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.
[Signature Page Follows]
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
-------------------------------- --------------------------------
Xxxx X. Xxxxxxx XxXxx Xxxxxxxxx Xxxxxx
Trustee Trustee
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxx Xxxxx Xxxxxx
Trustee Trustee
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx, Xx.
Trustee Trustee
/s/ Xxxxx X. Xxxxx /s/ J. Xxxxxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx J. Xxxxxxxx Xxxxxx
Trustee Trustee
/s/ Xxx Xxxxxxx
--------------------------------
Xxx Xxxxxxx
Trustee
ATTACHMENT A
LIST OF TRUSTS
Vanguard Admiral Funds Vanguard Bond Index Funds
Vanguard CMT Funds Vanguard California Tax-Free Funds
Vanguard Xxxxxxx Funds Vanguard Convertible Securities Fund
Vanguard Explorer Fund Vanguard Fenway Funds
Vanguard Fixed Income Securities Funds Vanguard Florida Tax-Free Funds
Vanguard Horizon Funds Vanguard Index Funds
Vanguard Institutional Index Funds Vanguard International Equity Index Funds
Vanguard Malvern Funds Vanguard Massachusetts Tax-Exempt Funds
Vanguard Money Market Reserves Vanguard Xxxxxxxxxx Funds
Vanguard Xxxxxx Growth Fund Vanguard Municipal Bond Funds
Vanguard New Jersey Tax-Free Funds Vanguard New York Tax-Free Funds
Vanguard Ohio Tax-Free Funds Vanguard Pennsylvania Tax-Free Funds
Vanguard Quantitative Funds Vanguard STAR Funds
Vanguard Specialized Funds Vanguard Tax-Managed Funds
Vanguard Treasury Fund Vanguard Trustees' Equity Fund
Vanguard Valley Forge Funds Vanguard Variable Insurance Funds
Vanguard Wellesley Income Fund Vanguard Wellington Fund
Vanguard Whitehall Funds Vanguard Windsor Funds
Vanguard World Fund
ATTACHMENT B
Amended and Restated Agreement and Declaration of Trust and By-Laws of
each Trust
AMENDED AND RESTATED
BY-LAWS
OF
VANGUARD XXXXXXX FUNDS
(FORMERLY VANGUARD PRIMECAP FUND)
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. 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 Investment Company Act of 1940 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 a majority of 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 Investment Company Act of 1940.
SECTION 4. NOTICE. Not less than ten, nor more than ninety days before the
date of every Annual or Special Shareholders Meeting, the Secretary shall cause
to be mailed (including via electronic delivery) to the shareholders entitled to
vote at such meeting at their addresses (as such addresses appear on the records
of the Trust at the time of mailing) written notice stating the time and place
of the meeting and, in the case of a Special Meeting of Shareholders, shall be
limited to the purposes stated in the 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.
SECTION 5. RECORD DATE FOR MEETINGS. Subject to the provisions of the
Declaration of Trust, the Board of Trustees may fix in advance a date not more
than ninety, 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 Investment Company
Act of 1940 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, 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.
-2-
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
Bylaws as of the record date for such meeting set pursuant to Section 5. There
shall be no cumulative voting in the election of trustees. Votes may be made in
person or by proxy.
At all meetings of the shareholders, a quorum being present, all matters shall
be decided by majority of the votes entitled to be cast held by shareholders
present in person or by proxy, unless the question is one for which by express
provision of the laws of the State of Delaware, the Investment Company Act of
1940, as from time to time amended, or the Declaration of Trust, a different
vote is required, in which case such express provision shall control the
decision of such question. 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, and (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.
-3-
ARTICLE III
TRUSTEES
SECTION 1. GENERAL POWERS. The business of the Trust shall be managed under
the direction of its Board of Trustees, which may exercise all powers of the
Trust, except such as are by statute, or the Declaration of Trust, or by these
Bylaws conferred upon or reserved to the shareholders.
SECTION 2. NUMBER AND TERM OF OFFICE. The number of trustees which shall
constitute the whole Board shall be determined from time to time by the Board of
Trustees, but shall not be fewer than the minimum number permitted by applicable
laws, nor more than fifteen. Each trustee elected shall hold office until his
successor is elected and qualified. Trustees need not be shareholders.
SECTION 3. ELECTIONS. Provided a quorum is present, the trustees shall be
elected by the vote of a plurality of the votes present in person or by proxy,
except that any vacancy on the Board of Trustees may be filled by a majority
vote of the Board of Trustees, although less than a quorum, subject to the
requirements of Section 16(a) of the Investment Company Act of 1940.
SECTION 4. 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 5. QUORUM. At all meetings of the Board of Trustees, one-third of
the entire Board of Trustees shall constitute a quorum for the transaction of
business provided that in no case may a quorum be less than two persons. 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 Investment Company Act of
1940, these Bylaws 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 6. 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.
-4-
SECTION 7. 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 8. 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 9. 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 all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board or committee.
SECTION 10. COMMITTEES. The Board of Trustees may by resolution passed by a
majority of the entire Board appoint from among its members an Executive
Committee and other committees composed of two or more trustees, and may
delegate to such committees, in the intervals between meetings of the Board of
Trustees, any or all of the powers of the Board of Trustees in the management of
the business and affairs of the Trust.
SECTION 11. 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 less 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.
SECTION 12. COMPENSATION. Any trustee, whether or not he is a salaried
officer or employee of the Trust, may be compensated for his services as trustee
or as a member of a committee of trustees, or as chairman of a committee by
fixed periodic payments or by fees for attendance at meetings or by both, and in
addition may be reimbursed for transportation and other expenses, all in such
manner and amounts as the Board of Trustees may from time to time determine.
-5-
ARTICLE IV
NOTICES
SECTION 1. FORM. Notices to shareholders shall be in writing and delivered
personally or mailed (including via electronic delivery) to the shareholders at
their addresses appearing on the books of the Trust. Notices to trustees shall
be oral or by telephone or telegram or in writing delivered personally or mailed
(including via electronic delivery) to the trustees at their addresses appearing
on the books of the Trust. Notice by mail shall be deemed to be given at the
time when the same shall be mailed (including via electronic delivery). Subject
to the provisions of the Investment Company Act of 1940, 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 Bylaws, 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 and Assistant
Treasurers. The Board of Trustees, at its discretion, may also appoint a trustee
as Senior Chairman of the Board 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 Bylaws to be
executed, acknowledged or verified by two or more officers.
-6-
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. 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 a majority of the Board of Trustees 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 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 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,
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.
-7-
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 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, 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 the acts incidental to the office of Treasurer, subject to the
control of the Board of Trustees.
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 may from time to time prescribe.
-8-
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.
-9-
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.
-10-
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 Investment Company Act of 1940);
(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
-11-
(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 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.
-12-
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 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.
-13-
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 Investment Company Act of 1940 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
shall be signed by the Chairman or President or a Vice President.
SECTION 3. NET ASSET VALUE. The net asset value per share shall be
determined separately as to each class of the Trust's shares, by dividing the
sum of the total market value of the class's investments and other assets, less
any liabilities, by the total outstanding shares of such class, subject to the
Investment Company Act of 1940 and any other applicable Federal securities law
or rule or regulation currently in effect.
ARTICLE IX
AMENDMENTS
The Board of Trustees shall have the power to make, alter and repeal the
Bylaws of the Trust.
-14-
