BY-LAWS
of
ASSETMARK FUNDS
A Delaware Business Trust
(Effective _______ ___, 2001)
Unless otherwise specified in these By-Laws, capitalized terms used in
these By-Laws shall have the meanings assigned to them in the Agreement and
Declaration of Trust of AssetMark Funds, as amended or restated from time to
time (the "Declaration of Trust").
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of AssetMark Funds (the "Trust") shall be 2300 Contra Costa Boulevard, Suite
425, Pleasant Hill, CA 94523. The Board of Trustees (the "Board") may, from time
to time, change the location of the principal executive office of the Trust to
any place within or outside the State of Delaware. All communications to the
Trust, to any officer, on behalf of the Trust, or to the Board shall be
addressed to the principal executive office of the Trust, to the appropriate
attention.
Section 2. OTHER OFFICES. The Board may at any time establish
branch or subordinate offices at any place or places where the Trust intends
to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of Shareholders shall be held at
any place within or outside the State of Delaware designated by the Board. In
the absence of any such designation by the Board, Shareholders' meetings shall
be held at the principal executive office of the Trust.
Section 2. CALL OF MEETING. Any meeting of Shareholders may be called
at any time by the Board, by the chairperson of the Board or by the president
for the purpose of taking action upon any matter deemed by the Board to be
necessary or desirable. To the extent provided by the 1940 Act, a meeting of the
Shareholders for the purpose of electing Trustees may also be called by
Shareholders holding not less than 25 percent of the outstanding Shares.
Section 3. NOTICE OF SHAREHOLDERS' MEETING. Notice of any meeting of
Shareholders shall be given to each Shareholder entitled to vote at such meeting
in accordance with Section 4 of this Article II not less than ten (10) nor more
than one hundred and twenty (120) days before the date of the meeting. The
notice shall specify (i) the place, date and hour of the meeting, and (ii) the
general nature of the business to be transacted. The notice of any meeting at
which Trustees are to be elected also shall include the name of any nominee or
nominees who are intended to be presented for election.
Section 4. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of Shareholders shall be given either personally or by first-class mail,
courier, cablegram, telegram, facsimile or electronic mail, or other form of
communication as permitted by then current law, charges prepaid, addressed to
the Shareholder or to the group of shareholders at the same address as may be
permitted pursuant to the 1940 Act, or as Shareholders may otherwise consent, at
the address of that Shareholder appearing on the books of the Trust or its
transfer or similar agent or given by the Shareholder to the Trust for the
purpose of notice. Notice shall be deemed to have been duly given when delivered
personally, deposited in the United States mail or with a courier, or sent by
cablegram, telegram, facsimile or electronic mail. If no address of a
Shareholder appears on the Trust's books or is given, notice shall be deemed to
have been duly given without a mailing, or substantial equivalent thereof, if
such notice shall be available to the Shareholder on written demand of the
Shareholder at the Trust's principal executive office.
If any notice addressed to a Shareholder at the address of that
Shareholder appearing on the books of the Trust or given by that Shareholder to
the Trust for the purpose of notice, is returned to the Trust marked to indicate
that the notice to the Shareholder cannot be delivered at that address, all
future notices or reports shall be deemed to have been duly given without
further mailing, or substantial equivalent thereof, if such notices shall be
available to the Shareholder on written demand of the Shareholder at the
principal executive office of the Trust.
An affidavit of the mailing or other means of giving any notice of any
Shareholders' meeting shall be executed by the secretary, any assistant
secretary or any transfer or similar agent of the Trust giving the notice and
shall be filed and maintained in the records of the Trust. Such affidavit shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
Section 5. ADJOURNED MEETING; NOTICE. Any Shareholders' meeting,
whether or not a quorum is present, may be adjourned from time to time by not
less than a majority of the votes cast of Shares entitled to vote, present in
person or by proxy at the meeting, or by the chairperson of the Board or by the
president, in the absence of the chairperson of the Board. Any adjournment may
be made with respect to any business which might have been transacted at such
meeting and any adjournment will not delay or otherwise affect the effectiveness
and validity of any business transacted at the Shareholders' meeting prior to
adjournment.
When any Shareholders' meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting, or unless the
adjournment is for more than thirty (30) days, in which case, notice shall be
given to each Shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 3 and 4 of this Article II. At any
adjourned meeting, any business may be transacted that might have been
transacted at the original meeting.
Section 6. VOTING. The Shareholders entitled to vote at any meeting of
Shareholders shall be determined in accordance with the provisions of the
Declaration of Trust. The Shareholders' vote may be by voice vote or by ballot;
PROVIDED, HOWEVER, that any election of Trustees must be by ballot if demanded
by any Shareholder before the voting has begun. On any matter other than
elections of Trustees, any Shareholder may vote part of its Shares in favor of
the proposal and refrain from voting its remaining Shares or vote them against
the proposal, but if the Shareholder fails to specify the number of Shares which
the Shareholder is voting affirmatively, it will be conclusively presumed that
the Shareholder's approving vote is with respect to the total Shares that the
Shareholder is entitled to vote on such proposal.
Section 7. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS.
Attendance by a person at a meeting shall constitute a waiver of notice of that
meeting with respect to that person, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened and except that such attendance is not a
waiver of any right to object to the consideration of matters not included in
the notice of the meeting if that objection is expressly made at the beginning
of the meeting. Whenever notice of a Shareholders' meeting is required to be
given to a Shareholder under the Declaration of Trust or these By-Laws, a
written waiver thereof, executed before or after the time notice is required to
be given, by such Shareholder or his or her attorney thereunto authorized, shall
be deemed equivalent to such notice.
Section 8. PROXIES. Every Shareholder entitled to vote for Trustees or
on any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the Shareholder and filed
with the secretary of the Trust; PROVIDED, that an alternative to the execution
of a written proxy may be permitted as provided in the second paragraph of this
Section 8. A proxy shall be deemed signed if the Shareholder's name is placed on
the proxy (whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the Shareholder or the Shareholder's attorney-in-fact. A validly
executed proxy that does not state that it is irrevocable shall continue in full
force and effect unless (i) revoked by the Shareholder executing it by a written
notice delivered to the secretary of the Trust prior to the exercise of the
proxy or by the Shareholder's attendance and vote in person at the meeting; or
(ii) certification of the death or incapacity of the Shareholder is received by
the secretary of the Trust at or prior to the exercise of the proxy; PROVIDED,
HOWEVER, that no proxy shall be valid after the expiration of eleven (11) months
from the date of the proxy unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of the General Corporation Law of the State of
Delaware.
With respect to any Shareholders' meeting, the Board may act to permit
proxies by any electronic, telephonic, computerized, telecommunications or other
reasonable alternative to the execution of a written instrument authorizing the
proxy to act. 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 the
exercise of the proxy the secretary of 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 with the
challenger.
Section 9. INSPECTORS. Before any meeting of Shareholders, the
chairperson of the Board may appoint any person other than nominees for office
to act as inspector at the meeting or its adjournment. If any person appointed
as inspector fails to appear or fails or refuses to act, the chairperson of the
Board shall appoint a person to fill the vacancy.
The inspector shall:
(a) determine the number of Shares outstanding and the voting
power of each, the Shares represented at the meeting, the existence of a quorum
and the authenticity, validity and effect of proxies;
(b) receive votes or ballots;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes;
(e) determine when the polls shall close;
(f) determine the result of voting; and
(g) do any other acts that may be proper to conduct the
election or vote with fairness to all Shareholders.
ARTICLE III
TRUSTEES
Section 1. VACANCIES. Whenever a vacancy in the Board shall occur,
until such vacancy is filled as provided in the Declaration of Trust and these
By-Laws, the Trustee(s) in office, regardless of the number, shall have all the
powers granted to the Board and shall discharge all the duties imposed upon the
Board by the Declaration of Trust and these By-Laws. Vacancies in the Board may
be filled by not less than a majority of the remaining Trustees, though less
than a quorum, or by a sole remaining Trustee, unless a meeting of Shareholders
is called for the purpose of filling such vacancies. Notwithstanding the above,
whenever and for so long as the Trust is a participant in or otherwise has in
effect a plan under which the Trust may be deemed to bear expenses of
distributing its Shares as that practice is described in Rule 12b-1 under the
1940 Act, then the selection and nomination of the Trustees who are not
"interested persons" of the Trust, as that term is defined in the 1940 Act (such
Trustees are referred to herein as "disinterested Trustees"), shall be, and is,
committed to the discretion of the disinterested Trustees remaining in office.
In the event of the death, resignation, removal, declaration as bankrupt or
incapacity of all of the Trustees, the Trust's initial Investment Adviser or any
successor thereto shall serve as the sole remaining Trustee effective upon the
last Trustee's death, resignation, removal, declaration as bankrupt or
incapacity, subject to the provisions of the 1940 Act. In such case, the
Investment Adviser, as the sole remaining Trustee, shall, as soon as
practicable, fill all of the vacancies on the Board with not less than the
percentage of disinterested Trustees required by the 1940 Act and thereupon
resign as Trustee, and a Shareholders' meeting shall be called for the election
of Trustees as required by the 1940 Act.
Section 2. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. All meetings of
the Board may be held at any place within or outside the State of Delaware that
is designated from time to time by the Board. In the absence of such a
designation, regular meetings shall be held at the principal executive office of
the Trust. Any meeting, regular or special, may be held by conference telephone
or similar communication equipment, so long as all Trustees participating in the
meeting can hear one another, and all such Trustees shall be deemed to be
present in person at such meeting.
Section 3. REGULAR MEETINGS. Regular meetings of the Board shall
be held without call at such time as shall from time to time be fixed by the
Board. Such regular meetings may be held without notice.
Section 4. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the chairperson of the Board,
the president, any vice president, the secretary or any Trustee.
Notice of the purpose, time and place of special meetings shall be
given personally, sent by first-CLASS mail, courier, cablegram or telegram,
charges prepaid, or by facsimile or electronic mail, addressed to each Trustee
at that Trustee's address as it is shown on the records of the Trust. In case
the notice is mailed, it shall be deemed to be duly given if deposited in the
United States mail at least seven (7) days before the time of the holding of the
meeting. In case the notice is given personally or is given by courier,
cablegram, telegram, facsimile or electronic mail, it shall be deemed to be duly
given if delivered at least forty-eight (48) hours before the time of the
holding of the meeting. The notice need not specify the place of the meeting if
the meeting is to be held at the principal executive office of the Trust.
Section 5. QUORUM. At all meetings of the Board, a majority of the
entire Board shall constitute a quorum for the transaction of business. A
meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of Trustees if any action taken is approved by at
least a majority of the required quorum for that meeting.
Section 6. WAIVER OF NOTICE. Whenever notice is required to be given to
a Trustee under this Article, a written waiver of notice signed by the Trustee,
whether before or after the time notice is required to be given, shall be deemed
equivalent to notice. The waiver of notice need not specify the purpose of, or
the business to be transacted at, the meeting. All such waivers shall be filed
with the records of the Trust or made a part of the minutes of the meeting.
Attendance of a Trustee at a meeting shall constitute a waiver of notice of such
meeting, except when the Trustee attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
Section 7. ADJOURNMENT. A majority of the Trustees present at a meeting
of the Trustees, whether or not a quorum is present, may adjourn any business
which might have been transacted at the meeting to another time and place. Any
adjournment will not delay or otherwise affect the effectiveness and validity of
any business transacted at the meeting prior to adjournment.
Section 8. NOTICE OF ADJOURNMENT. Notice of the time and place of an
adjourned meeting need not be given if the time and place thereof are announced
at the meeting at which the adjournment is taken. If the adjournment is for more
than thirty (30) days, notice of the adjourned meeting shall be given to each
Trustee.
Section 9. COMPENSATION OF TRUSTEES. Trustees and members of committees
may receive from the Trust, reasonable compensation for their services and
reimbursement of reasonable expenses as may be determined by a majority vote of
the Board. This Section 9 shall not be construed to preclude any Trustee from
serving the Trust in any other capacity as an officer, agent, employee, or
otherwise and receiving compensation and reimbursement of expenses for those
services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF TRUSTEES. The Board may, by majority vote,
designate one or more committees, each consisting of two (2) or more Trustees,
to serve at the pleasure of the Board. The Board may designate one or more
Trustees as alternate members of any committee who may replace any absent member
at any meeting of the committee. Any committee, to the extent provided by the
Board, shall have the authority of the Board, except with respect to:
(a) the approval of any action which under the Declaration of Trust,
these By-Laws or applicable law also requires Shareholder approval or requires
approval by a majority of the Board or certain members of the Board;
(b) the filling of vacancies on the Board or in any committee;
(c) the fixing of compensation of the Trustees for serving on the
Board or on any committee;
(d) the amendment, restatement or repeal of the Declaration of
Trust or of these By-Laws or the adoption of a new Declaration of Trust or
new By-Laws;
(e) the amendment or repeal of any resolution of the Board; or
(f) the designation of any other committee of the Board or the members
of such committee.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
any committee shall, to the extent applicable, be governed by and be held and
taken in accordance with the provisions of Article IV of the Declaration of
Trust and Article III of these By-Laws, with such changes in the context thereof
as are necessary to substitute the committee and its members for the Board and
its members, except that the time of regular meetings of any committee may be
determined either by the Board or by the committee. Special meetings of any
committee may also be called by resolution of the Board, and notice of special
meetings of any committee shall also be given to all alternate members who shall
have the right to attend all meetings of the committee. The Board may adopt
rules for the government of any committee not inconsistent with the provisions
of the Declaration of Trust and these By-Laws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Trust shall be a president, a
secretary, and a treasurer. The Trust may also have, at the discretion of the
Board, one or more vice presidents, one or more assistant vice presidents, one
or more assistant secretaries, one or more assistant treasurers and such other
officers, who shall have such authority and perform such duties as are provided
in the Declaration of Trust, these By-Laws or as the Board (and in the case of a
vice president, the Board or the president) may from time to time determine. Any
number of offices may be held by the same person, except the offices of
president and vice president.
Section 2. APPOINTMENT OF OFFICERS. The officers of the Trust shall be
appointed by the Board, and each shall serve at the pleasure of the Board,
subject to the rights, if any, of an officer under any contract of employment.
Section 3. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights,
if any, of an officer under any contract of employment, any officer may be
removed, either with or without cause, by the Board at any regular or special
meeting of the Board, or by an officer upon whom such power of removal may be
conferred by the Board.
Any officer may resign at any time by giving written notice to the
Trust. Any resignation shall take effect upon the date of receipt of that notice
or at any later time specified in such notice. Unless otherwise specified in
such notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of the
Trust under any contract to which the officer is a party.
Section 4. VACANCIES IN OFFICES. A vacancy in any office because of
death, resignation, removal, disqualification, incapacity or other cause shall
be filled in the manner prescribed in these By-Laws for regular appointment to
that office.
Section 5. PRESIDENT. The president shall, subject to the control of
the Board, have the general powers and duties of management usually vested in
the office of president of a corporation and shall have such other powers and
duties as may be prescribed by the Board and as provided in the Declaration of
Trust and these By-Laws. In the absence of the chairperson of the Board, the
president shall preside at all meetings of the Shareholders and at all meetings
of the Board.
Section 6. VICE PRESIDENTS. In the absence, resignation, removal,
incapacity or death of the president, the vice presidents, if any, in order of
their rank as fixed by the Board or if not ranked, a vice president designated
by the Board, shall exercise all the powers and perform all the duties of, and
be subject to all the restrictions upon, the president until the president's
return, his incapacity ceases or a new president is appointed. Each vice
president shall have such other powers and perform such other duties as from
time to time may be prescribed by the Board or the president, and as provided in
the Declaration of Trust and these By-Laws.
Section 7. SECRETARY. The secretary shall keep or cause to be kept at
the principal executive office of the Trust or such other place as the Board may
direct a book of minutes of all meetings and actions (including consents) of the
Board, committees of the Board and Shareholders with the time and place of
holding, whether regular or special, and if special, how authorized, the notice
given, the names of those present at Board meetings or committee meetings, the
number of Shares present or represented by proxy at Shareholders' meetings, and
the proceedings.
The secretary shall cause to be kept at the principal executive office
of the Trust or at the office of the Trust's transfer or similar agent, as
determined by resolution of the Board, a share register or a duplicate share
register showing the names of all Shareholders and their addresses, the number,
Series and classes (if applicable) of Shares held by each, the number and date
of certificates, if any, issued for the same and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give or cause to be given notice of all meetings of
the Shareholders and of the Board required by the Declaration of Trust, these
By-Laws or by applicable law to be given and shall have such other powers and
perform such other duties as may be prescribed by the Board or the president,
and as provided in the Declaration of Trust and these By-Laws.
Section 8. TREASURER. The treasurer shall be the chief financial
officer of the Trust and shall keep and maintain or cause to be kept and
maintained adequate and correct books and records of accounts of the properties
and business transactions of the Trust (and every Series thereof), including
accounts of assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings and Shares. All books shall be kept in accordance
with the Declaration of Trust and these By-Laws.
The treasurer shall deposit all monies and other valuables in the name
and to the credit of the Trust with such depositories as may be designated by
the Board. He shall disburse the funds of the Trust (and any Series thereof) as
may be ordered by the Board, shall render to the president and the Board,
whenever they request it, an account of all of his transactions as chief
financial officer and of the financial condition of the Trust (and any Series
thereof) and shall have such other powers and perform such other duties as may
be prescribed by the Board, and as provided in the Declaration of Trust and
these By-Laws.
ARTICLE VI
INDEMNIFICATION OF TRUSTEES, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "Agent" means any person who is or was a Trustee, officer, employee or
other agent of this Trust or is or was serving at the request of the Trust as a
trustee, director, officer, employee or other agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise;
"Proceeding" means any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative; and "Expenses" include
without limitation attorneys' fees and any expenses of establishing a right to
indemnification under this Article.
Section 2. ACTIONS AGAINST THE AGENT. The Trust shall indemnify, out of
Trust Property, any person who was or is a party or is threatened to be made a
party to any Proceeding (other than an action by or in the right of the Trust)
by reason of the fact that such person is or was an Agent of the Trust, against
Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such person acted in
good faith and in a manner that such person reasonably believed to be in the
best interests of the Trust and in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any Proceeding by judgment, order, settlement, conviction or plea
of nolo contendere or its equivalent shall not of itself create a presumption
that the person did not act in good faith or in a manner which the person
reasonably believed to be in the best interests of the Trust or that the person
had reasonable cause to believe that the person's conduct was unlawful.
Section 3. ACTIONS BY THE TRUST. The Trust shall indemnify, out of
Trust Property, any person who was or is a party or is threatened to be made a
party to any Proceeding by or in the right of the Trust to procure a judgment in
its favor by reason of the fact that such person is or was an Agent of the
Trust, against Expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with such Proceeding if such
person acted in good faith and in a manner that such person reasonably believed
to be in the best interests of the Trust and in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction or plea of nolo contendere or its equivalent shall not of itself
create a presumption that the person did not act in good faith or in a manner
which the person reasonably believed to be in the best interests of the Trust or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 4. EXCLUSION OF INDEMNIFICATION. Notwithstanding any provision
to the contrary contained herein, there shall be no right to indemnification for
any liability arising by reason of willful misfeasance, bad faith, gross
negligence, or the reckless disregard of the Agent's respective duties to the
Trust or the Shareholders.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a) In respect of any claim, issue or matter as to which that person
shall have been adjudged to be liable in the performance of that person's duty
to the Trust or the Shareholders, unless and only to the extent that the court
in which that action was brought shall determine upon application that in view
of all the circumstances of the case, that person was not liable by reason of
the disabling conduct set forth in the preceding paragraph and is fairly and
reasonably entitled to indemnity for the expenses which the court shall
determine; or
(b) In respect of any claim, issue, or matter as to which that person
shall have been adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in the person's official capacity; or
(c) Of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval, or of Expenses incurred in
defending a threatened or pending action which is settled or otherwise disposed
of without court approval, unless the required approval set forth in Section 6
of this Article is obtained.
Section 5. SUCCESSFUL DEFENSE BY AGENT. To the extent that an Agent of
the Trust has been successful on the merits in defense of any Proceeding
referred to in Sections 2 or 3 of this Article or in defense of any claim, issue
or matter therein, before the court or other body before whom the Proceeding was
brought, the Agent shall be indemnified against Expenses actually and reasonably
incurred by the Agent in connection therewith, provided that the Board,
including a majority who are disinterested Trustees and not parties to such
Proceeding, or a written opinion by an independent legal counsel, also
determines that based upon a review of the facts, the Agent was not liable by
reason of the disabling conduct referred to in Section 4 of this Article.
Section 6. REQUIRED APPROVAL. Except as provided in Section 5 of this
Article, any indemnification under this Article shall be made by the Trust only
if authorized in the specific case on a determination that indemnification of
the Agent is proper in the circumstances because the Agent has met the
applicable standard of conduct set forth in Sections 2 or 3 of this Article and
is not prohibited from indemnification because of the disabling conduct set
forth in Section 4 of this Article, by:
(a) A majority vote of Trustees who are not parties to the Proceeding
and are disinterested Trustees; or
(b) A written opinion by an independent legal counsel.
Section 7. ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
Proceeding may be advanced by the Trust before the final disposition of the
Proceeding on receipt of an undertaking by or on behalf of the Agent to repay
the amount of the advance unless it shall be determined ultimately that the
Agent is entitled to be indemnified as authorized in this Article, provided the
Agent provides a security for his undertaking, or a majority of the
disinterested Trustees who are not parties to such Proceeding, or an independent
legal counsel in a written opinion, determine that based on a review of readily
available facts, there is reason to believe that said Agent ultimately will be
found entitled to indemnification.
Section 8. OTHER CONTRACTUAL RIGHTS. Nothing contained in this Article
shall affect any right to indemnification to which persons other than Trustees
and officers of the Trust or any subsidiary thereof may be entitled by contract
or otherwise.
Section 9. LIMITATIONS. No indemnification or advance shall be made
under this Article, except as provided in Sections 5 or 6, in any
circumstances where it appears:
(a) That it would be inconsistent with a provision of the Declaration
of Trust, a resolution of the Shareholders, or an agreement which prohibits or
otherwise limits indemnification that was in effect at the time of accrual of
the alleged cause of action asserted in the Proceeding in which the Expenses
were incurred or other amounts were paid; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 10. FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This Article does not
apply to any Proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in that person's capacity as such, even
though that person may also be an Agent of the Trust as defined in Section 1 of
this Article. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or other fiduciary
may be entitled by contract or otherwise which shall be enforceable to the
extent permitted by applicable law other than this Article.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The Trust
shall keep at its principal executive office or at the office of its transfer or
similar agent a record of its Shareholders, providing the names and addresses of
all Shareholders and the number, Series and classes, if any, of Shares held by
each Shareholder. Such record may be inspected during regular business hours by
any Shareholder, or its duly authorized representative, upon reasonable written
demand to the Trust for any purpose reasonably related to such Shareholder's
interest as a Shareholder.
Section 2. MAINTENANCE AND INSPECTION OF BY-LAWS. The Trust shall keep
at its principal executive office the original or a copy of these By-Laws as
amended or restated from time to time where it may be inspected during regular
business hours by any Shareholder, or its duly authorized representative, upon
reasonable written demand to the Trust for any purpose reasonably related to
such Shareholder's interest as a Shareholder.
Section 3. MAINTENANCE AND INSPECTION OF OTHER RECORDS. The accounting
books and records and minutes of proceedings of the Shareholders and the Board
and any committee or committees of the Board shall be kept at such place or
places designated by the Board or in the absence of such designation, at the
principal executive office of the Trust. The minutes shall be kept in written
form and the accounting books and records shall be kept either in written form
or in any other form capable of being converted into written form. The minutes,
accounting books and records may be inspected upon the reasonable written demand
to the Trust of any Shareholder or its duly authorized representative, during
regular business hours for any purpose reasonably related to such Shareholder's
interest as a Shareholder.
The Board or any officer to whom such power may be delegated by the
Board, shall establish reasonable standards governing, without limitation, the
information and documents to be furnished and the time and the location, if
appropriate, of furnishing such information and documents. Costs of providing
such information and documents shall be borne by the requesting Shareholder. The
Trust shall be entitled to reimbursement for its direct, out-of-pocket expenses
incurred in declining unreasonable requests (in whole or in part) for
information or documents.
The Board or such officer to whom such power is delegated by the Board,
may keep confidential from Shareholders for such period of time as it deems
reasonable any information that it reasonably believes to be in the nature of
trade secrets or other information that the Board or such officer, as the case
may be, in good faith believes would not be in the best interests of the Trust
to disclose or that could damage the Trust or its business or that the Trust is
required by law or by agreement with a third party to keep confidential.
Section 4. INSPECTION BY TRUSTEES. Every Trustee shall have the
absolute right during regular business hours 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.
ARTICLE VIII
DIVIDENDS
Section 1. DECLARATION OF DIVIDENDS. Dividends upon the Shares may,
subject to the provisions of the Declaration of Trust, if any, be declared by
the Board at any regular or special meeting, pursuant to applicable law.
Dividends may be paid in cash or in kind.
Section 2. RESERVES. Before payment of any dividend there may be set
aside out of any funds of the Trust or the applicable Series thereof available
for dividends such sum or sums as the Board may, from time to time, in its
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Trust or such Series thereof, or for such other purpose as the Board shall deem
to be in the best interests of the Trust or the applicable Series, as the case
may be, and the Board may abolish any such reserve in the manner in which it was
created.
ARTICLE IX
GENERAL MATTERS
Section 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. All checks,
drafts, or other orders for payment of money, notes or other evidences of
indebtedness issued in the name of or payable to the Trust shall be signed or
endorsed by such person or persons and in such manner as from time to time shall
be determined by resolution of the Board.
Section 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board, except
as otherwise provided in the Declaration of Trust and these By-Laws, may
authorize any officer or officers or agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the Trust or any
Series thereof and this authority may be general or confined to specific
instances; and unless so authorized or ratified by the Board or within the
agency power of an officer, no officer, agent, or employee shall have any power
or authority to bind the Trust or any Series thereof by any contract or
engagement or to pledge its credit or to render it liable for any purpose or for
any amount.
Section 3. CERTIFICATES FOR SHARES. A certificate or certificates for
Shares may be issued to Shareholders at the discretion of the Board. All
certificates shall be signed in the name of the Trust by the chairperson of the
Board or the president or vice president and by the treasurer or an assistant
treasurer or the secretary or any assistant secretary, certifying the number of
Shares and the Series and class thereof, if any, owned by the Shareholder. Any
or all of the signatures on the certificate may be facsimile. In case any
officer or transfer or similar agent who has signed or whose facsimile signature
has been placed on a certificate shall have ceased to be such officer or
transfer or similar agent before such certificate is issued, it may be issued by
the Trust with the same effect as if such person were an officer or transfer or
similar agent at the date of issue. Notwithstanding the foregoing, the Trust may
adopt and use a system of issuance, recordation and transfer of its shares by
electronic or other means.
Section 4. LOST CERTIFICATES. Except as provided in this Section 4, no
new certificates for Shares shall be issued to replace an old certificate unless
the latter is surrendered to the Trust and cancelled at the same time. The Board
may, in case any Share certificate or certificate for any other security is
lost, stolen, or destroyed, authorize the issuance of a replacement certificate
on such terms and conditions as the Board may require, including a provision for
indemnification of the Board and the Trust secured by a bond or other adequate
security sufficient to protect the Trust and the Board against any claim that
may be made against it, including any expense or liability on account of the
alleged loss, theft, or destruction of the certificate or the issuance of the
replacement certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY TRUST.
The chairperson of the Board, the president or any vice president or any other
person authorized by resolution of the Board or by any of the foregoing
designated officers, is authorized to vote or represent on behalf of the Trust
or any Series thereof any and all shares of any corporation, partnership, trust,
or other entity, foreign or domestic, standing in the name of the Trust or such
Series thereof. The authority granted may be exercised in person or by a proxy
duly executed by such designated person.
Section 6. TRANSFER OF SHARES. Shares shall be transferable only on the
record books of the Trust by the Person in whose name such Shares are
registered, or by his or her duly authorized attorney or representative. The
Trust transfer agent or other duly authorized agents may refuse any requested
transfer of shares, or request additional evidence of authority to safeguard the
assets or interests of the Trust or of its Shareholders, in their sole
discretion. In all cases of transfer by an attorney-in-fact, the original power
of attorney, or an official copy thereof duly certified, shall be deposited and
remain with the Trust, its transfer agent or other duly authorized agent. In
case of transfers by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
presented to the Trust, transfer agent or other duly authorized agent, and may
be required to be deposited and remain with the Trust, its transfer agent or
other duly authorized agent. No transfer shall be made unless and until the
certificate issued to the transferor, if any, shall be delivered to the Trust,
its transfer agent or other duly authorized agent, properly endorsed.
Section 7. HOLDERS OF RECORD. The Trust shall be entitled to treat the
holder of record of any Share as the owner thereof and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such Share
on the part of any other Person, whether or not the Trust shall have express or
other notice thereof.
Section 8. FISCAL YEAR. The fiscal year of the Trust and each Series
thereof shall be determined by resolution of the Board. The fiscal year of
the Trust shall be the taxable year of each Series of the Trust.
Section 9. HEADINGS; REFERENCES. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each other, as applicable.
ARTICLE X
AMENDMENTS
Section 1. AMENDMENT. These By-laws may be restated and/or amended at
any time by (a) an instrument in writing signed by not less than a majority of
the Board and without the approval of the Shareholders unless Shareholder
approval is required by the Declaration of Trust or the 1940 Act; or (b) the
vote of a majority of the outstanding Shares as defined in the 1940 Act. Such
instrument signed by the Trustees may be executed in any number of counterparts,
each of which shall be deemed an original. Any such restatement and/or amendment
hereto shall be effective immediately upon execution and approval or upon such
future date and time as may be stated therein.
