrars. The Board of Trustees may, from
time to time, appoint or remove transfer agents and or registrars of the Trust,
and they may appoint the same person as both transfer agent and registrar. Upon
any such appointment being made, all certificates representing Shares of
beneficial interest thereafter issued shall be countersigned by such transfer
agent and shall not be valid unless so countersigned.
Section 8. Stock Ledger. The Trust shall maintain an original stock ledger
containing the names and addresses of all Shareholders and the number and series
or class of Shares held by each Shareholder. Such stock ledger may be in written
form or any other form capable of being converted into written form within
reasonable time for visual inspection.
ARTICLE VIII
General Provisions
Section 1. Custodianship. Except as otherwise provided by resolution of the
Board of Trustees, 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 owned by the Trust. Subject to the
approval of the Board of Trustees, the custodian may enter into arrangements
with securities depositories, provided such arrangements comply with the
provisions of the 1940 Act and the rules and regulations promulgated thereunder.
Section 2. Execution of Instruments. All deeds, documents, transfers,
contracts, agreements and other instruments requiring execution by the Trust may
be signed by the chairman or president or a vice president or the treasurer or
the secretary or any other duly authorized officer or agent of the Trust, which
authority may be general or specific.
Section 3. Net Asset Value. Subject to Section 1 of Article VI of the
Declaration of Trust, the net asset value per Share shall be determined
separately as to each series or class of the Trust's Shares, by dividing the sum
of the total market value of the series' or class's investments and other
assets, less any liabilities, by the total outstanding Shares of such series or
class, subject to the 0000 Xxx and any other applicable Federal securities law
or rule or regulation currently in effect.
ARTICLE IX
Amendments
The Board of Trustees, without a vote by the Shareholders, shall have the
power to make, alter and repeal the By-Laws of the Trust.
