Sub-Item 77Q1(a)
AMENDMENT NO. 2
TO THE THIRD AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST OF
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
This Amendment No. 2 (the "Amendment") to the Third Amended and Restated
Agreement and Declaration of Trust of AIM Counselor Series Trust (Invesco
Counselor Series Trust) (the "Trust") amends, effective February 28, 2017, the
Third Amended and Restated Agreement and Declaration of Trust of the Trust
dated as of October 26, 2016, as amended (the "Agreement").
Under Section 9.7 of the Agreement, this Amendment may be executed by a duly
authorized officer of the Trust.
WHEREAS, the Trust desires to amend the Agreement to add Class R6 Shares to
Invesco California Tax-Free Income Fund and Invesco S&P 500 Index Fund;
NOW, THEREFORE, the Agreement is hereby amended as follows:
1. Schedule A of the Agreement is hereby amended and restated to read in its
entirety as set forth on Exhibit 1 to this Amendment.
2. All capitalized terms are used herein as defined in the Agreement unless
otherwise defined herein. All references in the Agreement to "this
Agreement" shall mean the Agreement as amended by this Amendment.
3. Except as specifically amended by this Amendment, the Agreement is hereby
confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Trust,
has executed this Amendment as of February 28, 2017.
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
EXHIBIT 1
"SCHEDULE A
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
PORTFOLIOS AND CLASSES THEREOF
PORTFOLIO CLASSES OF EACH PORTFOLIO
--------- -------------------------
Invesco American Franchise Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco California Tax-Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Core Plus Bond Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Equally-Weighted S&P 500 Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Equity and Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
2
Invesco Floating Rate Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Global Real Estate Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Growth and Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Low Volatility Equity Yield Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Investor Class Shares
Invesco Pennsylvania Tax Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R6 Shares
Class T Shares
Class Y Shares
3
Invesco S&P 500 Index Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Short Duration High Yield Municipal Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Small Cap Discovery Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Strategic Real Return Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares"
4
Sub-Item 77Q1(a)
AMENDMENT NO. 1
TO THE THIRD AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST OF
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
This Amendment No. 1 (the "Amendment") to the Third Amended and Restated
Agreement and Declaration of Trust of AIM Counselor Series Trust (Invesco
Counselor Series Trust) (the "Trust") amends, effective November 30, 2016, the
Third Amended and Restated Agreement and Declaration of Trust of the Trust
dated as of October 26, 2016, as amended (the "Agreement").
Under Section 9.7 of the Agreement, this Amendment may be executed by a duly
authorized officer of the Trust.
WHEREAS, the Trust desires to amend the Agreement to add Class T Shares and
Class F Shares;
NOW, THEREFORE, the Agreement is hereby amended as follows:
1. Schedule A of the Agreement is hereby amended and restated to read in its
entirety as set forth on Exhibit 1 to this Amendment.
2. All capitalized terms are used herein as defined in the Agreement unless
otherwise defined herein. All references in the Agreement to "this
Agreement" shall mean the Agreement as amended by this Amendment.
3. Except as specifically amended by this Amendment, the Agreement is hereby
confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Trust,
has executed this Amendment as of November 30, 2016.
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
EXHIBIT 1
"SCHEDULE A
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
PORTFOLIOS AND CLASSES THEREOF
PORTFOLIO CLASSES OF EACH PORTFOLIO
--------- -------------------------
Invesco American Franchise Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco California Tax-Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class T Shares
Class Y Shares
Invesco Core Plus Bond Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Equally-Weighted S&P 500 Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Equity and Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
2
Invesco Floating Rate Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Global Real Estate Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Growth and Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Low Volatility Equity Yield Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Investor Class Shares
Invesco Pennsylvania Tax Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R6 Shares
Class T Shares
Class Y Shares
3
Invesco S&P 500 Index Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class T Shares
Class Y Shares
Invesco Short Duration High Yield Municipal Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Small Cap Discovery Fund Class A Shares
Class B Shares
Class C Shares
Class F Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares
Invesco Strategic Real Return Fund Class A Shares
Class C Shares
Class F Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class T Shares
Class Y Shares"
4
Sub-Item 77Q1(a)
THIRD AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
THIRD AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of AIM
Counselor Series Trust (Invesco Counselor Series Trust) is made the 26/th/ day
of October, 2016 by the parties signatory hereto, as Trustees.
WHEREAS the Trust was formed on July 29, 2003 by the filing of a
Certificate of Trust with the office of the Secretary of State of the State of
Delaware pursuant to a Declaration of Trust, dated as of July 29, 2003 (the
"Original Declaration");
WHEREAS the Trust has been formed to carry on the business of an
open-end management investment company as defined in the 1940 Act;
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth; and
WHEREAS the Board of Trustees desires to amend and restate the Original
Declaration in the manner hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration is amended and restated in its entirety in
the manner hereinafter set forth;
(ii) all cash, securities and other assets that the Trust may from time
to time acquire in any manner shall be managed and disposed of upon the terms
and conditions as hereinafter set forth; and
(iii) this Amended and Restated Agreement and Declaration of Trust and
the Bylaws shall be binding in accordance with their terms on every Trustee, by
virtue of having become a Trustee of the Trust, and on every Shareholder, by
virtue of having become a Shareholder of the Trust, pursuant to the terms of
this Agreement and the Bylaws.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the statutory trust is AIM Counselor Series
Trust (Invesco Counselor Series Trust), and the Trustees may transact the
Trust's affairs in that name or any other name as the Board of Trustees may
from time to time designate. The Trustees may, without Shareholder approval,
change the name of the Trust or any Portfolio or Class. Any name change of any
Portfolio or Class shall become effective upon approval by the Trustees of such
change or any document (including any Registration Statement) reflecting such
change. Any name change of the Trust shall become effective upon the filing of
a certificate of amendment under the Delaware Act reflecting such change. Any
such action shall have the status of an amendment to this Agreement. In the
event of any name change, the Trustees shall cause notice to be given to the
affected Shareholders within a reasonable time after the implementation of such
change, which notice will be deemed given if the changed name is reflected in
any Registration Statement. The Trust shall constitute a Delaware statutory
trust in accordance with the Delaware Act.
1
Section 1.2 Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided in the Governing Instrument:
(a) "Affiliated Person," "Commission," "Company," "Interested Person,"
"Person," and "Principal Underwriter" shall have the meanings given
them in the 1940 Act, as modified by or interpreted by any applicable
order or orders of the Commission or any rules or regulations adopted
or interpretive releases of the Commission thereunder;
(b) "Agreement" means this Amended and Restated Agreement and Declaration
of Trust, as it may be amended, restated or supplemented from time to
time;
(c) "allocable" has the meaning specified in Section 2.5(d);
(d) "allocated" has the meaning specified in Section 2.5(d);
(e) "Board of Trustees" or "Board" shall mean the governing body of the
Trust, that is comprised of the number of Trustees of the Trust fixed
from time to time pursuant to Article III hereof, having the powers and
duties set forth herein;
(f) "Bylaws" means the Bylaws of the Trust as amended, restated or
supplemented from time to time by the Trustees;
(g) "Certificate of Trust" shall mean the certificate of trust of the Trust
filed on July 29, 2003 with the office of the Secretary of State of the
State of Delaware as required under the Delaware Act, as such
certificate may be amended or restated from time to time;
(h) "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Section 2.3(b);
(i) "Class Expenses" means expenses incurred by a particular Class in
connection with a shareholder services arrangement or a distribution
plan that is specific to such Class or any other differing share of
expenses or differing fees, in each case pursuant to a plan adopted by
the Trust pursuant to Rule 18f-3 under the 1940 Act, as such plan or
Rule may be amended from time to time;
(j) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder;
(k) "Covered Person" means a person who is or was a Trustee, officer,
employee or agent of the Trust, or is or was serving at the request of
the Trustees as a director, trustee, partner, officer, employee or
agent of another foreign or domestic corporation, trust, partnership,
joint venture or other enterprise;
(l) "Delaware Act" refers to the Delaware Statutory Trust Act, 12 Del. C.
(S) 3801 et seq., as such Act may be amended from time to time;
2
(m) "Governing Instrument" means collectively this Agreement, the Bylaws
and all written committee and sub-committee charters adopted by the
Trustees and any amendments or modifications thereto;
(n) "Majority Shareholder Vote" means the vote of "a majority of the
outstanding voting securities" (as defined in the 1940 Act) of the
Trust, Portfolio, or Class, as applicable;
(o) "Majority Trustee Vote" means the voting standard set forth in Article
II, Section 4 of the Bylaws;
(p) "1940 Act" means the Investment Company Act of 1940, as amended from
time to time, and the rules promulgated thereunder;
(q) "Outstanding Shares" means Shares shown on the books of the Trust or
any Portfolio or the Trust's transfer agent as then issued and
outstanding, and includes Shares of one Portfolio that the Trust has
purchased on behalf of another Portfolio, but excludes Shares of a
Portfolio that the Trust has redeemed or repurchased;
(r) "Portfolio" means a series of Shares of the Trust within the meaning of
Section 3804(a) of the Delaware Act, established in accordance with the
provisions of Section 2.3(a);
(s) "Proportionate Interest" has the meaning specified in Section 2.5(d);
(t) "Purchasing Portfolio" has the meaning specified in Section 2.9;
(u) "Record Owner" means, as of any particular time, a record owner of
Outstanding Shares of the Trust shown on the books of the Trust or any
Portfolio or the Trust's transfer agent as then issued and outstanding
at such time;
(v) "Registration Statement" shall mean the Trust's registration statement
or statements as filed with the Commission, as from time to time in
effect and shall include any prospectus or statement of additional
information forming a part thereof;
(w) "Schedule A" has the meaning specified in Section 2.3(a);
(x) "Selling Portfolio" has the meaning specified in Section 2.9;
(y) "Shareholder" means, as of any particular time, an owner of Outstanding
Shares, whether beneficially or of record, of the Trust;
(z) "Shares" means, as to a Portfolio or any Class thereof, the equal
proportionate transferable units of beneficial interest into which the
beneficial interest of such Portfolio or such Class thereof shall be
divided and may include fractions of Shares in 1/1000th of a Share or
integral multiples thereof as well as whole Shares;
(aa) "Trust" means AIM Counselor Series Trust (Invesco Counselor Series
Trust), the Delaware statutory trust formed under the Original
Declaration, as amended and restated by this Agreement, and by filing
of the Certificate of
3
Trust with the office of the Secretary of State of the State of
Delaware and governed by this Agreement, as such instruments may be
further amended, restated or supplemented from time to time, and
reference to the Trust, when applicable to one or more Portfolios,
shall refer to each such Portfolio;
(bb) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the
Trust or any Portfolio, or by the Trustees on behalf of the Trust or
any Portfolio; and
(cc) "Trustees" means the natural persons who have signed this Agreement as
trustees and all other natural persons who may from time to time be
duly appointed as Trustee in accordance with the provisions of
Section 3.4, or elected as Trustee by the Shareholders, in each case so
long as they shall continue to serve as trustees of the Trust in
accordance with the terms hereof, and reference herein to a Trustee or
to the Trustees shall refer to such natural persons in their capacity
as Trustees hereunder.
In this Agreement or in any amended, restated or supplemented Agreement,
references to this Agreement, and all expressions like "herein," "hereof," and
"hereunder," shall be deemed to refer to this Agreement as amended, restated or
supplemented. All expressions like "his," "he," and "him," shall be deemed to
include the feminine and neuter, as well as masculine, genders.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate and
carry on the business of an open-end management investment company registered
under the 1940 Act through one or more Portfolios investing primarily in
securities and to carry on such other business as the Trustees may from time to
time determine pursuant to their authority under this Agreement.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The beneficial interests of the
Trust shall be divided into an unlimited number of Shares. The Trust is
authorized (A) to establish and designate one or more series of beneficial
interests within the meaning of Section 3804(a) of the Delaware Act, which
shall constitute the Trust's Portfolio(s), and (B) to divide the Shares of any
Portfolio into one or more separate and distinct Classes. All Shares issued
hereunder, including without limitation, Shares issued in connection with a
dividend or other distribution in Shares or a split or reverse split of Shares,
shall be fully paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion may, from
time to time, without vote of the Shareholders, issue Shares, in addition to
the then issued and Outstanding Shares, to such party or parties and for such
amount and type of consideration, subject to applicable law, including cash or
securities, at such time or times and on such terms as the Trustees may deem
appropriate, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with, the assumption of
liabilities) and businesses. In connection with any issuance of Shares, the
Trustees may issue fractional Shares. The Trustees may from time to time divide
or combine the Shares into a greater or lesser number without thereby changing
the proportionate beneficial interests in the Trust. Contributions to the Trust
may be accepted for, and Shares shall be redeemed as, whole Shares and/or
1/1,000th of a Share or integral multiples thereof.
4
Section 2.3 Establishment of Portfolios and Classes.
(a) The Trust shall consist of one or more separate and distinct
Portfolios, each with an unlimited number of Shares unless otherwise
specified. The Trustees hereby establish and designate the Portfolios
listed on Schedule A attached hereto and made a part hereof ("Schedule
A"). Each additional Portfolio shall be established by the adoption of
one or more resolutions by the Trustees that sets forth the designation
of, or otherwise identifies, such Portfolio, whether directly in such
resolution or by reference to, or approval of, another document that
sets forth the designation of, or otherwise identifies, such Portfolio
including any Registration Statement, any amendment of this Agreement
and/or Schedule A or as otherwise provided in such resolution. Upon the
establishment of any Portfolio or the termination of any existing
Portfolio, Schedule A shall be amended to reflect the addition or
termination of such Portfolio and any officer of the Trust is hereby
authorized to make such amendment; provided that the amendment of
Schedule A shall not be a condition precedent to the establishment or
termination of any Portfolio in accordance with this Agreement. The
Shares of each Portfolio shall have the relative rights and preferences
provided for herein and such rights and preferences as may be
designated by the Trustees in any amendment or modification to the
Trust's Governing Instrument, unless the establishing resolution or any
other resolution adopted pursuant to this Section 2.3 or the
Registration Statement otherwise provides. The Trust shall maintain
separate and distinct records of each Portfolio and shall hold the
assets belonging to such Portfolio in such separate and distinct
records and shall account for such assets in such separate and distinct
records separately from the other Trust Property and the assets
belonging to any other Portfolio. Each Share of a Portfolio shall
represent an equal beneficial interest in the net assets belonging to
that Portfolio, except to the extent of Class Expenses and other
expenses separately allocated to Classes thereof (if any Classes have
been established) as permitted herein. Any action that may be taken by
the Trustees with respect to any Portfolio, including any addition,
modification, division, combination, classification, reclassification,
change of name or termination may be made in the same manner as the
establishment of such Portfolio.
(b) The Trustees may establish one or more Classes of Shares of any
Portfolio, each with an unlimited number of Shares unless otherwise
specified. The Trustees hereby establish and designate the Classes
listed on Schedule A attached hereto and made a part hereof. Each
additional Class shall be established by the adoption of one or more
resolutions by the Trustees that set(s) forth the designation of, or
otherwise identifies, such Class, whether directly in such resolution
or by reference to, or approval of, another document that sets forth
the designation of, or otherwise identifies, such Class including any
Registration Statement, any amendment of this Agreement and/or Schedule
A or as otherwise provided in such resolution. Upon the establishment
of any Class of Shares of any Portfolio or the termination of any
existing Class of Shares, Schedule A shall be amended to reflect the
addition or termination of such Class and any officer of the Trust is
hereby authorized to make such amendment; provided that the amendment
of Schedule A shall not be a condition precedent to the establishment
or termination of any Class in accordance with this Agreement. The
Shares of each Class shall have the relative rights and preferences
provided for herein and such rights and preferences as may be
designated by the Trustees in any amendment or modification to the
Trust's Governing Instrument, unless the establishing resolution or any
other resolution adopted pursuant to Section 2.3 or the Registration
Statement otherwise provides. Each Class so established and
5
designated shall represent a Proportionate Interest (as defined in
Section 2.5(d)) in the net assets belonging to that Portfolio and shall
have identical voting, dividend, liquidation, and other rights and be
subject to the same terms and conditions, except that
(1) Class Expenses allocated to a Class for which such expenses were
incurred shall be borne solely by that Class, (2) other expenses,
costs, charges, and reserves allocated to a Class in accordance with
Section 2.5(e) may be borne solely by that Class, provided that the
allocation of such other expenses, costs, charges, and reserves is not
specifically required to be set forth in a plan adopted by the Trust
pursuant to Rule 18f-3 under the Act, (3) dividends declared and
payable to a Class pursuant to Section 7.1 shall reflect the items
separately allocated thereto pursuant to the preceding clauses,
(4) each Class may have separate rights to convert to another Class,
exchange rights, and similar rights, each as determined by the
Trustees, and (5) each Class may have exclusive voting rights with
respect to matters affecting only that Class.
Section 2.4 Actions Affecting Portfolios and Classes. Subject to the right
of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees shall
have full power and authority, in their sole discretion without obtaining any
prior authorization or vote of the Shareholders of any Portfolio, or
Class thereof, to establish and designate and to change in any manner any
Portfolio of Shares, or any Class or Classes thereof; to fix or change such
preferences, voting powers, rights, and privileges of any Portfolio, or Classes
thereof, as the Trustees may from time to time determine, including any change
that may adversely affect a Shareholder; to divide or combine the Shares of any
Portfolio, or Classes thereof, into a greater or lesser number of Shares; to
classify or reclassify or convert any issued or unissued Shares of any
Portfolio, or Classes thereof, into one or more Portfolios or Classes of Shares
of a Portfolio and, in connection therewith, to cause some or all of the
Shareholders of such Portfolio or Class to be admitted as Shareholders of such
other Portfolio or Class; and to take such other action with respect to the
Shares as the Trustees may deem desirable. A Portfolio and any Class thereof
may issue any number of Shares but need not issue any Shares. At any time that
there are no Outstanding Shares of any particular Portfolio or Class previously
established and designated, the Trustees may abolish that Portfolio or
Class and the establishment and designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 or the
Registration Statement otherwise provides, Shares of each Portfolio or
Class thereof established hereunder shall have the following relative rights
and preferences:
(a) Except as set forth in paragraph (e) of this Section 2.5, each Share of
a Portfolio, regardless of Class, shall represent an equal pro rata
interest in the assets belonging to such Portfolio and shall have
identical voting, dividend, liquidation and other rights, preferences,
powers, restrictions, limitations, qualifications and designations and
terms and conditions with each other Share of such Portfolio.
(b) Shareholders shall have no preemptive or other right to subscribe to
any additional Shares or other securities issued by the Trust or the
Trustees, whether of the same or other Portfolio (or Class).
(c) All consideration received by the Trust for the issue or sale of Shares
of a particular Portfolio, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits,
and proceeds thereof, including any proceeds derived from the sale,
exchange, or liquidation of such
6
assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall be held in separate
and distinct records and accounted for in such separate and distinct
records separately from the other assets of the Trust and of every
other Portfolio and may be referred to herein as "assets belonging to"
that Portfolio. The assets belonging to a particular Portfolio shall
belong to that Portfolio for all purposes, and to no other Portfolio,
subject only to the rights of creditors of that Portfolio. In addition,
any assets, income, earnings, profits or funds, or payments and
proceeds with respect thereto, which are not readily identifiable as
belonging to any particular Portfolio shall be allocated by the
Trustees between and among one or more of the Portfolios in such manner
as the Trustees, in their sole discretion, deem fair and equitable.
Each such allocation shall be conclusive and binding upon the
Shareholders of all Portfolios thereof for all purposes, and such
assets, income, earnings, profits, or funds, or payments and proceeds
with respect thereto shall be assets belonging to that Portfolio.
(d) Each Class of a Portfolio shall have a proportionate undivided interest
(as determined by or at the direction of, or pursuant to authority
granted by, the Trustees, consistent with industry practice)
("Proportionate Interest") in the net assets belonging to that
Portfolio. References herein to assets, expenses, charges, costs, and
reserves "allocable" or "allocated" to a particular Class of a
Portfolio shall mean the aggregate amount of such item(s) of the
Portfolio multiplied by the Class's Proportionate Interest.
(e) A particular Portfolio shall be charged with the liabilities of that
Portfolio, and all expenses, costs, charges and reserves attributable
to any particular Portfolio shall be borne by such Portfolio; provided
that the Trustees may, in their sole discretion, allocate or authorize
the allocation of particular expenses, costs, charges, and/or reserves
of a Portfolio to fewer than all the Classes thereof. Class Expenses
shall, in all cases, be allocated to the Class for which such
Class Expenses were incurred. Any general liabilities, expenses, costs,
charges or reserves of the Trust (or any Portfolio) that are not
readily identifiable as chargeable to or bearable by any particular
Portfolio (or any particular Class) shall be allocated and charged by
the Trustees between or among any one or more of the Portfolios (or
Classes) in such manner as the Trustees in their sole discretion deem
fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Portfolios (or Classes) for all
purposes. Without limitation of the foregoing provisions of this
Section 2.5(e), (i) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Portfolio shall be enforceable against the assets of such
Portfolio only, and not against the assets of the Trust generally or
assets belonging to any other Portfolio, and (ii) none of the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Trust generally that have not
been allocated to a specified Portfolio, or with respect to any other
Portfolio, shall be enforceable against the assets of such specified
Portfolio. Notice of this contractual limitation on inter-Portfolio
liabilities is set forth in the Trust's Certificate of Trust described
in Section 1.4, and, accordingly, the statutory provisions of
Section 3804 of the Delaware Act relating to limitations on
inter-Portfolio liabilities (and the statutory effect under
Section 3804 of setting forth such notice in the Certificate of Trust)
are applicable to the Trust and each Portfolio.
7
(f) Notwithstanding any other provisions of this Agreement, no dividend or
distribution on the Shares of any Portfolio, including any distribution
paid in connection with termination of the Trust or such Portfolio or
any Class of such Portfolio, nor any redemption or repurchase of, the
Shares of such Portfolio or Class shall be effected by the Trust other
than from the assets held with respect to such Portfolio, nor shall any
Shareholder of any particular Portfolio otherwise have any right or
claim against the assets held with respect to any other Portfolio
except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Portfolio.
(g) Except as provided for in Section 2.9, Shares redeemed or repurchased
by a Portfolio or the Trust shall be deemed to be canceled.
(h) Any Trustee, officer or other agent of the Trust, and any organization
in which any such Person has an economic or other interest, may
acquire, own, hold and dispose of Shares in the Trust, whether such
Shares are authorized but unissued, or already outstanding, to the same
extent as if such Person were not a Trustee, officer or other agent of
the Trust; and the Trust may issue and sell and may purchase such
Shares from any such Person or any such organization, subject to the
limitations, restrictions or other provisions applicable to the sale or
purchase of such shares herein, the 1940 Act and other applicable law.
(i) The Trust may issue Shares in fractional denominations of 1/1000/th/ of
a Share or integral multiples thereof to the same extent as its whole
Shares, and Shares in fractional denominations shall be Shares having
proportionately to the respective fractions represented thereby all the
rights of whole Shares of the same Portfolio (or Class), including
without limitation, the right to vote, the right to receive dividends
and distributions and the right to participate upon termination of the
Trust or any Portfolio.
(j) The Trustees shall have the authority to provide that the Shareholders
of any Portfolio or Class shall have the right to exchange such Shares
for Shares of one or more other Portfolio or Class of Shares or for
interests in one or more trusts, corporations or other business
entities (or a portfolio or series or class of any of the foregoing) in
accordance with such requirements and procedures as may be established
by the Trustees.
All references to Shares in this Agreement shall be deemed to be shares
of any or all Portfolios, or Classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to each Portfolio
of the Trust, and each Class thereof, except as the context otherwise requires.
Section 2.6 Investment in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or
a combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio (or Class) as the Shareholder
shall select. The Trustees and their authorized agents shall have the right to
refuse to issue Shares to any Person at any time and for any reason.
8
Section 2.7 Personal Liability of Shareholders. No Shareholder of the Trust
shall be personally liable for the debts, liabilities, obligations and expenses
incurred by, contracted for, or otherwise existing with respect to, the Trust
or any Portfolio (or Class) thereof. Neither the Trust nor the Trustees, nor
any officer, employee, or agent of the Trust shall have any power to bind
personally any Shareholder or to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder
may at any time personally agree to pay by way of subscription for any Shares
or otherwise. The Shareholders shall be entitled, to the fullest extent
permitted by applicable law, to the same limitation of personal liability as is
extended under the Delaware General Corporation Law to stockholders of private
corporations for profit. Every note, bond, contract or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust or to any
Portfolio shall include a recitation limiting the obligation represented
thereby to the Trust and its assets or to one or more Portfolios and the assets
belonging thereto (but the omission of such a recitation shall not operate to
bind any Shareholder or Trustee of the Trust or otherwise limit any benefits
set forth in the Delaware Act that may be applicable to such Persons).
Section 2.8 Assent to Agreement. Every Shareholder, by virtue of having
purchased a Share, shall be bound by, the terms of the Governing Instrument.
The death, incapacity, dissolution, termination or bankruptcy of a Shareholder
during the continuance of the Trust shall not operate to terminate the Trust
nor entitle the representative of any deceased Shareholder to an accounting or
to take any action in court or elsewhere against the Trust or the Trustees, but
only to rights of said decedent under the Governing Instrument. Ownership of
Shares shall not entitle the Shareholder to any title in or to the whole or any
part of the Trust Property or right to call for a partition or division of the
same or for an accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Ownership of Shares shall not make the Shareholders
third party beneficiaries of any contract entered into by the Trust.
Section 2.9 Purchases of Shares Among Portfolios. The Trust may purchase, on
behalf of any Portfolio (the "Purchasing Portfolio"), Shares of another
Portfolio (the "Selling Portfolio") or any Class thereof. Shares of the Selling
Portfolio so purchased on behalf of the Purchasing Portfolio shall be
Outstanding Shares, and shall have all preferences, voting powers, rights and
privileges established for such Shares.
Section 2.10 Disclosure of Holding. The Shareholders shall upon demand
disclose to the Trustees in writing such information with respect to direct or
indirect ownership of Shares as the Trustees deem to be (i) in the best
interests of the Trust or (ii) necessary to comply with the provisions of the
Code, the 1940 Act or other applicable laws or regulations, or to comply with
the requirements of any other taxing or regulatory authority.
ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware, in
any and all states of the United States of America, in the District of
Columbia, in any and all commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any and all foreign
jurisdictions and to do all such other things and execute all such instruments
as they deem necessary, proper or desirable in
9
order to promote the interests of the Trust although such things are not herein
specifically mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Agreement, the presumption shall be in favor of a grant of
power to the Trustees.
The enumeration of any specific power in this Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court or other authority.
Section 3.2 Trustees. The number of Trustees shall be such number as shall
be fixed from time to time by a majority of the Trustees; provided, however,
that the number of Trustees shall in no event be less than two (2) nor more
than (15). The natural persons who have executed this Agreement shall be the
Trustees as of the date hereof.
Section 3.3 Terms of Office of Trustees. The Trustees shall hold office
during the lifetime of this Trust, and until its termination as herein
provided; except that (A) any Trustee may resign his trusteeship or may retire
by written instrument signed by him and delivered to the other Trustees, which
shall take effect upon such delivery or upon such later date as is specified
therein; (B) any Trustee may be removed at any time by written instrument
signed by at least two-thirds of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective; (C) any Trustee
who has died, become physically or mentally incapacitated by reason of disease
or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; (D) a Trustee may be removed at any meeting of the Shareholders
by a vote of the Shareholders owning at least two-thirds (66 2/3%) of the
Outstanding Shares; and (E) a Trustee shall be retired in accordance with the
terms of any retirement policy adopted by the Trustees and in effect from time
to time.
Section 3.4 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee,
or a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all
the powers hereunder and the determination of the other Trustees of such
vacancy shall be conclusive. In the case of any vacancy, the remaining Trustees
may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two (2) Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in
office or by resolution of the Board of Trustees, duly adopted, which shall be
recorded in the minutes of a meeting of the Trustees, whereupon the appointment
shall take effect.
Shareholders shall not be entitled to elect Trustees except as required by
the 1940 Act, or as otherwise considered necessary or desirable by the Trustees
in their sole discretion. To the extent required by the 1940 Act, the
Shareholders shall elect the Trustees on such dates as the Trustees may fix
from time to time. The Shareholders may elect Trustees at any meeting of
Shareholders called by the Trustees for that purpose. In the event that after
the proxy material has been printed for a meeting of Shareholders at which
Trustees are to be elected any one or more nominees named in such proxy
material dies or become incapacitated or is otherwise unable or unwilling to
serve, the authorized number of Trustees shall be automatically reduced by the
number of such nominees, unless the Board of Trustees prior to the meeting
shall otherwise determine. A meeting of Shareholders for the purpose of
electing or removing one or more Trustees shall be called as provided in the
Bylaws. An appointment of a Trustee may be made by the Trustees then in office
in anticipation of a vacancy to occur by reason of retirement, resignation, or
removal of a Trustee, or an increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at the time or
after the expected vacancy occurs.
10
Section 3.5 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall fewer
than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided.
Section 3.6 Effect of Death, Resignation, etc. of a Trustee. The declination
to serve, death, resignation, retirement, removal, incapacity, or inability of
the Trustees, or any one of them, shall not operate to terminate the Trust or
to revoke any existing agency created pursuant to the terms of this Agreement.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in
office, regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Agreement.
Section 3.7 Ownership of Assets of the Trust. The assets of the Trust and of
each Portfolio thereof shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal title in all of the assets of the Trust and
the right to conduct any business shall at all times be considered to be held
by or in the name of the Trust, except that the Trustees may cause legal title
to any Trust Property to be held by the Trustees or in the name any other
Person as nominee on behalf of the Trust. The right, title and interest of the
Trustees in the Trust Property shall vest automatically in each Person who may
hereafter become a Trustee. Upon the resignation, retirement, removal,
declination to serve, incapacity, or death of a Trustee, he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered. No creditor of any Trustee shall have any
right to obtain possession, or otherwise exercise legal or equitable remedies
with respect to, any Trust Property with respect to any claim against, or
obligation of, such Trustee in its individual capacity and not related to the
Trust or any Portfolio or Class of the Trust. No Shareholder shall be deemed to
have a severable ownership in any individual asset of the Trust, or belonging
to any Portfolio, or allocable to any Class thereof, or any right of partition
or possession thereof, but each Shareholder shall have, except as otherwise
provided for herein, a proportionate undivided beneficial interest in the Trust
or in assets belonging to the Portfolio (or allocable to the Class) in which
the Shareholder holds Shares. The Shares shall be personal property giving only
the rights specifically set forth in this Agreement or the Delaware Act.
Section 3.8 Legal Standard. The Trustees shall be subject to the same
fiduciary duties to which the directors of a Delaware corporation would be
subject if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were directors of
such Delaware corporation, and such modified duties shall replace any fiduciary
duties to which the Trustees would otherwise be subject. Without limiting the
generality of the foregoing, all actions and omissions of the Trustees shall be
evaluated under the doctrine commonly referred to as the "business judgment
rule," as defined and developed under Delaware law, to the same extent that the
same actions or omissions of directors of a Delaware corporation in a
substantially similar circumstance would be evaluated under such doctrine.
Notwithstanding the foregoing, the provisions of the Governing Instrument, to
the extent that they modify, restrict or eliminate the duties (including
fiduciary duties), and liabilities relating thereto, of a Trustee otherwise
applicable
11
under the foregoing standard or otherwise existing at law (statutory or common)
or in equity, are agreed by each Shareholder and the Trust to replace such
duties and liabilities of such Trustee under the foregoing standard or
otherwise existing at law (statutory or common) or in equity.
Section 3.9 Other Business Interests. The Trustees shall devote to the
affairs of the Trust such time as may be necessary for the proper performance
of their duties hereunder, but neither the Trustees nor the officers,
directors, shareholders, partners or employees of the Trustees, if any, shall
be expected to devote their full time to the performance of such duties. The
Trustees, or any Affiliated Person, shareholder, officer, director, partner or
employee thereof, or any Person owning a legal or beneficial interest therein,
may engage in, or possess an interest in, any business or venture other than
the Trust, of any nature and description, independently or with or for the
account of others. None of the Trust or any Shareholder shall have the right to
participate or share in such other business or venture or any profit or
compensation derived therefrom.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. Subject to the provisions of this Agreement, the
business of the Trust shall be managed by the Trustees, and the Trustees shall
have all powers necessary or convenient to carry out that responsibility
including the power to engage in securities transactions of all kinds on behalf
of the Trust. The Trustees in all instances shall act as principals, and are
and shall be free from the control of the Shareholders. The Trustees shall have
full power and authority to do any and all acts and to make and execute any and
all contracts and instruments that they may consider necessary or appropriate
in connection with the management of the Trust. Without limiting the foregoing
and subject to any applicable limitation in the Governing Instrument or
applicable law, the Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited
by any present or future law or custom in regard to investments by
Trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate,
write options on, distribute and otherwise deal with and lease any or
all of the assets of the Trust;
(b) To operate as, and to carry on the business of, an investment company,
and to exercise all the powers necessary and appropriate to the conduct
of such operations;
(c) To borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation or engagement of any other
Person and to lend Trust Property;
(d) To provide for the distribution of Shares either through a principal
underwriter in the manner hereafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To adopt Bylaws not inconsistent with this Agreement providing for the
conduct of the business of the Trust and to amend and repeal them to
the extent that they do not reserve such right to the Shareholders;
such Bylaws shall be deemed incorporated and included in the Governing
Instrument;
12
(f) To elect and remove such officers and appoint and terminate such agents
as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other domestic or
foreign entities as custodians of any assets of the Trust subject to
any conditions set forth the Governing Instrument;
(h) To retain one or more transfer agents and shareholder servicing agents;
(i) To set record dates in the manner provided herein or in the Bylaws;
(j) To delegate such authority as they consider desirable to any officers
of the Trust and to any investment adviser, manager, administrator,
custodian, underwriter or other agent or independent contractor;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the right of Shareholders, if any, to vote on such transaction pursuant
to Section 6.1;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies and powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities or property as the
Trustee shall deem proper;
(m) To exercise powers and rights of subscription or otherwise that in any
manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form;
or either in the name of the Trust or of a Portfolio or a custodian or
a nominee or nominees, subject in either case to proper safeguards
according to the usual practice of Delaware statutory trusts or
investment companies;
(o) To establish separate and distinct Portfolios with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof and to establish
Classes of such Portfolios having relative rights, powers and duties as
they may provide consistent with this Agreement and applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular
Portfolio or to apportion the same between or among two or more
Portfolios, provided that any liabilities or expenses incurred by a
particular Portfolio shall be payable solely out of the assets
belonging to that Portfolio as provided for in Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, with respect to
any security held in the Trust; to consent to any contract, lease,
mortgage, purchase, or sale of property by such corporation or concern,
and to pay calls or subscriptions with respect to any security held in
the Trust;
13
(r) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(s) To declare and pay dividends and make distributions of income and of
capital gains and capital to Shareholders in the manner hereinafter
provided;
(t) To establish, from time to time, a minimum investment for Shareholders
in the Trust or in one or more Portfolios or Classes, and to require
the redemption of the Shares of any Shareholder whose investment is
less than such minimum upon giving notice to such Shareholder;
(u) To redeem or repurchase Shares as provided for in this Agreement, upon
such terms and conditions as the Trustees shall establish;
(v) To establish one or more committees or sub-committees, to delegate any
of the powers of the Trustees to said committees or sub-committees and
to adopt a written charter for one or more of such committees or
sub-committees governing its membership, duties and operations and any
other characteristics as the Trustees may deem proper, each of which
committees and sub-committees may consist of less than the whole number
of Trustees then in office, and may be empowered to act for and bind
the Trustees, the Trust and the Portfolios, as if the acts of such
committee or sub-committee were the acts of all the Trustees then in
office;
(w) To interpret the investment policies, practices or limitations of any
Portfolios;
(x) To establish a registered office and have a registered agent in the
State of Delaware;
(y) To enter into joint ventures, general or limited partnerships, limited
liability companies, and any other combinations and associations;
(z) Subject to the 1940 Act, to engage in any other lawful act or activity
in which a statutory trust organized under the Delaware Act may engage;
and
(aa) In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary,
suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Portfolio, and not an action in
an individual capacity.
14
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or
upon their order.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The Trustees
shall have the power to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, and otherwise deal in Shares and,
subject to the provisions set forth in Articles II and VII hereof, to apply to
any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or any assets belonging to the
particular Portfolio or any assets allocable to the particular Class, with
respect to which such Shares are issued.
Section 4.3 Principal Transactions. The Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser, distributor, or transfer agent for the Trust or
with any Affiliated Person of such Person; and the Trust may employ any such
Person, or firm or Company in which such Person is an Affiliated Person, as
broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.4 Payment of Expenses by the Trust. The Trustees are authorized to
pay or cause to be paid out of the principal or income of the Trust or any
Portfolio, or partly out of the principal and partly out of income, and to
charge or allocate to, between or among such one or more of the Portfolios (or
Classes), as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust or Portfolio (or Class), or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser and manager, administrator,
principal underwriter, auditors, counsel, custodian, transfer agent,
shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or
proper to incur.
Section 4.5 Trustee Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust. They may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, administrative, legal, accounting, investment
banking, underwriting, brokerage, or investment dealer or other services and
the payment for the same by the Trust.
Section 4.6 Independent Trustee. A Trustee who is an "Independent Trustee,"
as that term is defined in the Delaware Act, shall be deemed to be independent
and disinterested for all purposes when making any determinations or taking any
action as a Trustee.
15
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser. The Trustees may in their discretion, from
time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ, from time
to time, one or more sub-advisers to perform such of the acts and services of
the investment adviser, and upon such terms and conditions, as may be agreed
upon among the Trustees, the investment adviser and sub-adviser. Any references
in this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator,
custodian, and any other service providers they deem to be in the best interest
of the Trust.
Section 5.3 Parties to Contract. Any contract of the character described in
Sections 5.1 and 5.2 may be entered into with any corporation, firm,
partnership, trust, association or other legal entity, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, member, employee or agent or hold any similar office with respect
to such other party to the contract.
Section 5.4 Miscellaneous.
(a) The fact that (i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent of or
for any Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing, custodian or other agency contract may have been or may
hereafter be made, or that any such Company, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or that
(ii) any Company with which an advisory or administration contract or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have
been or may hereafter be made also has an advisory or administration
contract, or principal underwriter's or distributor's contract, or
transfer, shareholder servicing, custodian or other agency contract
with one or more other companies, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or
executing the same or create any liability or accountability to the
Trust or its Shareholders.
(b) The authority of the Trustees hereunder to authorize the Trust to enter
into contracts or other agreements or arrangements shall include the
authority of the Trustees to modify, amend, waive any provision of,
supplement, assign all or a portion of, novate, or terminate such
contracts, agreements or arrangements. The enumeration of any specific
contracts in this Article V shall
16
in no way be deemed to limit the power and authority of the Trustees as
otherwise set forth in this Agreement to authorize the Trust to employ,
contract with or make payments to such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers. The Shareholders shall have power to vote only
to: (i) elect Trustees, provided that a meeting of Shareholders has been called
for that purpose; (ii) remove Trustees, provided that a meeting of Shareholders
has been called for that purpose; (iii) approve the sale of all or
substantially all the assets of the Trust or any Portfolio or Class, unless the
primary purpose of such sale is to change the Trust's domicile or form of
organization or form of statutory trust; (iv) approve the merger or
consolidation of the Trust or any Portfolio or Class with and into another
Company or with and into any Portfolio or Class of the Trust, unless (A) the
primary purpose of such merger or consolidation is to change the Trust's
domicile or form of organization or form of statutory trust, or (B) after
giving effect to such merger or consolidation, based on the number of
Outstanding Shares as of a date selected by the Trustees, the Shareholders of
the Trust or such Portfolio or Class will have a majority of the outstanding
shares of the surviving Company or Portfolio or Class thereof, as the case may
be; (v) approve any amendment to this Article VI, Section 6.1; and (vi) approve
such additional matters as may be required by law or as the Trustees, in their
sole discretion, shall determine.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law or the
Governing Instrument that may be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted together, except when required by applicable law or when the Trustees
have determined that the matter affects the interests of one or more Portfolios
(or Classes), then only the Shareholders of all such affected Portfolios (or
Classes) shall be entitled to vote thereon. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote, and each
fractional Share shall be entitled to a proportionate fractional vote.
Provisions relating to meetings, quorum, required vote, record date and other
matters relating to Shareholder voting rights are as provided in the Bylaws.
Shareholders shall not be entitled to cumulative voting in the election
of Trustees or on any other matter.
Only Record Owners shall have the power to cast a vote at a meeting of
Shareholders subject to the voting provisions set forth in the Governing
Instrument. Beneficial owners of Shares who are not Record Owners shall not be
entitled to cast a vote at a meeting of Shareholders but shall be entitled to
provide voting instructions to corresponding Record Owners, subject to any
limitations imposed by applicable law.
Section 6.2 Additional Voting Powers and Voting Requirements for Certain
Actions. Notwithstanding any other provision of this Agreement, the
Shareholders shall have power to vote to approve any amendment to Section 8.4
of this Agreement that would have the effect of reducing the indemnification
provided thereby to Shareholders or former Shareholders, and any repeal or
amendment of this sentence, and any such action shall require the affirmative
vote or consent of Shareholders owning at least two-thirds (66 2/3%) of the
Outstanding Shares entitled to vote thereon. In addition, the removal of one or
more Trustees by the Shareholders shall require the affirmative vote or consent
of Shareholders owning at least two-thirds (66 2/3%) of the Outstanding Shares
entitled to vote thereon.
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The voting requirements set forth in this Section 6.2 shall be in
addition to, and not in lieu of, any vote or consent of the Shareholders
otherwise required by applicable law (including, without limitation, any
separate vote by Portfolio (or Class) that may be required by the 1940 Act or
by other applicable law) or by this Agreement.
ARTICLE VII
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Net Asset Value. Subject to applicable federal law including the
1940 Act and Article II hereof, the Trustees, in their sole discretion, may
prescribe (and delegate to any officer of the Trust or any other Person or
Persons the right and obligation to prescribe) such bases and time (including
any methodology or plan) for determining the per Share or net asset value of
the Shares of any Portfolio or Class or net income attributable to the Shares
of any Portfolio or Class, or the declaration and payment of dividends and
distributions on the Shares of any Portfolio or Class and the method of
determining the Shareholders to whom dividends and distributions are payable,
as they may deem necessary or desirable.
Section 7.2 Distributions. The Trustees may from time to time declare and
pay dividends and make other distributions with respect to any Portfolio, or
Class thereof, which may be from income, capital gains or capital. The amount
of such dividends or distributions and the payment of them and whether they are
in cash or any other Trust Property shall be wholly in the discretion of the
Trustees, although the Trustees pursuant to Section 4.1(j) may delegate the
authority to set record, declaration, payment and ex-dividend dates, determine
the amount of dividends and distributions and pay such dividends and
distributions. Dividends and other distributions may be paid pursuant to a
standing resolution adopted once or more often as the Trustees determine. The
Trustees shall have the power and authority to amend, correct or change the
amount of any declared dividend or distribution from time to time until such
dividend or distribution has been paid to Shareholders. All dividends and other
distributions on Shares of a particular Portfolio or Class shall be distributed
pro rata to the Shareholders of that Portfolio or Class, as the case may be, in
proportion to the number of Shares of that Portfolio or Class they held on the
record date established for such payment, provided that such dividends and
other distributions on Shares of a Class shall appropriately reflect
Class Expenses and other expenses allocated to that Class. The Trustees may
adopt and offer to Shareholders such dividend reinvestment plans, cash
distribution payment plans, or similar plans as the Trustees deem appropriate.
Section 7.3 Redemptions. The Trust shall purchase such Shares as are offered
by any Shareholder for redemption, upon the presentation of a proper instrument
of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in accordance
with such other procedures for redemption as the Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof as
determined by the Trustees (or by such Person or Persons to whom such
determination has been delegated), in accordance with any applicable provisions
of this Agreement and applicable law, less any fees imposed on such redemption.
Unless extraordinary circumstances exist, payment for said Shares shall be made
by the Trust to the Shareholder within seven (7) days after the date on which
the request is made in proper form. The obligation set forth in this
Section 7.3 is subject to the provision that in the event that any time the New
York Stock Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the rules and regulations or an order of the
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Commission during periods when trading on the Exchange is restricted or during
any emergency which makes it impracticable for the Trust to dispose of the
investments of the Trust or any applicable Portfolio or to determine fairly the
value of the net assets held with respect to the Trust or such Portfolio or
during any other period permitted by order of the Commission for the protection
of investors, such obligations may be suspended or postponed by the Trustees.
In the case of a suspension of the right of redemption as provided herein, a
Shareholder may either withdraw the request for redemption or receive payment
based on the net asset value per Share next determined after the termination of
such suspension, less any fees imposed on such redemption. Subject to
applicable federal law including the 1940 Act, the redemption price may in any
case or cases be paid wholly or partly in kind if the Trustees determine in
their sole discretion that such payment is advisable in the interest of the
remaining Shareholders of the Trust or any applicable Portfolio or
Class thereof for which the Shares are being redeemed, and the fair value,
selection and quantity of securities or other property so paid or delivered as
all or part of the redemption price may be determined under procedures approved
by the Trustees in their sole discretion. In no case shall the Trust be liable
for any delay of any corporation or other Person in transferring securities
selected for delivery as all or part of any payment in kind.
Section 7.4 Redemptions at the Option of the Trust. At the option of the
Board of Trustees, the Trust may, from time to time, without the vote of the
Shareholders, but subject to the 1940 Act, redeem shares of any Shareholder or
authorize the closing of any Shareholder account, subject to such conditions as
may be established from time to time by the Board of Trustees and disclosed to
Shareholders.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer of the Trust, when
acting in such capacity, shall not be personally liable to any person for any
act, omission or obligation of the Trust or any Trustee or officer of the
Trust; provided, however, that nothing contained herein shall protect any
Trustee or officer against any liability to the Trust or to Shareholders to
which he would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person shall
be indemnified by the Trust to the fullest extent permitted by the Delaware
Act, the Bylaws and other applicable law.
Section 8.3 Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Covered Person in connection with any proceeding in
which such Covered Person becomes involved by virtue of such Covered Person's
actions, or omissions to act, in its capacity or former capacity with the
Trust, whether or not the Trust would have the power to indemnify such Covered
Person against such liability.
Section 8.4 Indemnification of Shareholders. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable solely by
reason of his being or having been a Shareholder of the Trust or any Portfolio
or Class and not because of his acts or omissions or for some other reason, the
Shareholder or former Shareholder (or his heirs, executors, administrators or
other legal representatives, or, in the case of a corporation or other entity,
its corporate or general successor) shall be entitled, out of the assets
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belonging to the applicable Portfolio (or allocable to the applicable Class),
to be held harmless from and indemnified against all loss and expense arising
from such liability in accordance with the Bylaws and applicable law. The
Trust, on behalf of the affected Portfolio (or Class), shall upon request by
the Shareholder, assume the defense of any such claim made against the
Shareholder for any act or obligation of that Portfolio (or Class).
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers
or any Shareholder. All persons extending credit to, contracting with or having
any claim against the Trust or the Trustees in their capacity as such shall
look only to the assets of the appropriate Portfolio or, until the Trustees
shall have established any separate Portfolio, of the Trust for payment under
such credit, contract or claim; and neither the Shareholders, the Trustees, nor
the Trust's officers nor any of the agents of the Trustees whether past,
present or future, shall be personally liable therefor.
The Board of Trustees shall have the power, in its discretion, to make
an initial entity classification election, and to change any such entity
classification election, of the Trust and any Portfolio for U.S. federal income
tax purposes as may be permitted or required under the Code, without the vote
or consent of any Shareholder. In furtherance thereof, the Board of Trustees,
or an appropriate officer as determined by the Board of Trustees, is authorized
(but not required) to make and sign any such entity classification election on
Form 8832, Entity Classification Election (or successor form thereto), on
behalf of the Trust or any Portfolio, sign the consent statement contained
therein on behalf of all of the Shareholders thereof, and file the same with
the U.S. Internal Revenue Service.
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder in good
faith and with reasonable care under the circumstances then prevailing shall be
binding upon everyone interested. Subject to the provisions of Article VIII and
to Section 9.1, the Trustees shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Agreement, and
subject to the provisions of Article VIII and Section 9.1, shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is obtained. The appointment, designation or
identification of a Trustee as chair of the Trustees, a member or chair of a
committee of the Trustees, an expert on any topic or in any area (including an
audit committee financial expert), or the lead Independent Trustee, or any
other special appointment, designation or identification of a Trustee, shall
not impose on that person any standard of care or liability that is greater
than that imposed on that person as a Trustee in the absence of the
appointment, designation or identification, and no Trustee who has special
skills or expertise, or is appointed, designated or identified as aforesaid,
shall be held to a higher standard of care by virtue thereof. In addition, no
appointment, designation or identification of a Trustee as aforesaid shall
affect in any way that Trustee's rights or entitlement to indemnification or
advancement of expenses.
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Section 9.3 Termination of Trust or Portfolio or Class.
(a) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved at any time by the
Trustees (without Shareholder approval). A Portfolio may be terminated
at any time by the Trustees (without Shareholder approval). Any
Class may be terminated at any time by the Trustees (without
Shareholder approval). In addition, the dissolution of the Trust shall
automatically terminate each Portfolio and each Class.
(b) On dissolution of the Trust or termination of any Portfolio pursuant to
paragraph (a) above,
(1) the Trust or that Portfolio thereafter shall carry on no business
except for the purpose of winding up its affairs,
(2) the Trustees shall (i) proceed to wind up the affairs of the Trust
or that Portfolio, and all powers of the Trustees under this
Agreement with respect thereto shall continue until such affairs
have been wound up, including the powers to fulfill or discharge
the contracts of the Trust or that Portfolio, (ii) collect its
assets or the assets belonging thereto, (iii) sell, convey,
assign, exchange, or otherwise dispose of all or any part of those
assets to one or more persons at public or private sale for
consideration that may consist in whole or in part of cash,
securities, or other property of any kind, ((iv) pay or make
reasonable provision (including through the use of a liquidating
trust) to pay all claims and obligations of the Trust or that
Portfolio, including all contingent, conditional or unmatured
claims and obligations known to the Trust or that Portfolio, and
all claims and obligations which are known to the Trust or that
Portfolio, but for which the identity of the claimant is unknown,
and claims and obligations that have not been made known to the
Trust or that Portfolio or that have not arisen but that, based on
the facts known to the Trust or that Portfolio, are likely to
arise or to become known to the Trust within 10 years after the
date of dissolution, and (v) do all other acts appropriate to
liquidate its business, and
(3) after paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities, and
refunding agreements as they deem necessary for their protection,
the Trustees shall distribute the remaining assets ratably among
the Shareholders of the Trust or that Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(1) the Trust thereafter shall no longer issue Shares of that Class,
(2) the Trustees shall do all other acts appropriate to terminate the
Class, and
(3) the Trustees shall distribute ratably among the Shareholders of
that Class, in cash or in kind, an amount equal to the
Proportionate Interest of that Class in the net assets of the
Portfolio (after taking into account any Class Expenses or other
fees, expenses, or charges allocable thereto), and in connection
with any such distribution in cash the Trustees are authorized to
sell, convey, assign, exchange or otherwise dispose of such assets
of the Portfolio of which that Class is a part as they deem
necessary. Alternatively, in connection with the termination of
any Class, the Trustees may treat such termination as a
21
redemption of the Shareholders of such Class effected pursuant to
Section 7.3 of this Agreement provided that the costs relating to
the termination of such Class shall be included in the
determination of the net asset value of the Shares of such
Class for purposes of determining the redemption price to be paid
to the Shareholders of such Class (to the extent not otherwise
included in such determination).
(d) In connection with the dissolution and liquidation of the Trust or the
termination of any Portfolio or any Class, the Trustees may provide for
the establishment of a liquidating trust or similar vehicle.
(e) On dissolution of the Trust, following completion of winding up of its
business, any one (1) Trustee shall execute, and cause to be filed, a
certificate of cancellation, with the office of the Secretary of State
of the State of Delaware in accordance with the provisions of
Section 3810 of the Delaware Act, whereupon the Trust shall terminate
and the Trustees and the Trust shall be discharged from all further
liabilities and duties hereunder with respect thereto. The Trustees
shall not be personally liable to the claimants of the dissolved Trust
by reason of the Trustees' actions in winding up the Trust's affairs if
the Trustees complied with Section 3808(e) of the Delaware Act.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to right of
Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may cause
(i) the Trust or one or more of its Portfolios to the extent consistent with
applicable law to sell all or substantially all of its assets to, or be merged
into or consolidated with, another Portfolio, statutory trust (or series
thereof) or Company (or series thereof), (ii) the Shares of the Trust or any
Portfolio (or Class) to be converted into beneficial interests in another
statutory trust (or series thereof) created pursuant to this Section 9.4, (iii)
the Shares of any Class to be converted into another Class of the same
Portfolio, or (iv) the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. In all respects not governed by
statute or applicable law, the Trustees shall have power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or losses
of the Trust may be transferred and to provide for the conversion of Shares of
the Trust or any Portfolio (or Class) into beneficial interests in such
separate statutory trust or trusts (or series or class thereof).
Section 9.5 Filing of Copies, References, Headings. The original or a copy
of this Agreement or any amendment hereto or any supplemental agreement shall
be kept at the office of the Trust where it may be inspected by any
Shareholder. Headings are placed herein for convenience of reference only and
in case of any conflict, the text of this Agreement, rather than the headings,
shall control. This Agreement and any document, consent or instrument
referenced in or contemplated by this Agreement or the Bylaws may be executed
in any number of counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same instrument. To the
extent permitted by the 1940 Act, (i) any document, consent, instrument or
notice referenced in or contemplated by this Agreement or the Bylaws that is to
be executed by one or more Trustees may be executed by means of original,
facsimile or electronic signature and (ii) any document, consent, instrument or
notice referenced in or contemplated by this Agreement or the Bylaws that is to
be delivered by one or more Trustees may be delivered by facsimile or
electronic means (including e-mail), unless, in the case of either clause
(i) or (ii), otherwise determined by the Trustees. The terms "include,"
"includes" and "including" and any comparable terms shall be deemed to mean
"including, without limitation." Any reference to any statute, law, code, rule
or regulation shall be deemed to refer to such statute, law, code, rule or
regulation as amended or restated from time to time and any successor thereto.
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Section 9.6 Governing Law. The Trust and the Governing Instrument (including
this Agreement) and the rights, obligations and remedies of the Trustees and
Shareholders hereunder, are to be governed by and construed and administered
according to the Delaware Act, including the provision that gives maximum
freedom to contract, and the other laws of the State of Delaware and the
applicable provisions of the 1940 Act. Notwithstanding the foregoing, the
following provisions shall not be applicable to the Trust, the Trustees, the
Shareholders or the Governing Instrument: (A) the provisions of Sections 3533,
3540, 3561 and 3583(a) of Title 12 of the Delaware Code or (B) any provisions
of the laws (statutory or common) of the State of Delaware (other than the
Delaware Act) pertaining to trusts which relate to or regulate (i) the filing
with any court or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other sums
payable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the
indemnification, acts or powers of trustees or other Persons, which are
inconsistent with the limitations of liabilities or authorities and powers of
the Trustees or officers of the Trust set forth or referenced in the Governing
Instrument.
The Trust shall be of the type commonly called a "statutory trust," and
without limiting the provisions hereof, the Trust may exercise all powers which
are ordinarily exercised by such a trust under Delaware law. The Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts or actions that may be engaged in by trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may not exercise such power
or privilege or take such actions; provided, however, that the exercise of any
such power, privilege or action shall not otherwise violate applicable law.
Section 9.7 Amendments. The Trustees may amend this Agreement by making an
amendment to this Agreement or to Schedule A, an agreement supplemental hereto,
or an amended and restated trust instrument; and no vote or consent of any
Shareholder shall be required for any amendment to this Agreement except as
specifically provided in Article VI hereof, as determined by the Trustees in
their sole discretion, or as required by federal law including the 1940 Act,
but only to the extent so required. Any such amendment, having been approved by
a Majority Trustee Vote, shall become effective, unless otherwise provided by
such Trustees, upon being executed by a duly authorized officer of the Trust. A
certification signed by a duly authorized officer of the Trust setting forth an
amendment to this Agreement and reciting that it was duly adopted by the
Shareholders or by the Trustees as aforesaid, or a copy of this Agreement, as
amended, executed by a majority of the Trustees, or a duly authorized officer
of the Trust, shall be conclusive evidence of such amendment when lodged among
the records of the Trust. Any officer of the Trust is authorized from time to
time to restate this Agreement into a single instrument to reflect all
amendments hereto made in accordance with the terms hereof. The Certificate of
Trust of the Trust may be restated and/or amended by any Trustee as necessary
or desirable to reflect any change in the information set forth therein, and
any such restatement and/or amendment shall be effective immediately upon
filing with the office of the Secretary of the State of Delaware or upon such
future date as may be stated therein.
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Section 9.8 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 9.9 Inspection of Records. Every Trustee shall have the 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. Except as may be permitted by
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended from time to time, no Shareholder shall have the right to obtain from
the Trust a list of the Trust's Shareholders. Except as required by the 1940
Act, Shareholders shall have no right to inspect the records, documents,
accounts and books of the Trust. Any request to inspect the records of the
Trust shall be submitted by the Shareholder to the Trust in writing. Upon
receipt of any such request, the Trustees shall determine whether delivery of
records pertaining to such request is required by the 1940 Act or is otherwise
necessary or appropriate, as determined by the Trustees in their sole
discretion, and whether such request complies with the requirements of the 1940
Act and, if so, establish procedures for such inspection. To preserve the
integrity of the records, the Trust may provide certified copies of Trust
records rather than originals. The Trust shall not be required to create
records or obtain records from third parties to satisfy a Shareholder request.
The Trust may require a requesting Shareholder to pay in advance or otherwise
indemnify the Trust for the costs and expenses of such Shareholder's inspection
of records. The rights provided for in this Section 9.9 shall not extend to any
Person who is a Shareholder but not also a Record Owner.
Section 9.10 Use of the Name "Invesco". The Board of Trustees expressly
agrees and acknowledges that the name "Invesco" is the sole property of Invesco
Ltd. ("Invesco"). Invesco has granted to the Trust a non-exclusive license to
use such name as part of the name of the Trust now and in the future. The Board
of Trustees further expressly agrees and acknowledges that the non-exclusive
license granted herein may be terminated by Invesco if the Trust ceases to use
Invesco or one of its Affiliated Persons as investment adviser or to use other
Affiliated Persons or successors of Invesco for such purposes. In such event,
the non-exclusive license may be revoked by Invesco and the Trust shall cease
using the name "Invesco" or any name misleadingly implying a continuing
relationship between the Trust and Invesco or any of its Affiliated Persons, as
part of its name unless otherwise consented to by Invesco or any successor to
its interests in such name.
The Board of Trustees further understands and agrees that so long as Invesco
and/or any future advisory Affiliated Person of Invesco shall continue to serve
as the Trust's investment adviser, other registered open- or closed-end
investment companies ("funds") and other types of investment vehicles as may be
sponsored or advised by Invesco or its Affiliated Persons shall have the right
permanently to adopt and to use the name "Invesco" in their names and in the
names of any series or class of shares of such funds.
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Section 9.11 Derivative Actions. In addition to the requirements set forth
in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon the
Trustees to bring the subject action unless an effort to cause the
Trustees to bring such an action is not likely to succeed. For purposes
of this Section 9.11(a), a demand on the Trustees shall only be deemed
not likely to succeed and therefore excused if a majority of the Board
of Trustees is composed of Trustees who are not Independent Trustees
and the Board of Trustees has not established a committee to consider
the merits of such action or, if the Board of Trustees has established
such a committee, a majority of that committee is composed of Trustees
who are not Independent Trustees;
(b) Unless a demand is not required under paragraph (a) of this
Section 9.11, Shareholders eligible to bring such derivative action
under the Delaware Act who collectively hold Shares representing ten
percent (10%) or more of the total combined net asset value of all
Shares issued and outstanding, or of the Portfolios or Classes to which
such action relates if it does not relate to all Portfolios and
Classes, must join in the pre-suit demand for the Trustees to commence
such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 9.11, the Trustees must be afforded a reasonable amount of time
to consider such Shareholder request and to investigate the basis of
such claim. The Trustees shall be entitled to retain counsel or other
advisors in considering the merits of the request and may require an
undertaking by the Shareholders making such request to reimburse the
Trust for the expense of any such advisors in the event that the
Trustees determine not to bring such action.
(d) For purposes of this Section 9.11, the Board of Trustees may designate
a committee of one or more Trustees to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who are
Independent Trustees. The Trustees on that committee shall be entitled
to retain counsel or other advisors in considering the merits of the
request and may require an undertaking by the Shareholders making such
request to reimburse the Trust for the expense of any such advisors in
the event that the Trustees on the committee determine not to bring
such action.
(e) In addition to all suits, claims or other actions (collectively,
"claims") that under applicable law must be brought as derivative
claims, each Shareholder of the Trust or any Portfolio or Class thereof
agrees that any claim that affects all Shareholders of a Portfolio or
Class either equally or proportionately based on their number of Shares
in such Portfolio or Class, must be brought as a derivative claim
subject to this Section 9.11 irrespective of whether such claim
involves a violation of the Shareholders' rights under this Agreement
or any other alleged violation of contractual or individual rights that
might otherwise give rise to a direct claim.
Section 9.12 Jurisdiction and Waiver of Jury Trial. In accordance with
Section 3804(e) of the Delaware Act, any suit, action or proceeding brought by
or in the right of any Shareholder or any person claiming any interest in any
Shares seeking to enforce any provision of, based on any matter arising out of,
or in connection with, the Governing Instrument or the Trust, any Portfolio or
Class, or any Shares (including any claim of any
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nature against the Trust, any Portfolio or Class, the Trustees, or officers of
the Trust) shall be brought exclusively in the Court of Chancery of the State
of Delaware to the extent there is subject matter jurisdiction in such court
for the claims asserted or, if not, then in the Superior Court of the State of
Delaware. All Shareholders and other such Persons hereby irrevocably consent to
the jurisdiction of such courts (and the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waive, to the
fullest extent permitted by law, any objection they may make now or hereafter
have to the laying of the venue of any such suit, action or proceeding in such
court or that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Further, IN CONNECTION WITH ANY SUCH
SUIT, ACTION, OR PROCEEDING BROUGHT IN THE SUPERIOR COURT IN THE STATE OF
DELAWARE, ALL SHAREHOLDERS AND ALL OTHER SUCH PERSONS HEREBY IRREVOCABLY WAIVE
THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW. All
Shareholders and other such Persons agree that service of summons, complaint or
other process in connection with any proceedings may be made by registered or
certified mail or by overnight courier addressed to such Person at the address
shown on the books and records of the Trust for such Person or at the address
of the Person shown on the books and records of the Trust with respect to the
Shares that such Person claims an interest in. Service of process in any such
suit, action or proceeding against the Trust or any Trustee or officer of the
Trust may be made at the address of the Trust's registered agent in the State
of Delaware. Any service so made shall be effective as if personally made in
the State of Delaware.
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This agreement may be executed in counterparts, each of which
counterpart shall be deemed to be an original, and all of which, when taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 26/th/ day of October, 2016.
/s/ Xxxxx X. Arch
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Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxxx X Xxxxxxxx
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Xxxxxx X Xxxxxxxx
/s/ Xxx Xxxxx
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Xxx Xxxxx
/s/ Xxxxx Xxxxxx-Xxxxx
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Xxxxx Xxxxxx-Xxxxx
/s/ Xxxxx Xxxx
------------------------------
Xxxxx Xxxx
/s/ Xxxxxxx Xxxxxxx, Xx.
------------------------------
Xxxxxxx Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
27
SCHEDULE A
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
PORTFOLIOS AND CLASSES THEREOF
PORTFOLIO CLASSES OF EACH PORTFOLIO
--------- -------------------------
Invesco American Franchise Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco California Tax-Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class Y Shares
Invesco Core Plus Bond Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Equally-Weighted S&P 500 Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R6 Shares
Class Y Shares
Invesco Equity and Income Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Floating Rate Fund Class A Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Global Real Estate Income Fund Class A Shares
Class B Shares
Class C Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
28
Invesco Growth and Income Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Low Volatility Equity Yield Fund Class A Shares
Class B Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Investor Class Shares
Invesco Pennsylvania Tax Free Income Fund Class A Shares
Class B Shares
Class C Shares
Class R6 Shares
Class Y Shares
Invesco S&P 500 Index Fund Class A Shares
Class B Shares
Class C Shares
Class Y Shares
Invesco Short Duration High Yield Municipal Fund Class A Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Small Cap Discovery Fund Class A Shares
Class B Shares
Class C Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
Invesco Strategic Real Return Fund Class A Shares
Class C Shares
Class R Shares
Class R5 Shares
Class R6 Shares
Class Y Shares
29
Sub-Item 77Q1(a)
SECOND AMENDED AND RESTATED
BYLAWS
OF
AIM COUNSELOR SERIES TRUST (INVESCO COUNSELOR SERIES TRUST)
A DELAWARE STATUTORY TRUST
Adopted effective October 26, 2016
Capitalized terms not specifically defined herein
shall have the meanings ascribed to them in the Trust's
Third Amended and Restated Agreement and Declaration of Trust (the "Agreement").
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of AIM Counselor Series
Trust (Invesco Counselor Series Trust) (the "Trust") shall be as set forth in
the Certificate of Trust.
Section 2. Other Offices. The Trust may also have offices at such other
places (including a principal office) both within and without the State of
Delaware as the Trustees may from time to time determine or the business of the
Trust may require.
ARTICLE II
TRUSTEES
Section 1. Meetings of the Trustees. The Trustees of the Trust may hold
meetings, both regular and special, either within or without the State of
Delaware. Subject to any applicable requirements of the 1940 Act, (i) any
meeting, regular or special, of the Board of Trustees (or any committee or
sub-committee thereof) may be held by conference telephone or similar
communications equipment, by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at a meeting and (ii) at all meetings of
the Trustees, every Trustee shall be entitled to vote by proxy, provided that
such proxy shall, before or after such meeting, be delivered to the Secretary
or other person responsible for recording the proceedings of such meeting. To
the extent permitted by the 1940 Act, a Trustee may provide any proxy through
written, electronic, telephonic, computerized, facsimile, telecommunications,
telex or by any other form of communication.
Section 2. Regular Meetings. Regular meetings of the Board of Trustees shall
be held each year, at such time and place as the Board of Trustees may
determine.
Section 3. Notice of Meetings. Notice of the time, date, and place of all
meetings of the Board of Trustees and any committee or sub-committee thereof
shall be given to each Trustee, committee member or sub-committee member, as
applicable, (i) by telephone, telex, telegram, facsimile, electronic-mail, or
other electronic mechanism to his or her home or business at least twenty-four
hours in advance of the meeting, or, in the case of a meeting called for the
purpose of considering the institution of a liquidity fee or the temporary
suspension of redemptions in accordance with Rule 2a-7 under the 1940 Act, two
hours, or (ii) in person at another meeting of the Board of Trustees or such
committee or sub-committee, as applicable, or (iii) by written notice mailed or
sent via overnight courier to his or her home or business address at least
seventy-two hours in advance of the meeting. Notice need not be given to any
Trustee, committee member or sub-committee member who attends a meeting of the
Board of Trustees or any committee or sub-committee thereof without objecting
to the lack of notice or who signs a waiver of notice either before or after
such meeting.
1
Section 4. Quorum. At all meetings of the Board of Trustees and any
committee or sub-committee thereof, one-third of the Trustees then in office or
one-third of the committee members or sub-committee members (but in no event
less than two Trustees), as applicable, shall constitute a quorum for the
transaction of business. The act of a majority of the Trustees, committee
members or sub-committee members, including a majority of such Trustees,
committee members or sub-committee members who are not Interested Persons,
shall be the act of the Board of Trustees or such committee or sub-committee,
as applicable, except for any higher voting requirement as may be specifically
provided by applicable law or by the Agreement or these Bylaws. If a quorum
shall not be present at any meeting of the Board of Trustees or any committee
or sub-committee thereof, the Trustees, committee members or sub-committee
members, as applicable, present thereat may adjourn such meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Any action that may be taken by the Board of Trustees or any
committee or sub-committee thereof by majority vote at a meeting duly called
and at which a quorum required by the Bylaws is present, may also be taken by
written consent of at least seventy-five percent (75%) of the Trustees or
members of the committee or sub-committee, as the case may be, without a
meeting, provided that the writing or writings are filed with the minutes of
proceedings of the Board or committee or sub-committee. Written consents or
waivers of the Trustees may be executed in one or more counterparts. Any
written consent or waiver may be provided and delivered to the Trust by any
means by which notice may be given to a Trustee. Subject to the requirements of
the Governing Instrument and the 1940 Act, the Trustees by Majority Trustee
Vote may delegate to any Trustee or Trustees or committee or sub-committee of
Trustees, officer or officers of the Trust or any agent of the Trust authority
to approve particular matters or take particular actions on behalf of the Trust
or any Portfolio.
Section 5. Designation, Xxxxxx, and Names of Committees; Sub-Committees;
Committee Charters.
(a) The Board of Trustees shall have at a minimum the following five
committees: (1) an Audit Committee; (2) a Governance Committee; (3) an
Investments Committee; (4) a Valuation, Distribution and Proxy Oversight
Committee; and (5) a Compliance Committee. Each such Committee shall have a
written Charter governing its membership, duties and operations, and the Board
shall designate the powers of each such Committee in its Charter. The Board of
Trustees may terminate any such Committee by an amendment to these Bylaws. The
Board of Trustees may, by resolution passed by a majority of the whole Board,
establish one or more sub-committees of each such Committee, and the
membership, duties and operations of each such sub-committee shall be set forth
in the written Charter of the applicable Committee.
(b) The Board of Trustees may, by resolution passed by a majority of the
whole Board, designate one or more additional committees, including ad hoc
committees to address specified issues, each of which may, if deemed advisable
by the Board of Trustees, have a written Charter. Each such additional
committee shall consist of two or more of the Trustees of the Trust, provided
that a majority of members of each committee shall not be Interested Persons.
The Board may designate one or more Trustees as alternate members of any such
additional committee, who may replace any absent or disqualified member at any
meeting of such committee. Each such additional committee, to the extent
provided in the
2
resolution and/or in such committee's Charter, if applicable, shall have and
may exercise the powers of the Board of Trustees in the management of the
business and affairs of the Trust; provided, however, that in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not such members constitute a quorum, may unanimously appoint
another member of the Board of Trustees to act at the meeting in the place of
any such absent or disqualified member. Such additional committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Trustees and/or as set forth in the written
Charter of such committee or committees, if applicable.
Section 6. Chair; Vice Chair. The Board of Trustees shall have a Chair, who
shall be a Trustee who is not an Interested Person. The Chair shall be elected
by a majority of the Trustees, including a majority of the Trustees who are not
Interested Persons. The Board of Trustees may also have a Vice Chair, who shall
be a Trustee. The Vice Chair shall be elected by a majority of the Trustees,
including a majority of the Trustees who are not Interested Persons. The Chair
shall preside at all meetings of the Shareholders and the Board of Trustees, if
the Chair is present, and shall approve the agendas of all meetings of the
Shareholders and the Board of Trustees. The Chair shall have such other powers
and duties as shall be determined by the Board of Trustees, and shall undertake
such other assignments as may be requested by the Board of Trustees. If the
Chair shall not be present, the Vice Chair, if any, shall preside at all
meetings of the Shareholders and the Board of Trustees, if the Vice Chair is
present. The Vice Chair shall have such other powers and duties as shall be
determined by the Chair or the Board of Trustees, and shall undertake such
other assignments as may be requested by the Chair or the Board of Trustees.
ARTICLE III
OFFICERS
Section 1. Executive Officers. The executive officers shall include a
Principal Executive Officer, a President, one or more Vice Presidents, which
may include one or more Executive Vice Presidents and/or Senior Vice Presidents
(the number thereof to be determined by the Board of Trustees), a Principal
Financial Officer, a Chief Legal Officer, a Chief Compliance Officer, a Senior
Officer, a Treasurer, a Secretary and an Anti-Money Laundering Compliance
Officer. The Board of Trustees may also in its discretion appoint Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, and other
officers, agents and employees, who shall have such authority and perform such
duties as the Board may determine. The Board of Trustees may fill any vacancy
that may occur in any office. Any two offices, except for those of President
and Vice President, may be held by the same person, but no officer shall
execute, acknowledge or verify any instrument on behalf of the Trust in more
than one capacity, if such instrument is required by law or by these Bylaws to
be executed, acknowledged or verified by two or more officers.
Section 2. Term of Office. Unless otherwise specifically determined by the
Board of Trustees, the officers shall serve at the pleasure of the Board of
Trustees. If the Board of Trustees in its judgment finds that the best
interests of the Trust will be served, the Board of Trustees may remove any
officer of the Trust at any time with or without cause. The Trustees may
delegate this power to the President (without supervision by the Trustees) with
respect to any other officer, except the Senior Officer. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer may resign from office at any time by delivering a written resignation
to the Trustees or the President. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
3
Section 3. Principal Executive Officer. The Principal Executive Officer
shall be the chief executive officer of the Trust and shall generally manage
the business and affairs of the Trust. The Principal Executive Officer shall be
responsible for making the certifications required of the Trust's principal
executive officer by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules promulgated thereunder by the Securities and Exchange Commission (the
"Commission").
Section 4. President; Vice Presidents. The President and one or more Vice
Presidents, which may include one or more Executive Vice Presidents and/or
Senior Vice Presidents, shall have and exercise such powers and duties of the
Principal Executive Officer in the absence or inability to act of the Principal
Executive Officer, as may be assigned to them, respectively, by the Board of
Trustees or, to the extent not so assigned, by the Principal Executive Officer.
In the absence or inability to act of the Principal Executive Officer, the
powers and duties of the Principal Executive Officer not otherwise assigned by
the Board of Trustees or the Principal Executive Officer shall devolve first
upon the President, then upon the Executive Vice Presidents, then upon the
Senior Vice Presidents, and finally upon the Vice Presidents, all in the order
of their election. If both the Chair and the Vice Chair are absent, or if the
Chair is absent and there is no Vice Chair, the President shall, if present,
preside at all meetings of the Shareholders and the Board of Trustees.
Section 5. Principal Financial Officer. The Principal Financial Officer, who
shall also have a title of at least Vice President, shall be the chief
financial officer of the Trust and shall generally manage the financial affairs
of the Trust. The Principal Financial Officer shall be responsible for making
the certifications required of the Trust's principal financial officer by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder.
Section 6. Chief Legal Officer. The Chief Legal Officer, who shall also have
a title of at least Senior Vice President, shall generally manage the legal
affairs of the Trust. The Chief Legal Officer shall be responsible for
receiving up-the-ladder reports within the Trust of any evidence of material
violations of securities laws or breaches of fiduciary duty or similar
violations by the Trust, as required by Section 307 of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules promulgated thereunder.
Section 7. Chief Compliance Officer. The Chief Compliance Officer, who shall
also have a title of at least Senior Vice President, shall be responsible for
administering the Trust's policies and procedures adopted pursuant to Rule
38a-1(a)(1) under the 1940 Act.
Section 8. Senior Officer. The Senior Officer, who shall also have a title
of at least Senior Vice President, shall be employed by or on behalf of the
Trust and shall have such powers and duties as are set forth in such Senior
Officer's Executive Employment Agreement.
Section 9. Treasurer. The Treasurer shall have the care and custody of the
funds and securities of the Trust and shall deposit the same in the name of the
Trust in such bank or banks or other depositories, subject to withdrawal in
such manner as these Bylaws or the Board of Trustees may determine. The
Treasurer shall, if required by the Board of Trustees, give such bond for the
faithful discharge of duties in such form as the Board of Trustees may require.
Section 10. Secretary. The Secretary shall (a) have custody of the seal of
the Trust, if any; (b) if requested, attend meetings of the Shareholders, the
Board of Trustees, and any committees or sub-committees of Trustees; (c) keep
or cause to be kept the minutes of all meetings of Shareholders, the Board of
Trustees and any committees or sub-committees
4
thereof, and (d) issue all notices of the Trust. The Secretary shall have
charge of the Shareholder records and such other books and papers as the Board
may direct, and shall perform such other duties as may be incidental to the
office or which are assigned by the Board of Trustees.
Section 11. Anti-Money Laundering Compliance Officer. The Anti-Money
Laundering Compliance Officer shall have such powers and duties as are set
forth in the Anti-Money Laundering Program adopted by the Trust pursuant to the
USA PATRIOT Act of 2001 and the rules promulgated thereunder, as such Program
may be amended from time to time.
Section 12. Assistant Officers. Assistant officers, which may include one or
more Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers,
shall perform such functions and have such responsibilities as the Board of
Trustees may assign to them or, to the extent not so assigned, by the
President, Vice President(s), Secretary or Treasurer, as applicable.
Section 13. Surety Bond. The Trustees may require any officer or agent of
the Trust to execute a bond (including, without limitation, any bond required
by the 1940 Act and the rules and regulations of the Commission) to the Trust
in such sum and with such surety or sureties as the Trustees may determine,
conditioned upon the faithful performance of his or her duties to the Trust,
including responsibility for negligence and for the accounting of any of the
Trust's property, funds, or securities that may come into his or her hands.
Section 14. Authorized Signatories. Unless a specific officer is otherwise
designated in these Bylaws or in a resolution adopted by the Board of Trustees,
the proper officers of the Trust for executing agreements, documents and
instruments other than Internal Revenue Service forms shall be the Principal
Executive Officer, the President, any Vice President, the Principal Financial
Officer, the Chief Legal Officer, the Chief Compliance Officer, the Senior
Officer, the Treasurer, the Secretary, the Anti-Money Laundering Compliance
Officer, any Assistant Vice President, any Assistant Treasurer or any Assistant
Secretary. Unless a specific officer is otherwise designated in these Bylaws or
in a resolution adopted by the Board of Trustees, the proper officers of the
Trust for executing any and all Internal Revenue Service forms shall be the
Principal Executive Officer, the President, any Vice President, the Principal
Financial Officer, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary.
ARTICLE IV
MEETINGS OF THE SHAREHOLDERS
Section 1. Purpose. All meetings of the Shareholders for the election of
Trustees shall be held at such place as may be fixed from time to time by the
Trustees, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Trustees and stated in the
notice indicating that a meeting has been called for such purpose. Meetings of
the Shareholders may be held for any purpose determined by the Trustees and may
be held at such time and place, within or without the State of Delaware as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof. At all meetings of the Shareholders, every Record Owner
entitled to vote on a matter to be voted on by such Shares shall be entitled to
vote on such matter at such meeting either in person or by written proxy signed
by the Record Owner or by his duly authorized attorney in fact. A Record Owner
may duly authorize such attorney in fact through written, electronic,
telephonic, computerized, facsimile, telecommunication, telex or oral
communication or by any other form of communication.
5
Section 2. Nomination of Trustees.
(a) Any Shareholder may submit names of individuals to be considered by
the Governance Committee or the Board of Trustees for election as trustees of
the Trust, as applicable, provided, however, (i) that such person submits such
names in a timely manner as set out in Section 2 of Article V hereof, (ii) that
such person was a shareholder of record at the time of submission of such names
and is entitled to vote at the meeting, and (iii) that the Governance Committee
or the Board of Trustees, as applicable, shall make the final determination of
persons to be nominated.
(b) The process and procedures for the nomination of persons for
election or appointment as trustees of the Trust by the Trustees shall be set
forth in the written Charter for the Governance Committee of the Board of
Trustees.
Section 3. Election of Trustees. All meetings of the Shareholders for the
purpose of electing Trustees shall be held on such date and at such time as
shall be designated from time to time by the Trustees and stated in the notice
of the meeting, at which the Shareholders shall elect by a plurality vote any
number of Trustees as the notice for such meeting shall state are to be
elected, and transact such other business as may properly be brought before the
meeting in accordance with Section 1 of this Article IV.
Section 4. Annual Meetings. There shall be no annual meetings of the
Shareholders for the election of Trustees or the transaction of any other
business except as required by the 1940 Act or other applicable federal law. In
the event any annual meeting of the Shareholders is to be held, it shall be
held at the principal executive office of the Trust or as otherwise determined
by the Board of Trustees.
Section 5. Special Meetings. Special meetings of the Shareholders shall be
held as provided herein or in the Agreement or as otherwise required by the
1940 Act or other applicable federal law. Except as required by federal law
including the 1940 Act, the Shareholders shall not be entitled to call, or to
have the Secretary call, special meetings of the Shareholders. To the extent
required by federal law including the 1940 Act, special meetings of the
Shareholders shall be called by the Secretary upon the request of the
Shareholders owning Shares representing at least the percentage of the total
combined votes of all Shares of the Trust issued and outstanding required by
federal law including the 1940 Act, 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
reasonably estimated cost of preparing and mailing the notice thereof, which
the Secretary shall determine and specify to such Shareholders.
Section 6. Notice of Meetings. Written notice of a special meeting stating
the place, date, and hour of the meeting and the purpose or purposes for which
the meeting is called, shall be given not less than ten days before the date of
the meeting, to each Shareholder entitled to vote at such meeting in accordance
with Article V hereof. No notice of any meeting need be given to any
Shareholder who attends such meeting in person or to any Shareholder who waives
notice of such meeting (which waiver shall be filed with the records of such
meeting), whether before or after the time of the meeting. In the absence of
fraud, any irregularities in the notice of any meeting or the nonreceipt of any
such notice by any of the Shareholders shall not invalidate any action
otherwise properly taken at any such meeting.
6
Section 7. Conduct of Special Meeting. Business transacted at any special
meeting of the Shareholders shall be limited to (i) the purpose stated in the
notice and (ii) the adjournment of such special meeting with regard to such
stated purpose.
Section 8. Quorum. The holders of one-third of the Outstanding Shares
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the Shareholders for the transaction of
business except as otherwise provided by applicable law or by the Agreement.
Notwithstanding the preceding sentence, with respect to any matter which by
applicable law or by the Agreement requires the separate approval of one or
more Classes or Portfolios, the holders of one-third of the Outstanding Shares
of each such Class or Portfolio (or of such Classes or Portfolios voting
together as a single class) entitled to vote on the matter shall constitute a
quorum. If, however, such quorum shall not be present or represented at any
meeting of the Shareholders, the vote of the holders of a majority of Shares
cast shall have power to adjourn the meeting from time to time in accordance
with Article IV, Section 16 hereof, without notice other than announcement at
the meeting, until a quorum shall be present or represented. 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 9. Organization of Meetings.
(a) The meetings of the Shareholders shall be presided over by the
Chair, or if the Chair shall not be present, by the Vice Chair, if any, or if
the Vice Chair shall not be present or if there is no Vice Chair, by the
President, or if the President shall not be present, by a Vice President, or if
no Vice President is present, by a chair appointed for such purpose by the
Board of Trustees or, if not so appointed, by a chair appointed for such
purpose by the officers and Trustees present at the meeting. The Secretary of
the Trust, if present, shall act as secretary of such meetings, or if the
Secretary is not present, an Assistant Secretary of the Trust shall so act, and
if no Assistant Secretary is present, then a person designated by the Secretary
of the Trust shall so act, and if the Secretary has not designated a person,
then the meeting shall elect a secretary for the meeting.
(b) The Board of Trustees of the Trust shall be entitled to make such
rules and regulations for the conduct of meetings of the Shareholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Trustees, if any, the chair of the meeting 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 chair, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing: an agenda or order of business for
the meeting; rules and procedures for maintaining order at the meeting and the
safety of those present; limitations on participation in such meeting to
shareholders of record of the Trust and their duly authorized and constituted
proxies, and such other persons as the chair shall permit; restrictions on
entry to the meeting after the time fixed for the commencement thereof;
limitations on the time allotted to questions or comments by participants; and
regulation of the opening and closing of the polls for balloting on matters
which are to be voted on by ballot, unless and to the extent the Board of
Trustees or the chair of the meeting determines that meetings of the
Shareholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
7
Section 10. Voting Standard. When a quorum is present at any meeting, the
vote of the holders of a majority of the Shares cast shall decide any question
brought before such meeting, unless the question is one on which, by express
provision of applicable law, the Agreement, these Bylaws, or applicable
contract, a different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 11. Voting Procedure. Each whole Share shall be entitled to one
vote, and each fractional Share shall be entitled to a proportionate fractional
vote. On any matter submitted to a vote of the Shareholders, all Shares shall
be voted together, except when required by applicable law or when the Trustees
have determined that the matter affects the interests of one or more Portfolios
(or Classes), then only the Shareholders of such Portfolios (or Classes) shall
be entitled to vote thereon.
Section 12. Action Without Meeting. Unless otherwise provided in the
Agreement or applicable law, any action required to be taken at any meeting of
the Shareholders, or any action which may be taken at any meeting of the
Shareholders, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of Outstanding Shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all Shares entitled to vote thereon were present and voted.
Prompt notice of the taking of any such action without a meeting by less than
unanimous written consent shall be given to those Shareholders who have not
consented in writing.
Section 13. Broker Non-Votes. At any meeting of the Shareholders the Trust
will consider broker non-votes as present for purposes of determining whether a
quorum is present at the meeting. Xxxxxx non-votes will not count as votes cast
for or against any proposals.
Section 14. Abstentions. At any meeting of the Shareholders the Trust will
consider abstentions as present for purposes of determining whether a quorum is
present at the meeting. Abstentions will not count as votes cast for or against
any proposals.
Section 15. Record Date for Shareholder Meetings and Consents. In order that
the Trustees may determine the Shareholders entitled to notice of or to vote at
any meeting of the Shareholders or any adjournment thereof, or to express
consent to 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 adopted by the Board of Trustees, and
which record date shall not be more than ninety nor less than ten days before
the original date upon which the meeting of the Shareholders is scheduled, nor
more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Trustees for action by shareholder consent in
writing without a meeting. A determination of shareholders of record entitled
to notice of or to vote at a meeting of the Shareholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Trustees may
fix a new record date for the adjourned meeting so long as notice of the
adjournment and the new record and meeting dates are given to the Shareholders.
Section 16. Postponements and Adjournments. Prior to the date upon which any
meeting of Shareholders is to be held, the Board of Trustees may postpone such
meeting one or more times for any reason by giving notice to each Shareholder
entitled to vote at the meeting so postponed of the place, date and hour at
which such meeting will be held. Such notice shall be given not fewer than two
(2) days before the date of such meeting and otherwise in accordance with
Article V. A meeting of the Shareholders convened on the date for which it
8
was called may be adjourned from time to time without further notice to the
Shareholders to a date not more than 120 days after the original record date. A
meeting of the Shareholders may not be adjourned for more than 120 days after
the original record date for such meeting without giving the Shareholders
notice of the adjournment and the new meeting date. Except as otherwise set
forth in Article IV, Section 8 hereof, the vote of the holders of one-third of
the Shares cast shall be required in order to adjourn a meeting of the
Shareholders with regard to a particular proposal scheduled to be voted on at
such meeting or to adjourn such meeting entirely.
Section 17. Voting - Proxies. At all meetings of the Shareholders, every
Shareholder of record entitled to vote thereat shall be entitled to vote either
in person or by proxy, which term shall include proxies provided by such
Shareholder, or his duly authorized attorney, through written, electronic,
telephonic, computerized, facsimile, telecommunications, telex or oral
communication or by any other form of communication, each pursuant to such
voting procedures and through such systems as are authorized by the Board of
Trustees or any officer of the Trust. Proxies may be solicited in the name of
one or more Trustees or one or more officers of the Trust.
Unless the proxy provides otherwise, it shall not be valid for more than
eleven (11) months before the date of the meeting. All proxies shall be
delivered to the secretary or other person responsible for recording the
proceedings before being voted. A valid 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 is taken (a) by a
writing delivered to the Trust stating that the proxy is revoked, (b) by a
subsequent proxy executed by such person, (c) attendance at the meeting and
voting in person by the person executing that proxy, or (d) revocation by such
person using any electronic, telephonic, computerized or other alternative
means authorized by the Trustees for authorizing the proxy to act; 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. Unless
revoked, any proxy given in connection with a postponed or adjourned meeting
for which a new record date is fixed shall continue to be valid so long as the
Shareholder giving such proxy is a Shareholder of record on such new such
record date.
A proxy with respect to Xxxxxx held in the name of two or more persons shall
be valid if executed by one of them unless at or prior to exercise of such
proxy the Trust receives a specific written notice to the contrary from any one
of them in which case such proxy shall not be valid and no vote shall be
received in respect of such Shares unless all persons holding such Shares shall
agree on their manner of voting. Unless otherwise specifically limited by their
terms, proxies shall entitle the Shareholder to vote at any adjournment of a
Shareholders' meeting.
Section 18. Concerning Validity of Proxies, Ballots, Etc. At every meeting
of the Shareholders, all proxies shall be received and taken in charge of and
all ballots shall be received and canvassed by the secretary of the meeting,
who shall decide all questions touching the qualification of voters, the
validity of proxies, and the acceptance or rejection of votes, unless
inspectors of election shall have been appointed as provided below in this
section, in which event such inspectors of election shall decide all such
questions.
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. Subject to the provisions of
the Delaware Act, the Agreement, or these By-laws, the General Corporation Law
of the State of Delaware relating to proxies, and judicial interpretations
thereunder, shall govern all matters concerning the giving, voting or validity
of proxies, as if the Trust were a Delaware corporation and the Shareholders
were stockholders of a Delaware corporation.
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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 or affirmation to
execute faithfully the duties of inspector 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. No candidate for
the office of Trustee shall be appointed as an inspector.
The chairman of the meeting may cause a vote by ballot to be taken upon any
election or matter, and, to the extent required by federal law including the
1940 Act, but only to such extent, such vote shall be taken upon the request of
the Shareholders owning Shares representing ten percent (10%) or more of the
total combined votes of all Shares of the Trust issued and outstanding and
entitled to vote on such election or matter.
ARTICLE V
NOTICES
Section 1. Methods of Giving Notice. Whenever, under the provisions of
applicable law or of the Agreement or of these Bylaws, notice is required to be
given to any Trustee or Shareholder, it shall not, unless otherwise provided
herein, be construed to mean personal notice, but such notice may be given
orally in person, or by telephone (promptly confirmed in writing) or in
writing, by mail addressed to such Trustee at his or her last given address or
to such Shareholder at his address as it appears on the records of the Trust,
with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Notice to
Trustees or members of a committee or sub-committee may also be given by telex,
telegram, facsimile, electronic-mail or via overnight courier. If sent by telex
or facsimile, notice to a Trustee or member of a committee or sub-committee
shall be deemed to be given upon transmittal; if sent by telegram, notice to a
Trustee or member of a committee or sub-committee shall be deemed to be given
when the telegram, so addressed, is delivered to the telegraph company; if sent
by electronic-mail, notice to a Trustee or member of a committee or
sub-committee shall be deemed to be given and shall be presumed valid when the
Trust's electronic-mail server reflects the electronic-mail message as having
been sent; and if sent via overnight courier, notice to a Trustee or member of
a committee or sub-committee shall be deemed to be given when delivered against
a receipt therefor.
Section 2. Annual Meeting Notice Requirements for Nominations and Proposals
by Shareholders.
(a) For nominations or other business to be properly brought before any
annual meeting by a Shareholder, the Shareholder must have given timely notice
thereof in writing to the Secretary of the Trust and such other business must
otherwise be a proper matter for action by Shareholders. To be timely, a
Shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Trust not later than the close of business on the
90/th/ day, nor earlier than the close of business on the 120/th/ day, prior to
the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date or
if the Trust did not hold an annual meeting in the previous year, notice by
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the Shareholder to be timely must be so delivered not earlier than the close of
business on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of
such meeting is first made by the Trust. In no event shall the public
announcement of a postponement or adjournment of an annual meeting to a later
date or time commence a new time period for the giving of a Shareholder's
notice as described above. Such Shareholder's notice shall set forth (A) as to
each person whom the Shareholder proposes to nominate for election or
reelection as a Trustee all information relating to such person that is
required to be disclosed in solicitations of proxies for election of Trustees
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Trustee if elected); (B) as to
any other business that the Shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in such business of such Shareholder and of the beneficial owner, if any, on
whose behalf the proposal is made; and (C) as to the Shareholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made, (i) the name and address of such Shareholder, as they appear
on the Trust's books, and of such beneficial owner and (ii) the number of
shares of each Class of Shares of the Portfolio which are owned beneficially
and of record by such Shareholder and such beneficial owner.
(b) Notwithstanding anything in the second sentence of paragraph (a) of
this Section 2 to the contrary, in the event that the number of Trustees to be
elected to the Board of Trustees is increased and there is no public
announcement by the Trust naming all of the nominees for Trustee or specifying
the size of the increased Board of Trustees at least 100 days prior to the
first anniversary of the preceding year's annual meeting, a Shareholder's
notice required by this Section 2 shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Trust not later than the close of business on the tenth day following the day
on which such public announcement is first made by the Trust.
Section 3. Special Meeting Notice Requirement for Nominations and Proposals
by Shareholders. Only such business shall be conducted at a special meeting of
the Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting. Nominations of persons for election to the Board of
Trustees may be made at a special meeting of the Shareholders at which Trustees
are to be elected (A) pursuant to the Trust's notice of meeting, (B) by or at
the direction of the Board of Trustees or (C) provided that the Board of
Trustees has determined that Trustees shall be elected at such special meeting,
by any Shareholder of the Trust who is a Shareholder of record both at the time
of giving of notice provided for in Section 2(a) of this Article V and at the
time of the special meeting, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in Section 2(a) of this Article
V. In the event the Trust calls a special meeting of the Shareholders for the
purpose of electing one or more Trustees to the Board of Trustees, any such
Shareholder may nominate a person or persons (as the case may be) for election
to such position as specified in the Trust's notice of meeting, if the
Shareholder's notice containing the information required by this Section 2(a)
shall be delivered to the Secretary at the principal executive offices of the
Trust not earlier than the close of business on the 120th day prior to such
special meeting and not later than the close of business on the later of the
90th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Trustees to be elected at such
meeting. In no event shall the public announcement of a postponement or
adjournment of a special meeting to a later date or time commence a new time
period for the giving of a Shareholder's notice as described above.
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Section 4. Written Waiver. Whenever any notice is required to be given under
the provisions of applicable law or of the Agreement or of these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VI
CERTIFICATES OF SHARES AND SHARE OWNERSHIP
Section 1. Share Ownership and Transfer of Shares. All Shares issued by the
Trust shall be uncertificated, and any certificates previously issued with
respect to any Shares are deemed to be cancelled without any requirement for
surrender to the Trust. The Trustees shall make such rules as they consider
appropriate for the transfer of Shares and similar matters. With respect to any
Shares for which a certificate was previously issued and remains outstanding,
upon receipt of any request for transfer of Shares evidenced by a share
certificate upon surrender to the Trust or the transfer agent of the Trust of
such certificate for Shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Trust shall cancel the old
certificate and record the transaction and the ownership of uncertificated
Shares upon its books. No Shareholder shall have the right to demand or require
that a certificate be issued to him, her or it.
Section 2. Shareholder Book. The Trust shall keep or cause to be kept a
Shareholder book, which may be maintained by means of computer systems,
containing the names, alphabetically arranged, of all persons who are
shareholders of the Trust, showing their places of residence, the number and
Class of any Shares held by them, respectively, and the dates when they became
the record owners thereof.
Section 3. Registered Shareholders. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall contain the names and addresses of the Shareholders
and the Shares held by each Shareholder. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to the identity of the Shareholders of each Portfolio and
Class and as to the number of Shares of the Trust and of each Portfolio and
Class held from time to time by each Shareholder. 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 shall not
be bound to recognize any equitable or other claim of interest in such Share or
Shares on the part of any other person, whether or not it shall have express or
other notice hereof. No Shareholder shall be entitled to receive payment of any
distribution or to have notice given to such Shareholder of any meeting or
other action in respect of the Trust or any Portfolio or Class until such
Shareholder has given its address and such other information as shall be
required to such officer or agent of the Trust or such Portfolio or Class as
shall keep the record books of the Trust or such Portfolio or Class for entry
thereof.
Section 4. Record Date for Receiving Dividends and Other Actions. In order
that the Trustees may determine the Shareholders entitled to receive payment of
any dividend or other distribution of allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of Shares
or for the purpose of any other lawful action, the Board of Trustees may fix a
record date, which record date (i) shall be set forth in the resolution or
resolutions authorizing the payment of such dividend or other lawful action and
(ii) shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Trustees.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Seal. The Board of Trustees may provide that the Trust have a
business seal. The business seal shall have inscribed thereon the name of the
statutory trust, the state of its organization, the year of its organization
and the words "Business Trust" or "Statutory Trust." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced, including placing the word "[SEAL]" adjacent to the
signature of the person authorized to sign a document on behalf of the Trust.
Any officer or Trustee of the Trust shall have authority to affix the seal of
the Trust to any document requiring the same.
Section 2. Severability. The provisions of these Bylaws are severable. If
any provision hereof shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of
these Bylaws.
Section 3. Headings. Headings are placed in these Bylaws for convenience of
reference only and in case of any conflict, the text of these Bylaws rather
than the headings shall control.
ARTICLE VIII
INDEMNIFICATION
Section 1. Indemnification.
(a) To the maximum extent permitted by law, the Trust (or applicable
Portfolio) shall indemnify any person who was or is a party or is threatened to
be made a party to, or is involved as a witness in, any proceeding (other than
a proceeding by or in the right of the Trust or a Portfolio) by reason of the
fact that such person is or was a Covered Person, against expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such proceeding.
(b) To the maximum extent permitted by law, the Trust (or applicable
Portfolio) shall indemnify any person who was or is a party or is threatened to
be made a party to, or is involved as a witness in, any proceeding by or in the
right of the Trust (or such Portfolio) to procure a judgment in its favor by
reason of the fact that such person is or was a Covered Person, against
expenses actually and reasonably incurred by that person in connection with the
defense or settlement of such proceeding.
(c) Notwithstanding any provision to the contrary contained herein, no
Covered Person shall be indemnified for any expenses, judgments, fines, amounts
paid in settlement, or other liability or loss arising by reason of disabling
conduct. 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 engaged in disabling
conduct.
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Section 2. Advance Payment of Indemnification Expenses. To the maximum
extent permitted by law, the Trust or applicable Portfolio shall advance to any
person who was or is a party or is threatened to be made a party to, or is
involved as a witness in, any proceeding by reason of the fact that such person
is or was a Trustee or officer of the Trust the expenses actually and
reasonably incurred by such person in connection with the defense of such
proceeding in advance of its final disposition. To the maximum extent permitted
by law, the Trust or applicable Portfolio may advance to any person who was or
is a party or is threatened to be made a party to any proceeding by reason of
the fact that such person is or was a Covered Person (other than a Trustee or
officer of the Trust) the expenses actually and reasonably incurred by such
person in connection with the defense of such proceeding in advance of its
final disposition. Notwithstanding any provision to the contrary contained
herein, the Trust shall not advance expenses to any Covered Person (including a
Trustee or officer of the Trust) unless:
(a) the Trust or applicable Portfolio has received an undertaking by or
on behalf of such Covered Person that the amount of all expenses so advanced
will be paid over by such person to the Trust or applicable Portfolio unless it
is ultimately determined that such person is entitled to indemnification for
such expenses; and
(b) (i) such Covered Person shall have provided appropriate security for
such undertaking, or (ii) such Covered Person shall have insured the Trust or
applicable Portfolio against losses arising out of any such advance payments,
or (iii) either (1) the Trustees, by the vote of a majority of a quorum of
qualifying Trustees, or (2) independent legal counsel in a written opinion,
shall have determined, based upon a review of readily available facts (as
opposed to a full trial-type inquiry) that there is reason to believe that such
Covered Person ultimately will be found entitled to indemnification.
Section 3. Determination of Entitlement to Indemnification. Any
indemnification required or permitted under this Article VIII (unless ordered
by a court) shall be made by the Trust or applicable Portfolio only as
authorized in the specific case upon a reasonable determination, based upon a
review of the facts, that the Covered Person is entitled to indemnification
because (i) he or she is not liable by reason of disabling conduct, or (ii) in
cases where there is no liability, he or she has not engaged in disabling
conduct. Such determination shall be made by (i) the vote of a majority of a
quorum of qualifying Trustees; or (ii) if there are no such Trustees, or if
such Trustees so direct, by independent legal counsel in a written opinion.
Notwithstanding anything to the contrary in Section 2 of this Article VIII, if
a determination that a Covered Person engaged in disabling conduct is made in
accordance with this Section 3, no further advances of expenses shall be made,
and all prior advances, and insurance premiums paid for by the Trust, if
applicable, must be repaid.
Section 4. Contract Rights. With respect to any person who was or is a party
or is threatened to be made a party to, or is involved as a witness in, any
proceeding by reason of the fact that such person is or was a Covered Person,
the rights to indemnification conferred in Section 1 of this Article VIII, and
with respect to any person who was or is a party or is threatened to be made a
party to, or is involved as a witness in, any proceeding by reason of the fact
that such person is or was a Trustee or officer of the Trust, the advancement
of expenses conferred in Section 2 of this Article VIII shall be contract
rights. Any amendment, repeal, or modification of, or adoption of any provision
inconsistent with, this Article VIII (or any provision hereof) shall not
adversely affect any right to indemnification or advancement of expenses
granted to any such person pursuant hereto with respect to any act or omission
of such person occurring prior to the time of such amendment, repeal,
modification, or adoption
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(regardless of whether the proceeding relating to such acts or omissions is
commenced before or after the time of such amendment, repeal, modification, or
adoption). Any amendment or modification of, or adoption of any provision
inconsistent with, this Article VIII (or any provision hereof), that has the
effect of positively affecting any right to indemnification or advancement of
expenses granted to any such person pursuant hereto, shall not apply
retroactively to any person who was not serving as a Trustee, officer, employee
or agent of the Trust at the time of such amendment, modification or adoption.
Section 5. Claims.
(a) If (X) a claim under Section 1 of this Article VIII with respect to
any right to indemnification is not paid in full by the Trust or applicable
Portfolio within sixty days after a written demand has been received by the
Trust or applicable Portfolio or (Y) a claim under Section 2 of this Article
VIII with respect to any right to the advancement of expenses is not paid in
full by the Trust or applicable Portfolio within thirty days after a written
demand has been received by the Trust or applicable Portfolio, then the Covered
Person seeking to enforce a right to indemnification or to an advancement of
expenses, as the case may be, may at any time thereafter bring suit against the
Trust or applicable Portfolio to recover the unpaid amount of the claim.
(b) If successful in whole or in part in any suit brought pursuant to
Section 5(a) of this Article VIII, or in a suit brought by the Trust or
applicable Portfolio to recover an advancement of expenses (whether pursuant to
the terms of an undertaking or otherwise), the Covered Person seeking to
enforce a right to indemnification or an advancement of expenses hereunder or
the Covered Person from whom the Trust or applicable Portfolio sought to
recover an advancement of expenses, as the case may be, shall be entitled to be
paid by the Trust or applicable Portfolio the reasonable expenses (including
attorneys' fees) of prosecuting or defending such suit.
Section 6. Definitions. For purposes of this Article VIII: (a) references to
"Trust" include 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; (b) the term "disabling
conduct" means willful misfeasance, bad faith, gross negligence, or the
reckless disregard of the duties involved in the conduct of the Covered
Person's office with the Trust or applicable Portfolio; (c) the term "expenses"
includes, without limitations, attorneys' fees; (d) the term "proceeding" means
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative; and (e) the term "qualifying
Trustee" means any Trustee who is not an interested person (as defined in the
1940 Act) of the Trust and is not a party to the proceeding.
ARTICLE IX
VOTING OF SECURITIES
Section 1. Voting of Securities. Unless otherwise ordered by the Board of
Trustees, the Principal Executive Officer, the President or any Vice President
shall have full power and authority on behalf of the Trust to attend and to act
and to vote, or in the name of the Trust to execute proxies to vote, at any
meeting of shareholders of any company in which the Trust may hold stock. At
any such meeting such officer shall possess and may exercise (in person or by
proxy) any and all rights, powers and privileges incident to the ownership of
such stock. The Board of Trustees may by resolution from time to time confer
like powers upon any other person or persons.
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ARTICLE X
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered or repealed by the
Trustees without the vote or approval of the Shareholders.
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