BY-LAWS
OF
XXXXXXX CAPITAL MUTUAL FUND GROUP
Section 1. Agreement and Declaration of Trust and Principal Office
1.1 Agreement and Declaration of Trust. These By-Laws shall be subject to
the Agreement and Declaration of Trust, as from time to time in effect
(the "Declaration of Trust"), of Xxxxxxx Capital Mutual Fund Group, a
Massachusetts business trust established by the Declaration of Trust
(the "Trust").
1.2 Principal Office of the Trust. The principal office of the Trust shall
be located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 2. Shareholders
2.1 Annual Meeting. The Trust will not hold annual meetings of the
shareholders.
2.2 Special Meetings. A special meeting of the Shareholders of the Trust or
of any series or class may be called at any time by the Trustees, by
the President or such other person or persons as may be specified in
these By-Laws, and held from time to time for the purpose of taking
action upon any matter requiring the vote or the authority of the
Shareholders of the Trust or any series or class as herein provided or
upon any other matter deemed by the Trustees to be necessary or
desirable. Each call of a meeting shall state the place, date, hour and
purposes of the meeting. If the Trustees shall fail to call or give
notice of any meeting of Shareholders for a period of thirty days after
written application by Shareholders holding at least 10% of the Shares
then outstanding requesting a meeting to be called for a purpose
requiring action by the Shareholders as provided herein, then
Shareholders holding at least 10% of the Shares then outstanding may
call and give notice of such meeting, and thereupon the meeting shall
be held in the manner provided for herein in case of call thereof by
the Trustees. Notice of a meeting need not be given to any Shareholder
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
Shareholder who attends the meeting without protesting prior thereto or
at its commencement the lack of notice to him or her.
2.3 Place of Meetings. All meetings of the shareholders shall be held at
such place within the United States as shall be designated by the
Trustees or the President of the Trust.
2.4 Notice of Meetings. A written notice of each meeting of shareholders,
stating the place, date and hour and the purposes of the meeting, shall
be given to each shareholder entitled to vote thereat by leaving such
notice with him or at his residence or usual place of business or by
mailing it, postage prepaid, and addressed to such shareholder at his
address as it appears in the records of the Trust at least seven days
before the meeting. Such notice shall be given by the Secretary or an
Assistant Secretary or by an officer designated by the Trustees. No
notice of any meeting of shareholders need be given to a shareholder if
a written waiver of notice, executed before or after the meeting by
such shareholder or his attorney thereunto duly authorized, is filed
with the records of the meeting.
2.5 Voting Power. Each whole Share held entitles the holder of record to
one vote as to any matter on which the holder is entitled to vote and
each fractional Share shall be entitled to a proportionate fractional
vote. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy.
2.6 Quorum and Required Vote. A majority in interest of the Shares entitled
to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of the
Declaration of Trust permits or requires that holders of any series or
class shall vote as a series or class, then a majority in interest of
the Shares of that series or class entitled to vote shall be necessary
to constitute a quorum for the transaction of business by that series
or class. Any lesser number, however, shall be sufficient for
adjournments. Any adjourned session or sessions may be held within a
reasonable time after the date set for the original meeting without the
necessity of further notice.
Except when a larger vote is required by law, or by any provisions of
the Declaration of Trust or these By-Laws, a majority in interest of
the Shares voted on any matter shall decide such matter and a plurality
shall elect a Trustee, provided that where any provision of law or of
this Declaration of Trust permits or requires that the holders of any
series or class shall vote as a series or class, then a majority in
interest of the Shares of that series or class voted on the matter
shall decide that matter insofar as that series or class is concerned.
A majority in interest shall mean 50.1% or more of total votes
represented by all Shares entitled to vote and present at the meeting
either in person or by proxy.
2.7 Ballots. No ballot shall be required for any election unless requested
by a shareholder present or represented at the meeting and entitled to
vote in the election.
2.8 Proxies. Shareholders entitled to vote may vote either in person or by
proxy in writing dated not more than six months before the meeting
named therein, which proxies shall be filed with the Secretary or other
person responsible to record the proceedings of the
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meeting before being voted. Unless otherwise specifically limited by
their terms, such proxies shall entitle the holders thereof to vote at
any adjournment of such meeting but shall not be valid after the final
adjournment of such meeting.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the
exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by
or on behalf of a Shareholder shall be deemed valid unless challenged
at or prior to its exercise and the burden of proving invalidity shall
rest on the challenger.
2.9 Action by Written Consent. Any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote
on the matter (or such larger vote as shall be required by any
provision of the Declaration of Trust or these By-Laws) consent to the
action in writing and such written consents are filed with the records
of the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
Section 3. Trustees
3.1 Regular Meetings. Regular meetings of the Trustees may be held without
call or notice at such places and at such times as the Trustees may
from time to time determine, provided that notice of the first regular
meeting following any such determination shall be given to absent
Trustees. A regular meeting of the Trustees may be held without call or
notice immediately after and at the same place as the annual meeting of
the shareholders.
3.2 Special Meetings. Special meetings of the Trustees may be held at any
time and at any place designated in the call of the meeting, when
called by the Chairman of the Board, the President or the Treasurer or
by two or more Trustees, sufficient notice thereof being given to each
Trustee by the Secretary or an Assistant Secretary or by the officer or
one of the Trustees calling the meeting.
3.3 Notice. It shall be sufficient notice to a Trustee of a special meeting
to send notice by mail at least 48 hours before the meeting or by
telegram, facsimile, or overnight courier service at least 24 hours
before the meeting addressed to the Trustee at his or her usual or last
known business or residence address or to give notice to him or her in
person or by telephone or video at least 24 hours before the meeting.
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. Neither notice of a meeting nor a waiver
of a notice need specify the purposes of the meeting.
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3.4 Quorum. At any meeting of the Trustees one-third of the Trustees then
in office shall constitute a quorum; provided, however, a quorum shall
not be less than two. Any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned without further
notice.
3.5 Committees. The Trustees may appoint from their number an executive
committee and other committees, each of which shall consist of two or
more Trustees. Except as the Trustees may otherwise determine, any such
committee may make rules for conduct of its business. A committee shall
have and may exercise all the power and authority of the Board with
respect to all xxxxxx other than as set forth in 3.6 of this Section 3.
3.6 Limitation of Committee Powers. No committee of the Board shall have
power or authority to:
(a) recommend to shareholders any action requiring authorization
of shareholders pursuant to statute or the Agreement and
Declaration of Trust;
(b) approve or terminate any contract with an investment adviser
or principal underwriter, as such terms are defined in the
Investment Company Act of 1940 ("1940 Act"), or take any other
action required to be taken by the Board of Trustees by the
1940 Act;
(c) amend or repeal these Bylaws or adopt new Bylaws;
(d) declare dividends or other distributions or issue capital
stock of the Trust; and
(e) approve any merger, division or share exchange which does not
require shareholder approval.
3.7 Committee Meetings and Appointments. One-third, but not less than two
members, of the members of any committee shall be present in person at
any meeting of such committee in order to constitute a quorum for the
transaction of business at such meeting, and the act of a majority
present shall be the act of such committee. The Board may designate a
chairman of any committee and such chairman or any two members of any
committee may fix the time and place of its meetings unless the Board
shall otherwise provide. In the absence or disqualification of any
member or any committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the
Board of Trustees to act at the meeting in the place of any such absent
or disqualified member. The Board shall have the power at any time to
change the membership of any committee, to fill all vacancies, to
designate alternate members, to replace any absent or disqualified
member, or to dissolve any such committee.
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All committees shall keep written minutes of their proceedings and
shall report such minutes to the Board. All such proceedings shall be
subject to revision or alteration by the Board; if third parties shall
not be prejudiced by such revision or alteration.
3.8 Presence through Communications Equipment. Except as required by law,
the Board and any committee may, except as otherwise required by law,
the Agreement and Declaration of Trust, or these By-laws, hold any
meeting by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting
can hear each other at the same time. Participation by such means shall
constitute presence in person at such meeting.
Section 4. Officers and Agents
4.1 Enumeration; Qualification. The officers of the Trust shall be a
President, a Treasurer, a Secretary and such other officers, if any, as
the Trustees from time to time may in their discretion elect or
appoint. The Trust may also have such agents, if any, as the Trustees
from time to time may in their discretion appoint. Any officer may be,
but none need be, a Trustee or shareholder. Any two or more offices may
be held by the same person.
4.2 Powers. Subject to the other provisions of these By-Laws, each officer
shall have, in addition to the duties and powers herein and in the
Declaration of Trust set forth, such duties and powers as are commonly
incident to his or her office as if the Trust were organized as a
Massachusetts business corporation and such other duties and powers as
the Trustees may from time to time designate.
4.3 Election. The President, the Treasurer and the Secretary shall be
elected annually by the Trustees. Other officers, if any, may be
elected or appointed by the Trustees at any time.
4.4 Tenure. The President, the Treasurer, the Secretary, and any other
officers elected by the Trustees shall hold office until their
respective successors are chosen and qualified, or in each case until
he or she sooner dies, resigns, is removed or becomes disqualified.
Each officer shall hold office and each agent shall retain his or her
authority at the pleasure of the Trustees.
4.5 President and Vice Presidents. The President shall be the chief
executive officer of the Trust. The President shall, subject to the
control of the Trustees, have general charge and supervision of the
business of the Trust. Any Vice President shall have such duties and
powers as shall be designated from time to time by the Trustees.
4.6 Chairman of the Board. If a Chairman of the Board of Trustees is
elected, he or she shall have the duties and powers specified in these
By-Laws and have such other duties and powers as may be determined by
the Trustees.
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4.7 Treasurer and Assistant. The Treasurer shall be the chief financial
officer of the Trust and subject to any arrangement made by the
Trustees with a bank or trust company or other organization as
custodian or transfer or shareholder services agent, shall be in charge
of its valuable papers and shall have such other duties and powers as
may be designated from time to time by the Trustees or by the
President. If at any time there shall be no Assistant, the Treasurer
shall also be the chief accounting officer of the Trust and shall have
the duties and powers prescribed the Trust and shall have the duties
and powers prescribed herein for the Assistant. Any Assistant Treasurer
shall have such duties and powers as shall be designated from time to
time by the Trustees.
The Assistant, if any be elected, shall be the chief accounting officer
of the Trust and shall be in charge of its books of account and
accounting records. The Assistant shall be responsible for preparation
of financial statements of the Trust and shall have such other duties
and powers as may be designated from time to time by the Trustees or
the President.
4.8 Secretary and Assistant Secretaries. The Secretary shall record all
proceedings of the shareholders and the Trustees in books to be kept
therefor, which books shall be kept at the principal office of the
Trust. In the absence of the Secretary from any meeting of shareholders
or Trustees, an Assistant Secretary, or if there be none or he or she
is absent, a temporary clerk chosen at the meeting shall record the
proceedings thereof in the aforesaid books.
Section 5. Resignation and Removals
Any Trustee or officer may resign at any time by delivering his or her
resignation in writing to the Chairman of the Board, the President, the
Treasurer or the Secretary or to a meeting of the Trustees. The Trustees may
remove any officer elected by them with or without cause by the vote of a
majority of the Trustees then in office. Except to the extent expressly provided
in a written agreement with the Trust, no Trustee or officer resigning, and no
officer removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages on account
of such removal.
Section 6. Vacancies
A vacancy in any office may be filled at any time. Each successor shall hold
office for the unexpired term, and in the case of the President, the Treasurer
and the Secretary, until his or her successor is chosen and qualified, or in
each case until he or she sooner dies, resigns, is removed or becomes
disqualified.
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Section 7. Shares of Beneficial Interest
In lieu of issuing certificates for shares, the Trustees or the transfer or
shareholder services agent may either issue receipts therefor or may keep
accounts upon the books of the Trust for the record holders of such shares, who
shall in either case be deemed, for all purposes hereunder, to be the holders of
certificates for such shares as if they had accepted such certificates and shall
be held to have expressly assented and agreed to the terms hereof.
Section 8. Record Date
The Trustees may fix in advance a time, which shall not be more than 90 days
before the date of any meeting of shareholders or the date for the payment of
any dividend or making of any other distribution to shareholders, as the record
date for determining the shareholders having the right to notice and to vote at
such meeting and any adjournment thereof or the right to receive such dividend
or distribution, and in such case only shareholders of record on such record
date shall have such right, notwithstanding any transfer of shares on the books
of the Trust after the record date.
Section 9. Seal
The seal of the Trust shall, subject to alteration by the Trustees, consist of a
flat-faced circular die with the word "Massachusetts", together with the name of
the Trust and the year of its organization, cut or engraved thereon; but, unless
otherwise required by the Trustees, the seal shall not be necessary to be placed
on, and its absence shall not impair the validity of, any document, instrument
or other paper executed and delivered by or on behalf of the Trust.
Section 10. Execution of Papers
Except as the Trustees may generally or in particular cases authorize the
execution thereof in some other manner, all deeds, leases, transfers, contracts,
bonds, notes, checks, drafts and other obligations made, accepted or endorsed by
the Trust shall be signed, and any transfers of securities standing in the name
of the Trust shall be executed, by the President or by one of the Vice
Presidents or by the Treasurer or by whomsoever else shall be designated for
that purpose by the vote of the Trustees and need not bear the seal of the
Trust.
Section 11. Fiscal Year
The fiscal year of the Trust shall end on such date in each year as the Trustees
shall from time to time determine.
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Section 12. Provisions Relating to the Conduct of the Trust's Business
12.1 Dealings with Affiliates. No officer, Trustee or agent of the Trust and
no officer, director or agent of any investment adviser shall deal for
or on behalf of the Trust with himself as principal or agent, or with
any partnership, association or corporation in which he has a material
financial interest; provided that the foregoing provisions shall not
prevent (a) officers and Trustees of the Trust from buying, holding or
selling shares in the Trust, or from being partners, officers or
directors of or financially interested in any investment adviser to the
Trust or in any corporation, firm or association which may at any time
have a distributor's or principal underwriter's contract with the
Trust; (b) purchases or sales of securities or other property, if such
transaction is permitted by or is exempt or exempted from the
provisions of the Investment Company Act of 1940 or any Rule or
Regulation thereunder, and if such transaction does not involve any
commission or profit to any securities dealer who is, or one or more of
whose partners, shareholders, officers or directors is, an officer or
Trustee of the Trust or an officer or director of the investment
adviser, administrator or principal underwriter of the Trust; (c)
employment of legal counsel, registrar, transfer agent, shareholder
services, dividend disbursing agent or custodian who is, or has a
partner, stockholder, officer or director who is, an officer or Trustee
of the Trust; or (d) sharing statistical, research and management
expenses, including rent, personnel and services, with any other
company in which an officer or Trustee of the Trust is an officer or
director or financially interested.
12.2 Dealing in Securities of the Trust. The Trust, the investment adviser,
any corporation, firm or association which may at any time have an
exclusive distributor's or principal underwriter's contract with the
Trust (the "distributor") and the officers and Trustees of the Trust
and officers and directors of every investment adviser and distributor,
shall not take long or short positions in the securities of the Trust,
except that:
(a) the distributor may place orders with the Trust for its shares
equivalent to orders received by the distributor;
(b) shares of the Trust may be purchased at not less than net
asset value for investment by the investment adviser and by
officers and directors of the distributor, investment adviser,
or the Trust and by any trust, pension, profit-sharing or
other benefit plan for such persons, no such purchase to be in
contravention of any applicable state or federal requirement.
12.3 Limitation on Certain Loans. The Trust shall not make loans to any
officer, Trustee or employee of the Trust or any investment adviser or
distributor or their respective officers, directors or partners or
employees.
12.4 Custodian. All securities and cash owned by the Trust shall be
maintained in the custody of one or more banks or trust companies
having (according to its last published report)
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not less than two million dollars ($2,000,000) aggregate capital,
surplus and undivided profits (any such bank or trust company is
hereinafter referred to as the "custodian"). The custodian may deliver
securities as collateral on borrowings effected by the Trust, provided
that such delivery shall be conditioned upon receipt of the borrowed
funds by the custodian except where additional collateral is being
pledged on an outstanding loan, and the custodian may deliver
securities lent by the Trust against receipt of initial collateral
specified by the Trust. Subject to such rules, regulations and orders,
if any, as the Securities and Exchange Commission may adopt, the Trust
may, or may permit any custodian to, deposit all or any part of the
securities owned by the Trust in a system for the central handling of
securities operated by the Federal Reserve Banks, or established by a
national securities exchange or national securities association
registered with said Commission under the Securities Exchange Act of
1934, or such other person as may be permitted by said Commission,
pursuant to which system all securities of any particular class or
series of any issue deposited with the system are treated as fungible
and may be transferred or pledged by bookkeeping entry, without
physical delivery of such securities.
The Trust shall upon the resignation or inability to serve of its
custodian or upon change of the custodian:
(a) in the case of such resignation or inability to serve, use its
best efforts to obtain a successor custodian;
(b) require that the cash and securities owned by this corporation
be delivered directly to the successor custodian; and
(c) in the event that no successor custodian can be found, submit
to the shareholders, before permitting delivery of the cash
and securities owned by the Trust otherwise than to a
successor custodian, the question whether or not the Trust
shall be liquidated or shall function without a custodian.
12.5 Limitations on Investment. Each series of Shares may not invest in
securities other than those described in the Trust's then current
prospectus as appropriate for the series of Shares for which such
securities are being purchased.
12.6 Determination of Net Asset Value. Determinations of net asset value
made in good faith shall be binding on all parties concerned.
The term "net asset value" with respect to shares of any series shall
mean that amount by which the assets of that series exceed its
liabilities, all as determined by or under the direction of the
Trustees. Such value shall be determined on such days and at such times
as the Trustees may determine. Such determination shall be made with
respect to securities for which market quotations are readily
available, at the market value of such securities; and with respect to
other securities and assets, at the fair value as determined
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in good faith by the Trustees, provided, however, that the Trustees,
without Shareholder approval, may alter the method of appraising
portfolio securities insofar as permitted under the 1940 Act and
interpretations thereof adopted or issued by the Commission or insofar
as permitted by any order of the Commission. The Trustees may delegate
any powers and duties under this Section 12.6 with respect to appraisal
of assets and liabilities. At any time the Trustees may cause the value
per Share last determined to be determined again in similar manner and
may fix the time when such redetermined value shall become effective.
12.7 Reports to Shareholders; Distributions from Realized Gains. The Trust
shall send to each shareholder of record at least annually a statement
of the condition of the Trust and of the results of its operation,
containing all information required by applicable laws or regulations.
Section 13. Amendments
These By-Laws may be amended or repealed, in whole or in part, by a majority of
the Trustees then in office at any meeting of the Trustees, or by one or more
writings signed by such majority.
Adopted this ____ day of ______________, 1997.
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