Exhibit 23(2)
BY-LAWS
of
LSA Variable Series Trust
A Delaware Business Trust
TABLE OF CONTENTS
BY-LAWS
ARTICLE I...........................................................................1
Agreement And Declaration of Trust.........................................1
Definitions................................................................1
ARTICLE II..........................................................................1
Principal Office...........................................................1
Delaware Offices...........................................................1
Other Offices..............................................................1
ARTICLE III.........................................................................1
Place of Meetings..........................................................1
Annual Meetings............................................................1
Special Meetings...........................................................2
Call of Meeting............................................................2
Notice of Shareholders' Meeting............................................3
Manner of Giving Notice; Affidavit.........................................3
Adjourned Meeting..........................................................3
Voting ....................................................................4
Waiver of Notice by Consent of Absent Shareholders.........................4
Shareholder Action by Written Consent Without a Meeting....................4
Record Date For Shareholder Notice, Voting And Giving Consents.............5
Proxies ..................................................................5
Inspectors of Election.....................................................6
Conduct of Meetings........................................................6
ARTICLE IV..........................................................................7
Powers ...................................................................7
Number And Qualification of Trustees.......................................7
Vacancies..................................................................7
Place of Meetings And Meetings by Telephone................................8
Regular Meetings...........................................................8
Special Meetings...........................................................8
Quorum .................................................................. 8
Waiver of Notice...........................................................9
Adjournment................................................................9
Notice of Adjournment......................................................9
Action Without a Meeting...................................................9
Fees And Compensation of Trustees..........................................9
Delegation of Power to Other Trustees......................................9
ARTICLE V...........................................................................9
Committees of Trustees.....................................................9
Meetings And Action of Committees.........................................10
ARTICLE VI.........................................................................10
Officers .................................................................10
Election of Officers......................................................11
Subordinate Officers......................................................11
Removal And Resignation of Officers.......................................11
Vacancies in Offices......................................................11
Chairman of the Board.....................................................11
President.................................................................11
Vice President(s).........................................................11
Secretary.................................................................12
Treasurer.................................................................12
ARTICLE VII........................................................................12
Agents, Proceedings And Expenses..........................................12
Actions Other Than by Trust...............................................13
Actions by The Trust......................................................13
Exclusion of Indemnification..............................................13
Successful Defense by Agent...............................................14
Required Approval.........................................................14
Advance of Expenses.......................................................14
Other Contractual Rights..................................................14
Limitations...............................................................14
Insurance.................................................................15
Fiduciaries of Employee Benefit Plan......................................15
ARTICLE VIII.......................................................................15
Maintenance And Inspection of Share Register..............................15
Maintenance And Inspection of By-laws.....................................15
Maintenance And Inspection of Other Records...............................15
Inspection by Trustees....................................................16
Financial Statements......................................................16
ARTICLE IX.........................................................................16
Checks, Drafts, Evidence of Indebtedness..................................16
Contracts And Instruments; How Executed...................................16
Certificates For Shares...................................................16
Lost Certificates.........................................................17
Representation of Shares of Other Entities Held by Trust..................17
Fiscal Year...............................................................17
ARTICLE X..........................................................................17
Amendment.................................................................17
ARTICLE I
Section 1. AGREEMENT AND DECLARATION OF TRUST. These By-Laws shall be
subject to the Agreement and Declaration of Trust, as from time to time in
effect (the "Declaration of Trust"), of the LSA Variable Series Trust, a
Delaware business trust (the "Trust"). In the event of any inconsistency between
the terms hereof and the terms of the Declaration of Trust, the terms of the
Declaration of Trust shall control.
Section 2. DEFINITIONS. Capitalized terms used herein and not herein
defined are used as defined in the Declaration of Trust.
ARTICLE II
OFFICES
Section 1. PRINCIPAL OFFICE. The Board of Trustees shall fix and, from time
to time, may change the location of the principal executive office of the Trust
at any place within or outside the State of Delaware.
Section 2. DELAWARE OFFICES. 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
who is a resident of the State of Delaware or a Delaware corporation or a
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 within or outside the State
of Delaware where the Trust intends to do business.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any
place designated by the Board of Trustees. In the absence of any such
designation, shareholders' meetings shall be held at the principal executive
office of the Trust.
Section 2. ANNUAL MEETINGS. The Trust shall not be required to hold an
annual meeting of its shareholders in any year in which election of Trustees is
not required to be acted upon under the Investment Company Act of 1940 (the
"1940 Act"). In the event that the Trust shall be required by the 1940 Act to
hold an annual meeting of shareholders, such meeting shall be held:
(a) at a date and time set by the Board of Trustees in accordance with the
1940 Act if the purpose of the meeting is to elect Trustees, but in no
event later than one hundred and twenty (120) days after the event
requiring the annual meeting; and
(b) on a date and time fixed by the Board of Trustees during the month of
April (i) in the fiscal year immediately following the fiscal year in
which independent accountants were appointed by the Board of Trustees
if the purpose of the meeting is to ratify the selection of such
independent accounts, or (ii) in any fiscal year if an annual meeting
is to be held for any reason other than as specified in the foregoing.
Any shareholders' meeting held in accordance with the preceding sentence shall
for all purposes constitute the annual meeting of shareholders for the fiscal
year of the Trust in which the meeting is held. At any such meeting, the
shareholders shall elect Trustees to hold offices of any Trustees who have held
office for more than one (1) year or who have been elected by the Board of
Trustees to fill vacancies which result from any cause. Except as the
Declaration of Trust or applicable law provides otherwise, Trustees may transact
any business within the powers of the Trust as may properly come before the
meeting. Any business of the Trust may be transacted at the annual meeting
without being specially designated in the notice, except such business as
specifically required by applicable law to be stated in the notice.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by the Chairman of the Board, the President, any Vice
President, or by the Board of Trustees. Special meetings of the shareholders
also shall be called by the Secretary on the written request of shareholders
entitled to cast at least ten (10) percent of all the votes entitled to be cast
at such a meeting, provided that
(a) such request shall state the purpose or purposes of the meeting and
the matters proposed to be acted on, and
(b) the shareholders requesting the meeting shall have paid to the Trust
the reasonably estimated cost of preparing and mailing the notice
thereof, which the Secretary shall determine and specify to such
shareholders.
Unless requested by shareholders entitled to cast a majority of all the votes
entitled to be cast at the meeting, a special meeting need not be called to
consider any matter which is substantially the same as a matter voted upon at
any annual or special meeting of the shareholders held during the preceding
twelve (12) months.
Section 4. CALL OF MEETING. A meeting of the shareholders may be called at
any time by the Board of Trustees or by the Chairman of the Board or by the
President. Meetings of the shareholders may be called for any purpose deemed
necessary or desirable upon the written consent of the shareholders holding at
least 10% of the outstanding shares of the Trust entitled to vote. To the extent
required by the Investment Company Act of 1940 (the "1940 Act"), meetings of the
shareholders for the purpose of voting on the removal of any Trustee shall be
called promptly by the Trustees upon the written request of shareholders holding
at least 10% of the outstanding shares of the Trust entitled to vote.
Section 5. NOTICE OF SHAREHOLDERS' MEETING. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 6 of
this Article III not less than seven (7) days before the date of the meeting.
The notice shall specify (i) the place, date and time of the meeting, and (ii)
the general nature of the business to be transacted. The notice of any meeting
at which Trustees are to be elected shall include the name of any nominee or
nominees whom at the time of the notice are intended to be presented for
election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a Trustee has a direct or indirect financial
interest, (ii) an amendment of the Agreement and Declaration of Trust, (iii) a
reorganization of the Trust, or (iv) a voluntary dissolution of the Trust, the
notice shall state the general nature of that proposed action.
Section 6. MANNER OF GIVING NOTICE; AFFIDAVIT. Notice of any shareholder
meeting shall be given either by (i) personal delivery, first-class mail,
telegraphic or other written communication, charges prepaid, and (ii) addressed
to the shareholder at the address of that shareholder appearing on the books of
the Trust or its transfer agent or given by the shareholder to the Trust for the
purpose of notice. If no such address appears on the Trust's books or is given,
notice shall be deemed to have been given if sent to that shareholder via
first-class mail, telegraphic or other written communication to the Trust's
principal executive office, or if published at least once in a newspaper of
general circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent via telegram or other means of written communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the Trust is returned to the Trust by the United
States Postal Service marked to indicate that the Postal Service is unable to
deliver the notice to the shareholder at that address, all future notices or
reports shall be deemed to have been duly given without further mailing if they
shall be available to the shareholder upon his or her written demand at the
principal executive office of the Trust for a period of one year from the date
of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholder's meeting shall be executed by the Secretary, assistant secretary or
any transfer agent of the Trust giving the notice and shall be filed and
maintained in the minute book of the Trust.
Section 7. ADJOURNED MEETING. Any meeting of shareholders may be adjourned
from time to time by vote of the majority of shares at that meeting, either in
person or by proxy, to reconvene at the same or some other place, and notice
need not be given of any such adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Trust may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than thirty (30) days, or
if after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting.
Section 8. VOTING. Except as otherwise specifically provided in the
Declaration of Trust or these By-laws, or as required in the 1940 Act or other
applicable law, with respect to the vote of a series or class, if any, of the
Trust, at every shareholders= meeting, each shareholder shall be entitled to one
(1) vote for each share of stock of the Trust validly issued and outstanding and
held by such shareholder, except that no shares held by the Trust shall be
entitled to a vote. Except as otherwise provided by the Declaration of Trust,
each shareholder entitled to vote at any meeting of shareholders shall be
entitled to one vote for each share held which has voting power upon the matter
in question. The shareholders entitled to vote at any meeting of shareholders
shall be determined in accordance with the provisions of the Declaration of
Trust, as in effect at such time. The shareholders' vote may be by voice vote or
by ballot, provided, however, that any election for Trustees must be by ballot
if demanded by any shareholder before the voting has begun. On any matter other
than elections of Trustees, any shareholder may vote part of the shares in favor
of the proposal and refrain from voting the remaining shares or vote them
against the proposal, but if the shareholder fails to specify the number of
shares which the shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect to the total
shares that the shareholder is entitled to vote on such proposal.
Section 9. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS. The
transactions of the meeting of shareholders, however called and noticed and
wherever held, shall be as valid as though taken at a meeting duly held after
regular call and notice provided a quorum is present either in person or by
proxy and if either before or after the meeting, each shareholder entitled to
vote who was not present in person or by proxy signs a written waiver of notice
or a consent to a holding of the meeting or an approval of the minutes. The
waiver of notice or consent need not specify either the business to be
transacted or the purpose of any meeting of shareholders.
Attendance by a shareholder at a meeting of shareholders shall constitute a
waiver of notice of that meeting, except if the shareholder objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters not included
in the notice of the meeting if that objection is expressly made at the
beginning of the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Except
as provided in the Declaration of Trust, any action which may be taken at any
meeting of shareholders may be taken without a meeting and without prior notice
if a consent in writing setting forth the action to be taken is signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take that action at a meeting at which
all shares entitled to vote on that action were present and voted. All such
consents shall be filed with the Secretary of the Trust and shall be maintained
in the Trust's records. Any shareholder giving a written consent or the
shareholder's proxy holders or a transferee of the shares or a personal
representative of the shareholder or their respective proxy holders may revoke
the consent by a writing received by the Secretary of the Trust before written
consents of the number of shares required to authorize the proposed action have
been filed with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the action approved by the shareholders without a meeting. This notice
shall be given in the manner specified in Section 6 of this Article III. In the
case of approval of (i) contracts or transactions in which a Trustee has a
direct or indirect financial interest, (ii) indemnification of agents of the
Trust, or (iii) a reorganization of the Trust, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING CONSENTS.
(a) For the purpose of determining the shareholders entitled to notice of
or to vote at any meeting of shareholders, the Board of Trustees may
fix in advance a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by
the Board of Trustees, and which record date shall not be more than
ninety (90) days before the date of any such meeting as provided in
the Declaration of Trust. If the Board of Trustees does not so fix a
record date the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which
notice is given or if notice is waived, at the close of business on
the business day next preceding the day on which the meeting is held.
(b) For the purpose of determining the shareholders entitled to consent to
Trust action in writing without a meeting, the Board of Trustees may
fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is established by the
Board of Trustees, and which date shall not be more than ten (10) days
after the date on which the resolution fixing the record date is
adopted by the Board of Trustees. If the Board of Trustees does not so
fix a record date the record date for determining shareholders
entitled to give consent to action in writing without a meeting, (i)
when no prior action by the Board of Trustees has been taken, shall be
the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Trust, or
(ii) when prior action of the Board of Trustees has been taken, shall
be at the close of business on the day on which the Board of Trustees
adopt the resolution relating to that action or the seventy-fifth (75)
day before the date of such other action, whichever is later.
Section 12. PROXIES. Subject to the provisions of the Declaration of Trust,
every person entitled to vote for Trustees or on any other matter shall have the
right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the Secretary of the Trust. A proxy
shall be deemed signed if the shareholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise) by the
shareholder or the shareholder's attorney-in-fact. A validly executed proxy
which does not state that it is irrevocable shall continue in full force and
effect unless (i) revoked by the person executing it before the vote pursuant to
that proxy by a writing delivered to the Trust stating that the proxy is revoked
or by a subsequent proxy executed by or attendance at the meeting and voting in
person by the person executing that proxy; or (ii) written notice of the death
or incapacity of the maker of that proxy is received by the Trust before the
vote pursuant to that proxy is counted; provided however, that no proxy shall be
voted or acted upon three years from its date unless the proxy provides for a
longer period.
Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders, the
Board of Trustees may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may and on the request of
any shareholder or a shareholder's proxy shall, appoint inspectors of election
at the meeting. The number of inspectors shall be either one (1) or three (3).
If inspectors are appointed at a meeting on the request of one or more
shareholders or proxies, the holders of a majority of shares or their proxies
present at the meeting shall determine whether one (1) or three (3) inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may and on the request of
any shareholder or a shareholder's proxy, shall appoint a person to fill the
vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of
a quorum and the authenticity, validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
Section 14. CONDUCT OF MEETINGS. The Board of Trustees may adopt by
resolution such rules and regulations for the conduct of the meeting of
shareholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Trustees, the
chairman of any meeting of shareholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Trustees or prescribed by the chairman of the meeting, may include, without
limitation, the following:
(1) The establishment of an agenda or order of business for the
meeting;
(2) Rules and procedures for maintaining order at the meeting and the
safety of those present;
(3) Limitations on attendance at or participation in the meeting to
shareholders of record the of Trust, their duly authorized and
constituted proxies or such other persons as the chairman of the
meeting shall determine;
(4) Restrictions on entry to the meeting after the time fixed for the
commencement thereof; and
(5) Limitations on the time allotted to questions or comments by
participants.
ARTICLE IV
TRUSTEES
Section 1. POWERS. Subject to the applicable provisions of the Declaration
of Trust and these By-Laws relating to action required to be approved by the
shareholders or by the outstanding shares, the business and affairs of the Trust
shall be managed and all powers shall be exercised by or under the direction of
the Board of Trustees.
Section 2. NUMBER AND QUALIFICATION OF TRUSTEES. The exact number of
Trustees within the limits specified in the Declaration of Trust shall be fixed
from time to time by a resolution of the Trustees. No more than sixty percent
(60%) of the Board of Trustees shall qualify as "interested persons" as that
term is defined in the 1940 Act. The 1940 Act, specifically '10, shall control
the qualifications of the members of the Board of Trustees.
Section 3. VACANCIES. In the event that at any time, other than the time
preceding the first meeting of shareholders, any vacancies occur in the Board of
Trustees by reason of resignation, removal, or otherwise, or if the authorized
number of Trustees is increased, the Trustees then in office shall continue to
act, and such vacancies (if not previously filled by the shareholders) may be
filled by a majority of the Trustees then in office, whether or not sufficient
to constitute a quorum, provided that, immediately after filling such vacancy,
at least two-thirds of the Trustees then holding office shall have been elected
to such office by the shareholders of the Trust. In the event that at any time,
other than the time preceding the first meeting of shareholders, less than a
majority of the Trustees of the Trust holding office at that time were so
elected by the shareholders, a meeting of the shareholders shall be held
promptly and in any event within sixty (60) days for the purpose of electing
Trustees to fill any existing vacancies in the Board of Trustees unless the
Securities and Exchange Commission shall by order extend such period.
Notwithstanding the above, whenever and for so long as the Trust is a
participant in or otherwise has in effect a Plan under which the Trust may be
deemed to bear expenses of distributing its shares as that practice is described
in Rule 12b-1 under the 1940 Act, then the selection and nomination of the
Trustees who are not interested persons of the Trust (as that term is defined in
the 1940 Act) shall be, and is, committed to the discretion of such
disinterested Trustees.
Section 4. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. All meetings of the
Board of Trustees may be held at any place within or outside the State of
Delaware that has been designated from time to time by resolution of the Board.
In the absence of such a designation, regular meetings shall be held at the
principal executive office of the Trust. Members of the Board of Trustees or of
any committee designated by the Board of Trustees may participate in a meeting
of the Board of Trustees or of such committee 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. Participation by such means shall
constitute presence in person at such meeting, unless otherwise prohibited by
provisions of the 1940 Act or other applicable law.
Section 5. REGULAR MEETINGS. Regular meetings of the Board of Trustees
shall be held without call at such time as shall from time to time be fixed by
the Board of Trustees. Such regular meetings may be held without notice.
Section 6. SPECIAL MEETINGS. Special meetings of the Board of Trustees for
any purpose or purposes may be called at any time by the President or any Vice
President or the Secretary or any two (2) Trustees.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each Trustee or sent by first-class mail or
telegram, charges prepaid, addressed to each Trustee at that Trustee's address
as it is shown on the records of the Trust. In case the notice is mailed, it
shall be deposited in the United States mail at least seven (7) days before the
time of the holding of the meeting. In case the notice is delivered personally,
by telephone, to the telegraph company, or by express mail or similar service,
it shall be given at least forty-eight (48) hours before the time of the holding
of the meeting. Any oral notice given personally or by telephone may be
communicated either to the Trustee or to a person at the office of the Trustee
who the person giving the notice has reason to believe will promptly communicate
it to the Trustee. The notice need not specify the purpose of the meeting or the
place if the meeting is to be held at the principal executive office of the
Trust.
Section 7. QUORUM. A majority of the authorized number of Trustees shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 9 of this Article IV. Every act or decision done or made by
a majority of the Trustees present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Trustees, subject to the
provisions of the Declaration of Trust. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
Trustees if any action taken is approved by a least a majority of the required
quorum for that meeting.
Section 8. WAIVER OF NOTICE. Notice of any meeting need not be given to any
Trustee who either before or after the meeting signs a written waiver of notice,
a consent to holding the meeting, or an approval of the minutes. The waiver of
notice or consent need not specify the purpose of the meeting. All such waivers,
consents, and approvals shall be filed with the records of the Trust or made a
part of the minutes of the meeting. Notice of a meeting shall also be deemed
given to any Trustee who attends the meeting without protesting before or at its
commencement the lack of notice to that Trustee.
Section 9. ADJOURNMENT. A majority of the Trustees present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
Section 10. NOTICE OF ADJOURNMENT. Notice of the time and place of holding
an adjourned meeting need not be given unless the meeting is adjourned for more
than forty-eight (48) hours, in which case notice of the time and place shall be
given before the time of the adjourned meeting in the manner specified in
Section 6 of this Article IV to the Trustees who were present at the time of the
adjournment.
Section 11. ACTION WITHOUT A MEETING. Unless the 1940 Act requires that a
particular action be taken only at a meeting at which the Trustees are present
in person, any action to be taken by the Trustees at a meeting may be taken
without such meeting by the written consent of a majority of the Trustees then
in office. Any such written consent may be executed and given by telecopy or
similar electronic means. Such written consents shall be filed with the minutes
of the proceedings of the Trustees. If any action is so taken by the Trustees by
the written consent of less than all of the Trustees, prompt notice of the
taking of such action shall be furnished to each Trustee who did not execute
such written consent, provided that the effectiveness of such action shall not
be impaired by any delay or failure to furnish such notice.
Section 12. FEES AND COMPENSATION OF TRUSTEES. Trustees and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Board of Trustees. This Section 12 shall not be construed to preclude any
Trustee from serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those services.
Section 13. DELEGATION OF POWER TO OTHER TRUSTEES. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six (6) months
at any one time to any other Trustee or Trustees; provided that in no case shall
fewer than two (2) Trustees personally exercise the powers granted to the
Trustees under the Declaration of Trust except as otherwise expressly provided
herein or by resolution of the Board of Trustees.
ARTICLE V
COMMITTEES
Section 1. COMMITTEES OF TRUSTEES. The Board of Trustees may, by
resolution, designate one or more committees, each consisting of two (2) or more
Trustees, to serve at the pleasure of the Board. The Board may designate one or
more Trustees as alternate members of any committee who may replace any absent
member at any meeting of the committee. Any committee to the extent provided in
the resolution of the Board, shall have the authority of the Board, except with
respect to:
(a) The approval of any action which under applicable law also
requires shareholders' approval or approval of the outstanding
shares, or requires approval by a majority of the entire Board or
certain members of the Board;
(b) The filling of vacancies on the Board of Trustees or in any
committee;
(c) The fixing of compensation of the Trustees for services generally
or as a member of any committee;
(d) The amendment or termination of the Declaration of Trust or of
the By-Laws or the adoption of new By-Laws;
(e) The amendment or repeal of any resolution of the Board of
Trustees which by its express terms is not so amendable or
repealable;
(f) A distribution to the shareholders of the Trust, except at a rate
or in a periodic amount or within a designated range determined
by the Board of Trustees; or
(g) The appointment of any other committees of the Board of Trustees
or the members of such new committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by and held and taken in accordance with the
provisions of Article IV of these By-Laws, with such changes in the context
thereof as are necessary to substitute the committee and its members for the
Board of Trustees and its members, except that the time of regular meetings of
committees may be determined either by resolution of the Board of Trustees or by
resolution of the committee. Special meetings of committees may also be called
by resolution of the Board of Trustees, and notice of special meetings of
committees shall also be given to all alternate members who shall have the right
to attend all meetings of the committee. The Board of Trustees may adopt rules
for the government of any committee not inconsistent with the provisions of
these By-Laws.
ARTICLE VI
OFFICERS
Section 1. OFFICERS. The officers of the Trust shall be a President, a
Secretary, and a Treasurer. The Trust may also have, at the discretion of the
Board of Trustees, a Chairman of the Board, one or more Vice Presidents, one or
more assistant secretaries, one or more assistant treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 3 of
this Article VI. Any number of offices may be held by the same person.
Section 2. ELECTION OF OFFICERS. The officers of the Trust, except such
officers as may appointed in accordance with the provisions of Section 3 or
Section 5 of this Article VI, shall be chosen by the Board of Trustees, and each
shall serve at the pleasure of the Board of Trustees, subject to the rights, if
any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board of Trustees may appoint and may
empower the President to appoint such other officers as the business of the
Trust may require, each of whom shall hold office for such period, have such
authority and perform such duties as are provided in these By-Laws or as the
Board of Trustees may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Trustees at any regular or special
meeting of the Board of Trustees or except in the case of an officer upon whom
such power of removal may be conferred by the Board of Trustees.
Any officer may resign at any time by giving written notice to the Trust.
Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice; and unless otherwise specified in
that notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of the
Trust under any contract to which the officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification or other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office. The
President may make temporary appointments to a vacant office pending action by
the Trustees.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer is elected, shall, if present preside at meetings of the Board of
Trustees and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Trustees or prescribed by the
By-Laws.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Trustees to the Chairman of the Board, if there be such an
officer, the President shall be the chief executive officer of the Trust and
shall, subject to the control of the Board of Trustees, have general
supervision, direction and control of the business and the officers of the
Trust. The President shall preside at all meetings of the shareholders and in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Trustees. He shall have the general powers and duties of
management usually vested in the office of President of a corporation and shall
have such other powers and duties as may be prescribed by the Board of Trustees
or these By-Laws.
Section 8. VICE PRESIDENT(S). In the absence or disability of the
President, the Vice President(s), if any, in order of their rank as fixed by the
Board of Trustees or if not ranked, a Vice President designated by the Board of
Trustees, shall perform all the duties of the President and when so acting shall
have all powers of and be subject to all the restrictions upon the President.
The Vice President(s) shall have such other powers and perform such other duties
as from time to time may be prescribed for them respectively by the Board of
Trustees or by these By-Laws and the President or the Chairman of the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept at the
principal executive office of the Trust or such other place as the Board of
Trustees may direct, a book of minutes of all meetings and actions of Trustees,
committees of Trustees and shareholders with the time and place of holding,
whether regular or special, and if special, how authorized, the notice given,
the names of those present at Trustees' meetings or committee meetings, the
number of shares present or represented at shareholders' meetings, and the
proceedings of the meetings.
The Secretary shall keep or cause to be kept at the principal executive
office of the Trust or at the office of the Trust's transfer agent or registrar,
a share register or a duplicate share register showing the names of all
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same and the number and date
of cancellation of every certificate surrendered for cancellation.
The Secretary shall give or cause to be given notice of all meetings of the
shareholders and of the Board of Trustees (or committees thereof) required to be
given by these By-Laws or by applicable law and shall have such other powers and
perform such other duties as may be prescribed by the Board of Trustees or by
these By-Laws.
Section 10. TREASURER. The Treasurer shall be the chief financial officer
and chief accounting officer of the Trust and shall keep and maintain or cause
to be kept and maintained adequate and correct books and records of accounts of
the properties and business transactions of the Trust, including accounts of its
assets, liabilities, receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all reasonable times be open
to inspection by any Trustee.
The Treasurer shall deposit or cause to be deposited all monies and other
valuables in the name and to the credit of the Trust with such depositories as
may be designated by the Board of Trustees. The Treasurer shall disburse or
cause to be disbursed the funds of the Trust as may be ordered by the Board of
Trustees, shall render or cause to be rendered to the President and Trustees,
whenever requested, an account of all of his or her transactions as chief
financial officer and of the financial condition of the Trust and shall have
other powers and perform such other duties as may be prescribed by the Board of
Trustees or these By-Laws.
ARTICLE VII
INDEMNIFICATION OF TRUSTEES, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "agent" means any person who is or was a Trustee, officer, employee or
other agent of this Trust or is or was serving at the request of this Trust as a
Trustee, director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise or was a
Trustee, director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor of another enterprise at the request of such
predecessor entity; "proceeding" means any threatened, pending or completed
action 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. The 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 the Trust, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with such proceeding if that person acted in good faith and in a
manner that person reasonably believed to be in the best interests of the Trust
and in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of that person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person did not act
in good faith and in a manner which the person reasonably believed to be in the
best interests of the Trust or that the person had reasonable cause to believe
that the person's conduct was unlawful.
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 threatened, pending
or completed action by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that person is or was an agent of the 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 the person believed to be in the best interests of the 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 claim, issue or matter 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 circumstances of the case,
that person was not liable by reason of the disabling conduct set
forth in the preceding paragraph and is fairly and reasonably
entitled to indemnity for the expenses which the court shall
determine; or
(b) In respect of any claim, issue, or matter as to which that person
shall have been adjudged to be liable on the basis that personal
benefit was improperly received by him or her, whether or not the
benefit resulted from an action taken in the person's official
capacity; or
(c) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval, or
of expenses incurred in defending a threatened or pending action
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 in defense of any proceeding referred to
in Sections 2 or 3 of this Article or in defense of any claim, issue or matter
therein, 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 the 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 0000 Xxx); or
(b) A written opinion by an independent legal counsel.
Section 7. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the Trust before the final disposition of the
proceeding on receipt of an undertaking by or on behalf of the agent to repay
the amount of the advance unless it shall be determined ultimately that the
agent is entitled to be indemnified as authorized in this Article, provided the
agent provides a security for his undertaking, or a majority of a quorum of the
disinterested, non-party Trustees, or an independent legal counsel in a written
opinion, determine that based on a review of readily available facts, there is
reason to believe that said agent ultimately will be found entitled to
indemnification.
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 Declaration
of 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 of this Trust against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such, but only to the extent that this Trust would
have the power to indemnify the agent against that liability under the
provisions of this Article.
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 VIII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The Trust shall
keep at its principal executive office or at the office of its transfer agent or
registrar, if either be appointed and as determined by resolution of the Board
of Trustees, a record of its shareholders, giving the names and addresses of all
shareholders and the number and series of shares held by each shareholder.
Section 2. MAINTENANCE AND INSPECTION OF BY-LAWS. The Trust shall keep at
its principal executive office the original or a copy of these By-Laws as
amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 3. MAINTENANCE AND INSPECTION OF OTHER RECORDS. The accounting
books and records and minutes of proceedings of the shareholders and the Board
of Trustees and any committee or committees of the Board of Trustees shall be
kept at such place or places designated by the Board of Trustees or in the
absence of such designation, at the principal executive office of the Trust. The
minutes shall be kept in written form and the accounting books and records shall
be kept either in written form or in any other form capable of being converted
into written form. The minutes and accounting books and records shall be open to
inspection upon the written demand of any shareholder or holder of a voting
trust certificate at any reasonable time during usual business hours for a
purpose reasonably related to the holder's interests as a shareholder or as the
holder of a voting trust certificate. The inspection may be made in person or by
an agent or attorney and shall include the right to copy and make extracts.
Section 4. INSPECTION BY TRUSTEES. Every Trustee shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the Trust. This inspection by a
Trustee may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
Section 5. FINANCIAL STATEMENTS. A copy of any financial statements and any
income statement of the Trust for each quarterly period of each fiscal year and
accompanying balance sheet of the Trust as of the end of each such period that
has been prepared by the Trust shall be kept on file in the principal executive
office of the Trust for at least twelve (12) months and each such statement
shall be exhibited at all reasonable times to any shareholder demanding an
examination of any such statement or a copy shall be mailed to any such
shareholder.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the Trust or the certificate of an authorized officer of
the Trust that the financial statements were prepared without audit from the
books and records of the Trust.
ARTICLE IX
GENERAL MATTERS
Section 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. All checks, drafts, or
other orders for payment of money, notes or other evidences of indebtedness
issued in the name of or payable to the Trust shall be signed or endorsed by
such person or persons and in such manner as from time to time shall be
determined by resolution of the Board of Trustees.
Section 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of Trustees,
except as otherwise provided in these By-Laws, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Trust and this authority may be general or
confined to specific instances; and unless so authorized or ratified by the
Board of Trustees or within the agency power of an officer, no officer, agent,
or employee shall have any power or authority to bind the Trust by any contract
or engagement or to pledge its credit or to render it liable for any purpose or
for any amount.
Section 3. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of beneficial interest in any series of the Trust may be issued to a
shareholder upon his request when such shares are fully paid. All certificates
shall be signed in the name of the Trust by the Chairman of the Board or the
President or Vice President and by the Treasurer or an assistant treasurer or
the Secretary or any assistant Secretary, certifying the number of shares and
the series of shares owned by the shareholders. Any or all of the signatures on
the certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be that officer, transfer agent, or registrar
before that certificate is issued, it may be issued by the Trust with the same
effect as if that person were an officer, transfer agent or registrar at the
date of issue. Notwithstanding the foregoing, the Trust may adopt and use a
system of issuance, recordation and transfer of its shares by electronic or
other means.
Section 4. LOST CERTIFICATES. Except as provided in this Section 4, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the Trust and canceled at the same time. The Board of
Trustees may in case any share certificate or certificate for any other security
is lost, stolen, or destroyed, authorize the issuance of a replacement
certificate on such terms and conditions as the Board of Trustees may require,
including a provision for indemnification of the Trust secured by a bond or
other adequate security sufficient to protect the Trust against any claim that
may be made against it, including any expense or liability on account of the
alleged loss, theft, or destruction of the certificate or the issuance of the
replacement certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY TRUST. The
Chairman of the Board, the President or any Vice President or any other person
authorized by resolution of the Board of Trustees or by any of the foregoing
designated officers, is authorized to vote or represent on behalf of the Trust
any and all shares of any corporation, partnership, trusts, or other entities,
foreign or domestic, standing in the name of the Trust. The authority granted
may be exercised in person or by a proxy duly executed by such designated
person.
Section 6. FISCAL YEAR. The fiscal year of the Trust shall be fixed and
refixed or changed from time to time by resolution of the Trustees. The fiscal
year of the Trust shall be the taxable year of each Series of the Trust.
ARTICLE X
AMENDMENTS
Section 1. AMENDMENT. Except as otherwise provided by applicable law or by
the Declaration of Trust, these By-Laws may be restated, amended, supplemented
or repealed by the Trustees, provided that no restatement, amendment, supplement
or repeal hereof shall limit the rights to indemnification or insurance provided
in Article VII hereof with respect to any acts or omissions of agents (as
defined in Article VII) of the Trust prior to such amendment.
