Exhibit (b)
BY-LAWS
The Willamette Funds
a Delaware Business Trust
Dated:_______________
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TABLE OF CONTENTS
BY-LAWS
Page
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ARTICLE I Offices ........................................................ 1
Section 1. Principal Office ........................................... 1
Section 2. Delaware Office ............................................ 1
Section 3. Other Offices .............................................. 1
ARTICLE II Meetings of Shareholders ...................................... 1
Section 1. Place of Meetings .......................................... 1
Section 2. Call of Meetings ........................................... 2
Section 3. Notice of Meetings of Shareholders ......................... 2
Section 4. Manner of Giving Notice; Affidavit of Notice ............... 2
Section 5. Adjourned Meeting; Notice .................................. 2
Section 6. Voting ..................................................... 3
Section 7. Waiver of Notice; Consent of Absent Shareholders ........... 3
Section 8. Shareholder Action by Written Consent Without
a Meeting .................................................. 3
Section 9. Record Date for Shareholder Notice, Voting and
Giving Consents ............................................ 4
Section 10. Proxies .................................................... 4
Section 11. Inspector of Election ...................................... 5
ARTICLE III Trustees ..................................................... 6
Section 1. Powers ..................................................... 6
Section 2. Number of Trustees ......................................... 6
Section 3. Composition of the Board of Trustees ....................... 6
Section 4. Vacancies .................................................. 6
Section 5. Place of Meetings and Meetings by Telephone ................ 6
Section 6. Regular Meetings ........................................... 6
Section 7. Special Meetings ........................................... 6
Section 8. Quorum ..................................................... 7
Section 9. Waiver of Notice ........................................... 7
Section 10. Adjournment ................................................ 7
Section 11. Notice of Adjournment ...................................... 7
Section 12. Action Without a Meeting ................................... 7
Section 13. Fees and Compensation of Trustees .......................... 7
Section 14. Independent Trustees ....................................... 8
Section 15. Delegation of Power to Other Trustees ...................... 8
ARTICLE IV Committees .................................................... 8
Section 1. Committees ................................................. 8
Section 2. Meetings and Action of Committees .......................... 9
ARTICLE V Officers ....................................................... 9
Section 1. Officers ................................................... 9
Section 2. Election of Officers ....................................... 9
Section 3. Subordinate Officers ....................................... 9
Section 4. Removal and Resignation of Officers ........................ 9
Section 5. Vacancies in Offices ....................................... 9
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Section 6. Chairman ................................................... 10
Section 7. President .................................................. 10
Section 8. Vice Presidents ............................................ 10
Section 9. Secretary .................................................. 10
Section 10. Treasurer .................................................. 10
ARTICLE VI Indemnification of Employees and Other Agents ................. 11
Section 1. Agents, Proceedings, Expenses .............................. 11
Section 2. Indemnification ............................................ 11
Section 3. Limitations, Settlements ................................... 11
Section 4. Insurance, Rights Not Exclusive ............................ 12
Section 5. Advance of Expenses ........................................ 12
Section 6. Fiduciaries of Employee Benefit Plan ....................... 12
ARTICLE VII Inspection of Records and Reports ............................ 13
Section 1. Inspection by Shareholders ................................. 13
Section 2. Inspection by Trustees ..................................... 13
Section 3. Financial Statements ....................................... 13
ARTICLE VIII General Matters ............................................. 13
Section 1. Checks, Drafts, Evidence of Indebtedness ................... 13
Section 2. Contracts and Instruments; How Executed .................... 13
Section 3. Fiscal Year ................................................ 13
Section 4. Seal ....................................................... 14
ARTICLE IX Amendments .................................................... 14
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BY-LAWS
OF
THE WILLAMETTE FUNDS
A Delaware Business Trust
INTRODUCTION
A. Declaration of Trust. These By-Laws shall be subject to the Declaration
of Trust, as from time to time in effect (the "Declaration of Trust"), of The
Willamette Funds, a Delaware business trust (the "Trust"). In the event of any
inconsistency between the terms hereof and the terms of the Declaration of
Trust, the terms of the Declaration of Trust shall control.
B. Definitions. Capitalized terms used herein and not herein defined are
used as defined in the Declaration of Trust.
ARTICLE I
Offices
Section 1. Principal Office. The Trustees shall fix and, from time to
time, may change the location of the principal executive office of the Trust at
any place within or outside the State of Delaware.
Section 2. Delaware Office. The Trustees shall establish a registered
office in the State of Delaware and shall appoint as the Trust's registered
agent for service of process in the State of Delaware an individual who is a
resident of the State of Delaware or a Delaware corporation or a corporation
authorized to transact business in the State of Delaware; in each case the
business office of such registered agent for service of process shall be
identical with the registered Delaware office of the Trust.
Section 3. Other Offices. The Trustees may at any time establish branch or
subordinate offices at any place or places within or outside the State of
Delaware where the Trust intends to do business.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meetings. Meetings of Shareholders shall be held at
any place designated by the Trustees. In the absence of any such designation,
Shareholders' meetings shall be held at the principal executive office of the
Trust.
Section 2. Call of Meetings. There shall be no annual Shareholders'
meetings. Special meetings of the Shareholders may be called at any time by the
Trustees or by the President for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided or
provided in the Declaration of Trust or upon any other matter as to which such
vote or authority is deemed by the Trustees or the President to be necessary or
desirable. Meetings of the Shareholders may be called for any purpose deemed
necessary or desirable upon the written request of the Shareholders holding at
least ten percent (10%) of the outstanding Shares of the Trust entitled to vote.
To the extent required by the Investment Company Act of 1940, as amended ("1940
Act"), meetings of the Shareholders for the purpose
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of voting on the removal of any Trustee shall be called promptly by the Trustees
upon the written request of Shareholders holding at least ten percent (10%) of
the outstanding Shares of the Trust entitled to vote.
Section 3. Notice of Meetings of Shareholders. All notices of meetings of
Shareholders shall be sent or otherwise given to Shareholders in accordance with
Section 4 of this Article II not less than ten (10) nor more than ninety (90)
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.
Section 4. Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of Shareholders shall be (i) given either by hand delivery, first-class
mail, telegraphic or other written communication, charges prepaid, and (ii)
addressed to the Shareholder at the address of that Shareholder appearing on the
books of the Trust or its transfer agent or given by the Shareholder to the
Trust for the purpose of notice. If no such address appears on the Trust's books
or is not given to the Trust, notice shall be deemed to have been given if sent
to that Shareholder by first-class mail or telegraphic or other written
communication to the Trust's principal executive office, or if published at
least once in a newspaper of general circulation in the county where that office
is located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication or, where notice is given by publication, on the date of
publication.
If any notice addressed to a Shareholder at the address of that
Shareholder appearing on the books of the Trust is returned to the Trust by the
United States Postal Service marked to indicate that the Postal Service is
unable to deliver the notice to the Shareholder at that address, all future
notices or reports shall be deemed to have been duly given without further
mailing if such future notices or reports shall be kept available to the
Shareholder, upon written demand of the Shareholder, at the principal executive
office of the Trust for a period of one year from the date of the giving of the
notice.
An affidavit of the mailing or other means of giving any notice of any
meeting of Shareholders shall be filed and maintained in the minute book of the
Trust.
Section 5. Adjourned Meeting; Notice. Any meeting of Shareholders, whether
or not a quorum is present, may be adjourned from time to time by the vote of
the majority of the Shares represented at that meeting, either in person or by
proxy.
When any meeting of Shareholders is adjourned to another time or place,
notice need not be given of the adjourned meeting at which the adjournment is
taken, unless a new record date of the adjourned meeting is fixed or unless the
adjournment is for more than sixty (60) days from the date set for the original
meeting, in which case the Trustees shall set a new record date. Notice of any
such adjourned meeting 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, the Trust may transact any
business which 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 of the Trust, as in effect at such time. The Shareholders'
vote may be by voice vote or by ballot, provided, however, that any election for
Trustees must be by ballot if demanded by any Shareholder before the voting has
begun. On any matter other than election of Trustees, any Shareholder may vote
part of the Shares in favor of the proposal and refrain from voting the
remaining Shares or vote them against the proposal, but if the Shareholder fails
to specify the number of Shares which the Shareholder is voting affirmatively,
it will be conclusively presumed that the Shareholder's approving vote is with
respect to the total Shares that such Shareholder is entitled to vote on such
proposal.
Section 7. Waiver of Notice; Consent of Absent Shareholders. The
transaction of business and any actions taken at a meeting of Shareholders,
however called and noticed and wherever held, shall be as valid as though taken
at a meeting duly held after regular call and notice provided a
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quorum is present either in person or by proxy at the meeting of Shareholders
and if either before or after the meeting, each Shareholder entitled to vote who
was not present in person or by proxy at the meeting of the Shareholders signs a
written waiver of notice or a consent to a holding of the meeting or an approval
of the minutes. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any meeting of Shareholders.
Attendance by a Shareholder at a meeting of Shareholders shall also
constitute a waiver of notice of that meeting, except if the Shareholder objects
at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened and except that attendance at a
meeting of Shareholders is not a waiver of any right to object to the
consideration of matters not included in the notice of the meeting of
Shareholders if that objection is expressly made at the beginning of the
meeting.
Section 8. Shareholder Action by Written Consent Without a Meeting. Except
as provided in the Declaration of Trust, any action that may be taken at any
meeting of Shareholders may be taken without a meeting and without prior notice
if a consent in writing setting forth the action to be taken is signed by the
holders of outstanding Shares having not less than the minimum number of votes
that would be necessary to authorize or take that action at a meeting at which
all Shares entitled to vote on that action were present and voted provided,
however, that the Shareholders receive any necessary Information Statement or
other necessary documentation in conformity with the requirements of the
Securities Exchange Act of 1934, as amended, or the rules or regulations
thereunder. All such consents shall be filed with the Secretary of the Trust and
shall be maintained in the Trust's records. Any Shareholder giving a written
consent or the Shareholder's proxy holders or a transferee of the Shares or a
personal representative of the Shareholder or their respective proxy holders may
revoke the Shareholder's written consent by a writing received by the Secretary
of the Trust before written consents of the number of Shares required to
authorize the proposed action have been filed with the Secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the Secretary shall give prompt
notice of the action approved by the Shareholders without a meeting. This notice
shall be given in the manner specified in Section 4 of this Article II.
Section 9. Record Date for Shareholder Notice, Voting and Giving Consents.
(a) For purposes of determining the Shareholders entitled to vote or act
at any meeting or adjournment thereof, the Trustees may fix in advance a record
date which shall not be more than ninety (90) days nor less than ten (10) days
before the date of any such meeting. Without fixing a record date for a meeting,
the Trustees may for voting and notice purposes close the register or transfer
books for one or more Series (or Classes) for all or any part of the period
between the earliest date on which a record date for such meeting could be set
in accordance herewith and the date of such meeting.
If the Trustees do not so fix a record date or close the register or
transfer books of the affected Series or Classes, the record date for
determining Shareholders entitled to notice of or to vote at a meeting of
Shareholders shall be the close of business on the business day next preceding
the day on which notice is given or if notice is waived, at the close of
business on the business day next preceding the day on which the meeting is
held.
(b) The record date for determining Shareholders entitled to give consent
to action in writing without a meeting, (a) when no prior action of the Trustees
has been taken, shall be the day on which the first written consent is given, or
(b) when prior action of the Trustees has been taken, shall be (i) such date as
determined for that purpose by the Trustees, which record date shall not precede
the date upon which the resolution fixing it is adopted by the Trustees and
shall not be more than twenty (20) days after the date of such resolution, or
(ii) if no record date is fixed by the Trustees, the record date shall be the
close of business on the day on which the Trustees adopt the resolution relating
to that action. Nothing in this Section shall be construed as precluding the
Trustees from setting different record dates for different Series
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or Classes. Only Shareholders of record on the record date as herein determined
shall have any right to vote or to act at any meeting or give consent to any
action relating to such record date, notwithstanding any transfer of Shares on
the books of the Trust after such record date.
Section 10. Proxies. Subject to the provisions of the Declaration of
Trust, every Person entitled to vote for Trustees or on any other matter shall
have the right to do so either in person or by proxy, provided that either (i)
an instrument authorizing such a proxy to act is executed by the Shareholder in
writing and dated not more than eleven (11) months before the meeting, unless
the instrument specifically provides for a longer period or (ii) the Trustees
adopt an electronic, telephonic, computerized or other alternative to the
execution of a written instrument authorizing the proxy to act, and such
authorization is received not more than eleven (11) months before the meeting. A
proxy shall be deemed executed by a Shareholder 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 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, or (b) by a subsequent
proxy executed by such Person, or (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. 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 the two or more Persons.
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.
The delivery of a proxy on behalf of a shareholder consistent with
telephonic or electronically transmitted instructions obtained pursuant to
procedures of the Trust reasonably designed to verify that such instructions
have been authorized by such shareholder, shall constitute execution and
delivery of such proxy by or on behalf of such shareholder.
Section 11. Inspector of Election. Before any meeting of Shareholders, the
Trustees may appoint any person other than a nominee for office to act as
inspector of election at the meeting or its adjournment. If no inspector of
election is so appointed, the Chairman of the meeting may appoint an inspector
of election at the meeting. If any person appointed as inspector fails to appear
or fails or refuses to act, the Chairman of the meeting may appoint a person to
fill the vacancy.
This 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, ballots or consents;
(c) Hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
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(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. Powers. Subject to the applicable provisions of the 1940 Act,
the Declaration of Trust and these By-Laws relating to action required to be
approved by the Shareholders, the business and affairs of the Trust shall be
managed and all powers shall be exercised by or under the direction of the
Trustees.
Section 2. Number of Trustees. The exact number of Trustees within the
limits specified in the Declaration of Trust shall be fixed from time to time by
a resolution of the Trustees.
Section 3. Composition of the Board of Trustees. To the extent required by
applicable law, the Board of Trustees shall be composed of a majority of
Trustees who are not Interested Persons of the Trust, and those Trustees shall
select and nominate any other Trustees who are not Interested Persons of the
Trust, provided that any investment adviser to the Trust may suggest candidates,
if such Trustees invite such suggestions, and provide administrative assistance
in the selection and nomination process.
Section 4. Vacancies. Vacancies in the authorized number of Trustees may
be filled as provided in the Declaration of Trust.
Section 5. Place of Meetings and Meetings by Telephone. All meetings of
the Trustees may be held at any place that has been selected from time to time
by the Trustees. In the absence of such a selection, regular meetings shall be
held at the principal executive office of the Trust. Subject to any applicable
requirements of the 1940 Act, 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 the meeting.
Section 6. Regular Meetings. Regular meetings of the Trustees shall be
held without call at such time as shall from time to time be fixed by the
Trustees. Such regular meetings may be held without notice.
Section 7. Special Meetings. Special meetings of the Trustees for any
purpose or purposes may be called at any time by the President or any Vice
President or the Secretary or any two (2) Trustees.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each Trustee or sent by first-class mail, by
telegram or telecopy (or similar electronic means) or by nationally recognized
overnight courier, charges prepaid, addressed to each Trustee at that Trustee's
address as it is shown on the records of the Trust. If the notice is mailed, it
shall be deposited in the United States mail at least seven (7) calendar days
before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or by telegram, telecopy (or similar electronic
means), or overnight courier, it shall be given at least forty-eight (48) hours
before the time of the holding of the meeting. Any oral notice given personally
or by telephone must be communicated only to the Trustee. The notice need not
specify the purpose of the meeting or the place of the meeting, if the meeting
is to be held at the principal executive office of the Trust. Notice of a
meeting need not be given to any Trustee if a written waiver of notice, executed
by such Trustee before or after the meeting, is filed with the records of the
meeting, or to any Trustee who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such Trustee.
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Section 8. Quorum. One third (1/3) of the authorized number of Trustees
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 10 of this Article III. Every act or decision done or made
by a majority of the Trustees present at a meeting duly held at which a quorum
is present shall be regarded as the act of the Trustees, subject to the
provisions of the Declaration of Trust. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
Trustees if any action taken is approved by at least a majority of the required
quorum for that meeting.
Section 9. Waiver of Notice. Notice of any meeting need not be given to
any Trustee who either before or after the meeting signs a written waiver of
notice, a consent to holding the meeting, or an approval of the minutes. The
waiver of notice or consent need not specify the purpose of the meeting. All
such waivers, consents, and approvals shall be filed with the records of the
Trust or made a part of the minutes of the meeting. Notice of a meeting shall
also be deemed given to any Trustee who attends the meeting without protesting,
prior to or at its commencement, the lack of notice to that Trustee.
Section 10. Adjournment. A majority of the Trustees present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 11. Notice of Adjournment. Notice of the time and place of holding
an adjourned meeting need not be given unless the meeting is adjourned for more
than forty-eight (48) hours, in which case notice of the time and place shall be
given before the time of the adjourned meeting in the manner specified in
Section 7 of this Article III to the Trustees who were present at the time of
the adjournment.
Section 12. Action Without a Meeting. Unless the 1940 Act requires that a
particular action be taken only at a meeting at which the Trustees are present
in person, any action to be taken by the Trustees at a meeting may be taken
without such meeting by the written consent of a majority of the Trustees then
in office. Any such written consent may be executed and given by telecopy or
similar electronic means. Such written consents shall be filed with the minutes
of the proceedings of the Trustees. If any action is so taken by the Trustees by
the written consent of less than all of the Trustees, prompt notice of the
taking of such action shall be furnished to each Trustee who did not execute
such written consent, provided that the effectiveness of such action shall not
be impaired by any delay or failure to furnish such notice.
Section 13. Fees and Compensation of Trustees. Trustees and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Trustees. This Section 13 of Article III shall not be construed to preclude any
Trustee from serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those services.
Section 14. Independent Trustees. In accordance with Section 3801(h) of
the Delaware Act, a Trustee is an independent Trustee if the Trustee is not an
Interested Person of the Trust; provided that the receipt of compensation for
service as an independent Trustee of the Trust and also for service as an
independent Trustee of one or more other investment companies managed by a
single investment adviser (or an affiliated person, as defined in Section
2(a)(3) of the 1940 Act, of such investment adviser) shall not affect the status
of the Trustee as an independent Trustee under the Delaware Act. An independent
Trustee shall be deemed to be independent and disinterested for all purposes.
Section 15. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his or her power for a period not exceeding one (1)
month at any one time to any other Trustee. Except where applicable law may
require a Trustee to be present in person, a Trustee represented by another
Trustee, pursuant to such power of attorney, shall be deemed to be present for
purpose of establishing a quorum and satisfying the required majority vote.
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ARTICLE IV
Committees
Section 1. Committees. The Trustees may by resolution designate one or
more committees, each consisting of two (2) or more Trustees or other persons,
to serve at the pleasure of the Trustees. The Trustees 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 for by
resolution of the Trustees, shall have the authority of the Trustees, except
with respect to:
(a) the approval of any action which under applicable law requires
approval by a majority of the entire authorized number of Trustees
or certain Trustees;
(b) the filling of vacancies of Trustees;
(c) the fixing of compensation of the Trustees for services generally or
as a member of any committee;
(d) the amendment or termination of the Declaration of Trust or any
Series or Class or the amendment of the By-Laws or the adoption of
new By-Laws;
(e) the amendment or repeal of any resolution of the Trustees which by
its express terms is not so amendable or repealable;
(f) a distribution to the Shareholders of the Trust, except at a rate or
in a periodic amount or within a designated range determined by the
Trustees; or
(g) the appointment of any other committees of the Trustees or the
members of such new committees.
Section 2. Meetings and Action of Committees. Meetings and action of
committees shall be governed by, held and taken in accordance with the
provisions of 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
Trustees generally or by resolution of the Trustees, except that the time of
regular meetings of committees may be determined either by resolution of the
Trustees or by resolution of the committee. Special meetings of committees may
also be called by resolution of the Trustees. Alternate members shall be given
notice of meetings of committees and shall have the right to attend all meetings
of committees. The Trustees may adopt rules for the governance of any committee
not inconsistent with the provisions of 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
Trustees, a Chairman of the Board (Chairman), one or more Vice Presidents, one
or more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 3 of
this Article V. Any number of offices may be held by the same person. The
Chairman, if there be one, shall be a Trustee and may be, but need not be, a
Shareholder; and any other officer may be, but need not be, a Trustee or
Shareholder.
Section 2. Election of Officers. The officers of the Trust, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article V, shall be chosen by the Trustees, and each shall
serve at the pleasure of the Trustees, subject to the rights, if any, of an
officer under any contract of employment.
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Section 3. Subordinate Officers. The Trustees may appoint and may empower
the President to appoint such other officers as the business of the Trust may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in these By-Laws or as the Trustees may from
time to time determine.
Section 4. Removal and Resignation of Officers. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Trustees at any regular or special meeting
of the Trustees or by the principal executive officer or by such other officer
upon whom such power of removal may be conferred by the Trustees.
Any officer may resign at any time by giving written notice to the Trust.
Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice; and unless otherwise specified in
that notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of the
Trust under any contract to which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office. The
President may make temporary appointments to a vacant office pending action by
the Trustees.
Section 6. Chairman. The Chairman, if such an officer is elected, shall be
a member of the Board of Trustees and ex-officio member of all committees except
the Audit and Nominating Committees. If present, he or she shall preside at
meetings of the Trustees, and shall perform such other duties as may be assigned
to him or her from time to time by the Board of Trustees or as prescribed by the
Declaration of Trust or these By-Laws.
Section 7. President. Subject to such supervisory powers, if any, as may
be given by the Trustees to the Chairman, if there be such an officer, the
President shall be the chief executive officer of the Trust and shall, subject
to the control of the Trustees and the Chairman, have general supervision,
direction and control of the business and the officers of the Trust. He or she
shall preside at all meetings of the Shareholders and, in the absence of the
Chairman, or if there be none, at all meetings of the Trustees. He or she shall
perform all acts incident to the position of President, authorized by law and
shall have the general powers and duties of a president of a corporation and
shall have such other powers and duties as may be prescribed by the Trustees,
the Declaration of Trust or these By-Laws.
Section 8. Vice Presidents. In the absence or disability of the President,
any Vice President, unless there is an Executive Vice President, shall perform
all the duties of the President and when so acting shall have all powers of and
be subject to all the restrictions upon the President. The Executive Vice
President or Vice Presidents, whichever the case may be, shall have such other
powers and shall perform such other duties as from time to time may be
prescribed for them respectively by the Trustees or the President or the
Chairman or by these By-Laws.
Section 9. Secretary. The Secretary shall keep or cause to be kept at the
principal executive office of the Trust, or such other place as the Trustees may
direct, a book of minutes of all meetings and actions of Trustees, committees of
Trustees and Shareholders with the time and place of holding, whether regular or
special, and if special, how authorized, the notice given, the names of those
present at Trustees' meetings or committee meetings, the number of Shares
present or represented at meetings of Shareholders and the proceedings of the
meetings.
The Secretary shall keep or cause to be kept at the principal executive
office of the Trust or at the office of the Trust's transfer agent or registrar,
a share register or a duplicate share register showing the names of all
Shareholders and their addresses, the number and classes of Shares held by each,
the number
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and date of certificates issued for the same and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give or cause to be given notice of all meetings of
the Shareholders and of the Trustees (or committees thereof) required to be
given by these By-Laws or by applicable law and shall have such other powers and
perform such other duties as may be prescribed by the Trustees or by these
By-Laws.
Section 10. Treasurer. The Treasurer shall be the chief financial officer
and chief accounting officer of the Trust and shall keep and maintain or cause
to be kept and maintained adequate and correct books and records of accounts of
the properties and business transactions of the Trust and each Series or Class
thereof, including accounts of the assets, liabilities, receipts, disbursements,
gains, losses, capital and retained earnings of all Series or Classes thereof.
The books of account shall at all reasonable times be open to inspection by any
Trustee.
The Treasurer shall deposit all monies and other valuables in the name and
to the credit of the Trust with such depositaries as may be designated by the
Board of Trustees. He or she shall disburse the funds of the Trust as may be
ordered by the Trustees, shall render to the President and Trustees, whenever
they request it, an account of all of his or her transactions as chief financial
officer and of the financial condition of the Trust and shall have other powers
and perform such other duties as may be prescribed by the Trustees or these
By-Laws.
ARTICLE VI
Indemnification of Employees and Other Agents
Section 1. Agents, Proceedings, Expenses. For the purpose of this Article,
"agent" means any Person who is or was an employee or other agent of the Trust
or is or was serving at the request of the Trust as a trustee, director,
officer, employee or agent of another organization in which the Trust has any
interest as a shareholder, creditor or otherwise (other than a trustee or
officer of the Trust for which indemnification is provided in the Trust's
Declaration of Trust); "proceeding" means any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative (including appeals); and "expenses" includes, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and all other liabilities whatsoever.
Section 2. Indemnification. Subject to the exceptions and limitations
contained in Section 3 of this Article VI, every agent shall be indemnified by
the Trust to the fullest extent permitted by law against all liabilities and
against all expenses reasonably incurred or paid by him or her in connection
with any proceeding in which he or she becomes involved as a party or otherwise
by virtue of his or her being or having been an agent.
Section 3. Limitations, Settlements. No indemnification shall be provided
hereunder to an agent:
(a) who shall have been adjudicated, by the court or other body before
which the proceeding was brought, to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his or her office (collectively, "disabling conduct"); or
(b) with respect to any proceeding disposed of by settlement without an
adjudication by the court or other body before which the proceeding
was brought that such agent was liable to the Trust or its
Shareholders by reason of
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disabling conduct, unless there has been a determination that such
agent did not engage in disabling conduct:
(i) by the court or other body before which the proceeding was
brought;
(ii) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the
proceeding based upon a review of readily available facts (as
opposed to a full trial-type inquiry); or
(iii) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial
type inquiry);
provided, however, that indemnification shall be provided hereunder to an agent
with respect to any proceeding in the event of (1) a final decision on the
merits by the court or other body before which the proceeding was brought that
the agent was not liable by reason of disabling conduct, or (2) the dismissal of
the proceeding by the court or other body before which it was brought for
insufficiency of evidence of any disabling conduct with which such agent has
been charged.
Section 4. Insurance, Rights Not Exclusive. The rights of indemnification
herein provided (i) may be insured against by policies maintained by the Trust
on behalf of any agent, (ii) shall be severable, (iii) shall not be exclusive of
or affect any other rights to which any agent may now or hereafter be entitled
and (iv) shall inure to the benefit of the agent's heirs, executors and
administrators.
Section 5. Advance of Expenses. Expenses incurred by an agent in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding may be paid by the Trust from time to time prior to
final disposition thereof upon receipt of an undertaking by, or on behalf of,
such agent that such amount will be paid over by him or her to the Trust unless
it is ultimately determined that he or she is entitled to indemnification under
this Article VI; provided, however, that (a) such agent shall have provided
appropriate security for such undertaking, (b) the Trust is insured against
losses arising out of any such advance payments, or (c) either a majority of the
Trustees who are neither Interested Persons of the Trust nor parties to the
proceeding, or independent legal counsel in a written opinion, shall have
determined, based upon a review of the readily available facts (as opposed to a
trial-type inquiry or full investigation), that there is reason to believe that
such agent will be found entitled to indemnification under this Article VI.
Section 6. Fiduciaries of Employee Benefit Plan. This Article does not
apply to any proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in that person's capacity as such, even
though that person may also be an agent of this Trust as defined in Section 1 of
this Article. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or other fiduciary
may be entitled by contract or otherwise, which shall be enforceable to the
extent permitted by applicable law other than this Article VI.
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ARTICLE VII
Inspection of Records and Reports
Section 1. Inspection by Shareholders. The Trustees shall from time to
time determine whether and to what extent, and at what times and places, and
under what conditions and regulations the accounts and books of the Trust or any
of them shall be open to the inspection of the Shareholders; and no Shareholder
shall have any right to inspect any account or book or document of the Trust
except as conferred by law or otherwise by the Trustees or by resolution of the
Shareholders.
Section 2. Inspection by Trustees. Every Trustee shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the Trust. This inspection by a
Trustee may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
Section 3. Financial Statements. A copy of any financial statements and
any income statement of the Trust for each semi-annual period of each fiscal
year and accompanying balance sheet of the Trust as of the end of each such
period that has been prepared by the Trust shall be kept on file in the
principal executive office of the Trust for at least twelve (12) months and each
such statement shall be exhibited at all reasonable times to any Shareholder
demanding an examination of any such statement or a copy shall be mailed to any
such Shareholder.
The semi-annual income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the Trust or the certificate of an authorized officer of
the Trust that the financial statements were prepared without audit from the
books and records of the Trust.
ARTICLE VIII
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 in
such manner and by such person or persons as shall be designated from time to
time in accordance with the resolution of the Board of Trustees.
Section 2. Contracts and Instruments; How Executed. The Trustees, except
as otherwise provided in these By-Laws, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Trust and this authority may be general or confined
to specific instances; and unless so authorized or ratified by the Trustees or
within the agency power of an officer, no officer, agent, or employee shall have
any power or authority to bind the Trust by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
Section 3. Fiscal Year. The fiscal year of the Trust, or any Series
thereof, shall be fixed and refixed or changed from time to time by the
Trustees. Unless otherwise determined by the Trustees, the fiscal year of the
Trust shall be the taxable year of each Series of the Trust.
Section 4. Seal. The seal of the Trust shall consist of a flat-faced dye
with the name of the Trust cut or engraved thereon. However, unless otherwise
required by the Trustees, the seal shall not be necessary to be placed on, and
its absence shall not impair the validity of, any document, instrument or other
paper executed and delivered by or on behalf of the Trust.
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ARTICLE IX
Amendments
Except as otherwise provided by applicable law or by the Declaration of
Trust, these By-Laws may be restated, amended, supplemented or repealed by a
majority vote of the Trustees, provided that no restatement, amendment,
supplement or repeal hereof shall limit the rights to indemnification or
insurance provided in Article VI hereof with respect to any acts or omissions of
agents (as defined in Article VI) of the Trust prior to such amendment.
