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
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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
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 SPECIALIZED FUNDS
These By-Laws of Vanguard Specialized 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 February and end on the last day of January.
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.
