BYLAWS
OF
Hillview Investment Trust II,
a Delaware Business Trust
Adopted effective April 14, 2000
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TABLE OF CONTENTS
ARTICLE I OFFICES..............................................................1
Section 1. Registered Office...............................................1
Section 2. Other Offices...................................................1
ARTICLE II TRUSTEES............................................................1
Section 1. Number...........................................................1
Section 2. Term............................................................1
Section 3. Vacancy.........................................................1
Section 4. Delegation of Power.............................................3
Section 5. Inability to Serve Full Term....................................3
Section 6. Powers..........................................................3
Section 7. Meetings of the Trustees........................................3
Section 8. Regular Meetings................................................3
Section 9. Notice of Meetings..............................................3
Section 10. Quorum.........................................................4
Section 11. Action Without Meeting.........................................4
Section 12. Designation, Powers, and Name of Committees....................4
Section 13. Minutes of Committee...........................................4
Section 14. Compensation of Trustees.......................................4
ARTICLE III OFFICERS...........................................................5
Section 1. Executive Officers..............................................5
Section 2. Term of Office..................................................5
Section 3. President.......................................................5
Section 4. Chairman of the Board...........................................5
Section 5. Other Officers..................................................6
Section 6. Secretary.......................................................6
Section 7. Treasurer.......................................................6
Section 8. Surety Bond.....................................................6
ARTICLE IV MEETINGS OF SHAREHOLDERS............................................7
Section 1. Purpose.........................................................7
Section 2. Nominations of Trustees.........................................7
Section 3. Election of Trustees............................................7
Section 4. Notice of Meetings..............................................8
Section 5. Special Meetings................................................8
Section 6. Notice of Special Meeting.......................................8
Section 7. Conduct of Special Meeting......................................8
Section 8. Quorum..........................................................8
Section 9. Organization of Meetings........................................8
Section 10. Voting Standard................................................9
Section 11. Voting Procedure...............................................9
Section 12. Action Without Meeting.........................................9
ARTICLE V NOTICES.............................................................10
Section 1. Methods of Giving Notice.......................................10
Section 2. Written Waiver.................................................10
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ARTICLE VI CERTIFICATES OF SHARES.............................................10
Section 1. Issuance.......................................................10
Section 2. Countersignature...............................................11
Section 3. Lost Certificates..............................................11
Section 4. Transfer of Shares.............................................11
Section 5. Fixing Record Date.............................................11
Section 6. Registered Shareholders........................................12
ARTICLE VII GENERAL PROVISIONS................................................12
Section 1. Dividends and Other Distributions..............................12
Section 2. Redemptions....................................................12
Section 3. Indemnification................................................13
Section 4. Advance Payments of Indemnifiable Expenses.....................13
Section 5. Seal...........................................................13
Section 6. Severability...................................................13
Section 7. Headings.......................................................14
ARTICLE VIII AMENDMENTS.......................................................14
Section 1. Amendments.....................................................14
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DRAFT 05/31/00
BYLAWS
OF
Hillview Investment Trust II,
a Delaware Business Trust
Capitalized terms not specifically defined herein
shall have the meanings ascribed to them in the Trust's
Agreement and Declaration of Trust ("Agreement").
ARTICLE I
OFFICES
Section 1. Registered Office. The registered agent of Hillview Investment
Trust II (the "Trust") shall be The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
Section 2. Other Offices. The Trust may also have offices at such other
places 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. Number. The Trust shall have an initial Trustee that shall serve
until the issuance of its shares or until the initial Trustee elects a Board of
Trustees. However, upon the issuance of shares of the Trust, the number of
Trustees shall be fixed from time to time by resolution of the Board of
Trustees; provided that the number of Trustees shall in no event be less than
two nor more than twelve. Shareholders shall not be required to elect Trustees
except as required by the 1940 Act or under this Agreement. A Trustee shall be
an individual at least 21 years of age who is not under legal disability.
Section 2. Term.
(A) Each Trustee named herein, or elected or appointed prior to the first
meeting of the Shareholders, shall (except in the event of resignations or
removals or vacancies pursuant to Section 2(b) or 2(c) hereof) hold office until
his or her successor has been elected at such meeting and has qualified to serve
as Trustee. Beginning with the Initial Trustee, each Trustee shall hold office
during the lifetime of this Trust and until its termination as hereinafter
provided unless such Trustee resigns or is removed as provided in Section 2(b)
or 2(c) below.
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(B) Any Trustee may resign (without need for prior or subsequent
accounting) by an instrument in writing signed by him or her and delivered or
mailed to the Chairman, if any, the President or the Secretary and such
resignation shall be effective upon such delivery, or at a later date according
to the terms of the instrument.
(C) Any of the Trustees may be removed with or without cause by the
affirmative vote of the Shareholders or (provided the aggregate number of
Trustees, after such removal and after giving effect to any appointment made to
fill the vacancy created by such removal, shall not be less than the number
required by Section 1 hereof) with cause, by the action of two-thirds (2/3) of
the remaining Trustees. Removal with cause shall include, but not be limited to,
the removal of a Trustee due to physical or mental incapacity.
(D) Upon the resignation or removal of a Trustee, or his or her otherwise
ceasing to be a Trustee, he or she shall execute and deliver such documents as
the remaining Trustees shall require for the purpose of conveying to the Trust
or the remaining Trustees any Trust Property held in the name of the resigning
or removed Trustee. Upon the death of any Trustee or upon removal or resignation
due to any Trustee's incapacity to serve as trustee, his or her legal
representative shall execute and deliver on his or her behalf such documents as
the remaining Trustees shall require as provided in the preceding sentence.
Section 3. Vacancy. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, resignation, adjudicated
incompetence or other incapacity to perform the duties of the office, or
removal, of a Trustee. A vacancy shall also occur in the event of an increase in
the number of trustees as provided in Section 1. No such vacancy shall operate
to annul this Agreement or to revoke any existing trust created pursuant to the
terms of this Agreement. In the case of a vacancy, the Shareholders of at least
a majority of the Shares entitled to vote, acting at any meeting of the
Shareholders held in accordance with Article IV hereof, or, to the extent
permitted by the 1940 Act, a majority vote of the Trustees continuing in office
acting by written instrument or instruments, may fill such vacancy, and any
Trustee so elected by the Trustees or the Shareholders shall hold office as
provided in this Agreement. There shall be no cumulative voting by the
Shareholders in the election of Trustees.
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
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
Trustee appointed pursuant to Sections 2 and 3 of Article II of these Bylaws, or
elected pursuant to Section 3 of Article IV, and the Agreement shall have
accepted this appointment in writing and agreed in writing to be bound by the
terms of the Agreement, the Trust estate shall vest in the new Trustee or
Trustees, together with the continuing Trustees, without any further act or
conveyance, and he shall be deemed a Trustee hereunder.
Section 4. Delegation of Power. 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 less than two Trustees
personally exercise the other powers hereunder except as herein otherwise
expressly provided.
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Section 5. Inability to Serve Full Term. 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 the Agreement.
Section 6. Powers. 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 the
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 foreign jurisdiction and to do all such other
things and execute all such instruments as they deem necessary, proper or
desirable in 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 these Bylaws and the Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
Section 7. Meetings of the Trustees. The Trustees of the Trust may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 8. 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 9. Notice of Meetings. Notice of the time, date, and place of all
meetings of the Trustees shall be given to each Trustee by telephone, facsimile,
electronic-mail, or other electronic mechanism sent to his or her home or
business address at least twenty-four hours in advance of the meeting or in
person at another meeting of the Trustees or by written notice mailed to his or
her home or business address at least seventy-two hours in advance of the
meeting.
Section 10. Quorum. At all meetings of the Trustees following the issuance
of shares of the Trust, a majority of the Trustees then in office (but in no
event less than two Trustees) shall constitute a quorum for the transaction of
business and the act of a majority of the Trustees present at any meeting at
which there is a quorum shall be the act of the Board of Trustees, except as may
be otherwise 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, the Trustees present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 11. Action Without Meeting. Unless otherwise restricted by the
Agreement or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Trustees or of any committee thereof may be taken
without a meeting by unanimous written consent of the Trustees or committee
members (or by written consent of a majority of the Trustees if the President of
the Trust determines that such exceptional circumstances exist, and are of such
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urgency, as to make unanimous written consent impossible or impractical, which
determination shall be conclusive and binding on all Trustees and not otherwise
subject to challenge) and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 12. Designation, Powers, and Name of Committees. The Board of
Trustees may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of two or more of the Trustees
of the Trust. The Board may designate one or more Trustee as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. Each committee, to the extent provided in the
resolution, 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 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.
Section 13. Minutes of Committee. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Trustees when required.
Section 14. Compensation of Trustees. The Trustees as such shall be
entitled to reasonable compensation for their services as determined from time
to time by the Board of Trustees. 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.
ARTICLE III
OFFICERS
Section 1. Executive Officers. The Board of Trustees shall elect the
initial executive officers of the Trust as soon as practicable after the
organization of the Trust. The executive officers may include a Chairman of the
Board, and shall include a President, one or more Vice Presidents (the number
thereof to be determined by the Board of Trustees), a Secretary and a Treasurer.
The Chairman of the Board, if any, shall be selected from among the Trustees.
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 which may
occur in any office. The same person may hold any two offices, except for those
of President and Vice President, 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.
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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 with respect to any other 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.
Section 3. President. The President shall be the chief executive officer of
the Trust and, subject to the Board of Trustees, shall generally manage the
business and affairs of the Trust. If there is no Chairman of the Board, or if
the Chairman of the Board has been appointed but is absent, the President shall,
if present, preside at all meetings of the shareholders and the Board of
Trustees.
Section 4. Chairman of the Board. The Chairman of the Board, if any, shall
preside at all meetings of the shareholders and the Board of Trustees, if the
Chairman of the Board is present. The Chairman of the Board 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 President.
Section 5. Other Officers. The Chairman of the Board or one or more Vice
Presidents shall have and exercise such powers and duties of the President in
the absence or inability to act of the President, as may be assigned to them,
respectively, by the Board of Trustees or, to the extent not so assigned, by the
President. In the absence or inability to act of the President, the powers and
duties of the President not otherwise assigned by the Board of Trustees or the
President shall devolve upon the Chairman of the Board, or in the Chairman's
absence, the Vice Presidents in the order of their election.
Section 6. Secretary. The Secretary shall (a) have custody of the seal of
the Trust; (b) attend meetings of the shareholders, the Board of Trustees, and
any committees of Trustees and keep the minutes of such meetings of
shareholders, Board of Trustees and any committees thereof; and (c) 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. The Secretary shall also 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 or series of any class of shares of beneficial interest held by them,
respectively, and the dates when they became the record owners thereof, and such
book shall be open for inspection as prescribed by the laws of the State of
Delaware.
Section 7. 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
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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 8. 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 Investment Company Act of 1940, as amended ("1940 Act") and the rules and
regulations of the Securities and Exchange Commission ("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.
ARTICLE IV
MEETINGS OF 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
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 shareholder of record
entitled to vote thereat shall be entitled to vote either in person or by proxy,
which term shall include proxies provided 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 Trustees or
one or more executive officers of the Trust. Unless a proxy provides otherwise,
such proxy is not valid more than eleven months after its date. A proxy with
respect to shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger.
Section 2. Nominations of Trustees. Nominations of individuals for election
to the Board of Trustees shall be made by the Board of Trustees or a nominating
committee of the Board of Trustees, if one has been established (the "Nominating
Committee"). Any shareholder of the Trust may submit names of individuals to be
considered by the Nominating Committee or the Board of Trustees, as applicable,
provided, however, (i) 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 (ii)
that the Nominating Committee or the Board of Trustees, as applicable, shall
make the final determination of persons to be nominated.
Section 3. Election of Trustees. All meetings of 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
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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. The initial Trustee shall have
the authority to elect additional trustees prior to the issuance of the shares.
Section 4. Notice of Meetings. Written notice of any meeting stating the
place, date, and hour of the meeting shall be given to each shareholder entitled
to vote at such meeting not less than ten days before the date of the meeting in
accordance with Article V hereof.
Section 5. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by applicable law or by the
Agreement, may be called by any Trustee; provided, however, that the Trustees
shall promptly call a meeting of the shareholders solely for the purpose of
removing one or more Trustees, when requested in writing so to do by the record
holders of not less than ten percent of the outstanding shares of the Trust.
Section 6. Notice of Special Meeting. Written notice of a special meeting
stating the place, date, and hour of the meeting and the purpose of 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.
Section 7. Conduct of Special Meeting. Business transacted at any special
meeting of shareholders shall be limited to the purpose stated in the notice.
Section 8. Quorum. The holders of one-third of the shares of beneficial
interests that are issued and outstanding and 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. 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, 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 Chairman of the Board of Trustees shall preside at each
meeting of shareholders. In the absence of the Chairman of the Board, the
meeting shall be chaired by the President, or if the President shall not be
present, by a Vice President. In the absence of all such officers, the meeting
shall be chaired by a person elected for such purpose 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 shareholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and regulations
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of the Board of Trustees, if any, the chairman 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 chairman, 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 chairman 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 chairman of the meeting determines that meetings of shareholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
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
shareholders of the Trust, or any action which may be taken at any meeting of
such 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.
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 or shareholder, at his address as it appears
on the records of the Trust, with postage thereon prepaid, and such notice shall
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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 may also be given by
telex, telegram, telecopier or via overnight courier. If sent by telex or
telecopier, notice to a Trustee or member of a committee shall be deemed to be
given upon transmittal; if sent by telegram, notice to a Trustee or member of a
committee shall be deemed to be given when the telegram, so addressed, is
delivered to the telegraph company, and if sent via overnight courier, notice to
a Trustee or member of a committee shall be deemed to be given when delivered
against a receipt therefor.
Section 2. 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
Section 1. Issuance.
(A) Shares shall be deemed to be personal property giving only the rights
provided in this Agreement. Every Shareholder by virtue of acquiring Shares
shall be held to have expressly assented and agreed to the terms hereof and to
be bound hereby. The death, incapacity, dissolution, termination or bankruptcy
of a Shareholder during the continuance of the Trust shall not operate to
dissolve or terminate the Trust or any series thereof nor entitle the
representative of such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but only to the rights of
such Shareholder under this Trust. 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 partners. Neither the
Trust nor the Trustees, nor any officer, employee or agent for the Trust shall
have any power to bind personally any Shareholder, nor except as specifically
provided herein 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.
(B) A register shall be kept by the Trust under the direction of the
Trustees which shall contain the names and addresses of the Shareholders and
Interests held by each Shareholder. Each such register shall be conclusive as to
the identity of the Shareholders of the Trust and the Persons who shall be
entitled to payments of distributions or otherwise to exercise or enjoy the
rights of Shareholders. No Shareholder shall be entitled to receive payment of
any distribution, nor to have notice given to it as herein provided, until it
has given its address to such officer or agent of the Trustees as shall keep the
said register for entry thereon. No certificates certifying the ownership of
interests need be issued except as the Trustees may otherwise determine from
time to time.
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Section 2. Countersignature. Where a certificate is countersigned (1) by a
transfer agent other than the Trust or its employee, or, (2) by a registrar
other than the Trust or its employee, the signature of the Trustee may be a
facsimile.
Section 3. Lost Certificates. The Board of Trustees may direct a new
certificate or certificates to be issued in place of any certificate or
certificates therefore issued by the Trust alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Trustees may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the Trust a bond in such sum as it may direct as indemnity against any
claim that may be made against the Trust with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 4. Transfer of Shares. The Trustees shall make such rules as they
consider appropriate for the transfer of shares and similar matters. To the
extent certificates are issued in accordance with Section 1 of this Article VI,
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, it shall be the duty of the
Trust to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 5. Fixing Record Date. In order that the Trustees may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to action in writing without a
meeting, or 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 beneficial interests or for the purpose of any
other lawful action, 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 date of such meeting, 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, nor more than ninety days prior to any other action. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of 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.
Section 6. Registered Shareholders. The Trust shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice hereof, except as otherwise provided by
the laws of Delaware.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends and Other 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 other 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.
Section 2. Redemptions. Any holder of record of shares of a particular
Portfolio, or Class thereof, shall have the right to require the Trust to redeem
his shares, or any portion thereof, subject to the terms and conditions set
forth in the registration statement in effect from time to time. The redemption
price may in any case or cases be paid wholly or partly in kind if the Trustees
determine that such payment is advisable in the interest of the remaining
shareholders of the Portfolio or Class thereof for which the shares are being
redeemed. Subject to the foregoing, 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 by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any Person in transferring
securities selected for delivery as all or part of any payment in kind.
The Trustees may, at their option, and at any time, have the right to
redeem shares of any shareholder of a particular Portfolio or Class thereof in
accordance with Section 2 of this Article VII. The Trustees may refuse to
transfer or issue shares to any person to the extent that the same is necessary
to comply with applicable law or advisable to further the purposes for which the
Trust is formed.
If, at any time when a request for transfer or redemption of Shares of any
Portfolio is received by the Trust or its agent, the value of the shares of such
Portfolio in a Shareholder's account is less than Five Hundred Dollars
($500.00), after giving effect to such transfer or redemption, the Trust may, at
any time following such transfer or redemption and upon giving thirty (30) days'
notice to the Shareholder, cause the remaining Shares of such Portfolio in such
Shareholder's account to be redeemed at net asset value in accordance with such
procedures set forth above.
Section 3. Indemnification. Every person who is, or has been, a Trustee or
officer of the Trust shall be indemnified by the Trust to the fullest extent
permitted by the Delaware Business Trust Act, these Bylaws and other applicable
law.
Section 4. Advance Payments of Indemnifiable Expenses. To the maximum
extent permitted by the Delaware Act and other applicable law, the Trust or
applicable Portfolio may advance to a Covered Person, in connection with the
preparation and presentation of a defense to any claim, action, suit, or
proceeding, expenses for which the Covered Person would ultimately be entitled
to indemnification; provided that the Trust or applicable Portfolio has received
an undertaking by or on behalf of such Covered Person that such amount will be
paid over by him to the Trust or applicable Portfolio if it is ultimately
determined that he is not entitled to indemnification for such expenses, and
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further provided that (i) such Covered Person shall have provided appropriate
security for such undertaking, (ii) the Trust is insured against losses arising
out of any such advance payments, or (iii) either a majority of the Trustees who
are not interested persons (as defined in the 1940 Act) of the Trust nor parties
to the matter, or 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
will not be disqualified from indemnification for such expenses.
Section 5. Seal. The business seal shall have inscribed thereon the name of
the business trust, the year of its organization and the word "Business Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced. Any officer or Trustee of the
Trust shall have authority to affix the corporate seal of the Trust to any
document requiring the same.
Section 6. Severability. The provisions of these Bylaws are severable. If
the Board of Trustees determines, with the advice of counsel, that any provision
hereof conflicts with the 1940 Act, the regulated investment company provisions
of the Internal Revenue Code, or other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of these
Bylaws; provided, however, that such determination shall not affect any of the
remaining provisions of these Bylaws or render invalid or improper any action
taken or omitted prior to such determination. 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 7. 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
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered or repealed at any
regular or special meeting of the Board of Trustees without prior notice. These
Bylaws may also be altered or repealed at any special meeting of the
shareholders, but only if the Board of Trustees resolves to put a proposed
alteration or repealer to the vote of the shareholders and notice of such
alteration or repealer is contained in a notice of the special meeting being
held for such purpose.
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