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Exhibit 23(b)
BYLAWS
OF
MARKET STREET FUND
A DELAWARE BUSINESS TRUST
Principal Place of Business:
103 Bellevue Parkway
Wilmington, Delaware 19809
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TABLE OF CONTENTS
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ARTICLE I. NAME AND DEFINITIONS ........................................................................................... 1
Section 1.1 Name ............................................................................................... 1
Section 1.2 Definitions ........................................................................................ 1
ARTICLE II. MEETINGS OF SHAREHOLDERS ...................................................................................... 2
Section 2.1 Place of Meetings .................................................................................. 2
Section 2.2 Annual Meeting ..................................................................................... 2
Section 2.3 Special Meetings ................................................................................... 2
Section 2.4 Notice and Purpose ................................................................................. 2
Section 2.5 Record Date ........................................................................................ 3
Section 2.6 Quorum and Required Vote ........................................................................... 3
Section 2.7 Voting ............................................................................................. 3
Section 2.8 Written Consent .................................................................................... 4
Section 2.9 The Chairman of the Board and the Secretary ........................................................ 4
Section 2.10 Order of Business .................................................................................. 4
Section 2.11 Conduct of Meetings ................................................................................ 4
ARTICLE III. TRUSTEES ..................................................................................................... 4
Section 3.1 General Powers ..................................................................................... 4
Section 3.2 Delegation ......................................................................................... 5
Section 3.3 Number ............................................................................................. 5
Section 3.4 Election, Resignations, Term of Office, and Vacancies .............................................. 5
Section 3.5 Meetings ........................................................................................... 5
Section 3.6 Chairman of the Board .............................................................................. 6
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Section 3.7 Quorum and Manner of Acting ........................................................................ 6
Section 3.8 Removal of Trustees ................................................................................ 6
Section 3.9 Informal Action by Trustees ........................................................................ 6
Section 3.10 Compensation of Trustees ........................................................................... 6
Section 3.11 Selection of Independent Legal Counsel ............................................................. 7
Section 3.12 Independent Trustees ............................................................................... 7
ARTICLE IV. OFFICERS, AGENTS, AND EMPLOYEES ............................................................................... 7
Section 4.1 Number ............................................................................................. 7
Section 4.2 Selection .......................................................................................... 7
Section 4.3 Selection of Other Officers and Agents ............................................................. 7
Section 4.4 Salaries ........................................................................................... 7
Section 4.5 Removal ............................................................................................ 8
Section 4.6 President .......................................................................................... 8
Section 4.7 The Vice Presidents ................................................................................ 8
Section 4.8 The Secretary and Assistant Secretaries ............................................................ 8
Section 4.9 The Treasurer and Assistant Treasurers ............................................................. 9
Section 4.10 Bonding ............................................................................................ 10
ARTICLE V. TRANSACTIONS WITH RELATED PARTIES .............................................................................. 10
ARTICLE VI. INDEMNIFICATION ............................................................................................... 11
Section 6.1 Non-Derivative Actions ............................................................................. 11
Section 6.2 Derivative Actions ................................................................................. 11
Section 6.3 Required Indemnification ........................................................................... 11
Section 6.4 Trustees' Standards of Conduct ..................................................................... 11
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Section 6.5 Determination ...................................................................................... 12
Section 6.6 Advance Payment .................................................................................... 12
Section 6.7 Shareholder Notification ........................................................................... 12
Section 6.8 Non-Exclusive Right ................................................................................ 12
Section 6.9 Insurance .......................................................................................... 13
Section 6.10 General ............................................................................................ 13
ARTICLE VII. WAIVERS OF NOTICE ............................................................................................ 13
ARTICLE VIII. SHARES OF BENEFICIAL INTEREST ............................................................................... 13
Section 8.1 Certificates ....................................................................................... 13
Section 8.2 Recording and Transfer Without Certificates ........................................................ 14
Section 8.3 Share Ledger and Record of Shareholders ............................................................ 14
Section 8.4 Shareholder Open Accounts .......................................................................... 14
Section 8.5 Transfer of Shares ................................................................................. 14
Section 8.6 Issuance and Liquidation of Shares ................................................................. 14
ARTICLE IX. CUSTODIAN ..................................................................................................... 14
Section 9.1 Employment of Custodian ............................................................................ 14
ARTICLE IX. MISCELLANEOUS ................................................................................................. 15
Section 10.1 Fiscal Year ........................................................................................ 15
Section 10.2 Delaware Office .................................................................................... 15
Section 10.3 Voting Shares of Other Trusts ...................................................................... 15
Section 10.4 Provisions in Conflict with Declaration of Trust ................................................... 15
Section 10.5 Inspection of Books ................................................................................ 15
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ARTICLE X. AMENDMENT ...................................................................................................... 16
Section 11.1 By Shareholders .................................................................................... 16
Section 11.2 By Trustees ........................................................................................ 16
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BYLAWS
OF
MARKET STREET FUND
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1.1 NAME. This trust shall be known as "Market Street Fund" and
the Trustees shall conduct the business of the Trust under that name or any
other name as the Board of Trustees may from time to time determine.
SECTION 1.2 DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust established by
the Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the persons who have signed the Declaration
of Trust, so long as they continue in office in accordance with
the terms hereof, and all other persons who may from time to
time be duly elected or appointed to serve on the Board of
Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such person
or persons in their capacity as trustees hereunder;
(c) "Independent Trustees" refers to the Trustees who are not
interested persons of the Trust, where "interested person" has
the meaning given it in Section 2(a)(19) of the Investment
Company Act of 1940;
(d) "Shares" means the Shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to
time and includes fractional and whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time
to time. References herein to specific sections of the 1940 Act
shall be deemed to include such Rules and Regulations as are
applicable to such sections as determined by the Board of
Trustees or their designees;
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(g) "Declaration of Trust" shall mean the Declaration of Trust, as
amended or restated from time to time;
(h) "Bylaws" shall mean these Bylaws of the Trust, as amended from
time to time;
(i) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article
III.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETINGS. Meetings of Shareholders shall be held at
any place within the United States as shall be determined from time to time by
the Board of Trustees (the "Board") and stated in the notice of said meeting.
SECTION 2.2 ANNUAL MEETING. Unless otherwise required by law, an annual
meeting of Shareholders will be held at the discretion of the Board. In the
event an annual meeting is held, it shall be held at such date and time as the
Board shall determine and as stated in the Notice of said meeting. Any business
of the Trust may be transacted at the annual meeting without being specially
designated in the Notice, except such business as is specifically required by
law to be stated in the Notice.
SECTION 2.3 SPECIAL MEETINGS. Special meetings of the Shareholders may
be called by the Board or by the President or the Secretary. Special meetings of
Shareholders held for the specific purposes identified in the Declaration of
Trust shall be called by the Secretary upon the written request of the
Shareholders of Shares entitled to cast not less than twenty-five percent (25%)
of the total combined net asset value of all Shares issued and outstanding and
entitled to vote at such meeting. Such request shall state the purpose or
purposes of such meeting and the matters proposed to be acted on thereat. The
Secretary shall inform such requesting Shareholders of the reasonable estimated
cost of preparing and mailing such notice of the meeting, and, upon payment to
the Trust of such costs, the Secretary shall give notice stating the purpose or
purposes of the meeting to all Shareholders entitled to notice of such meeting.
Business transacted at any special meeting shall be limited to the purposes
stated in the notice. No special meeting need be called to consider any matter
that is substantially the same as a matter voted upon at any meeting of the
Shareholders held during the preceding twelve (12) months unless a majority of
the total combined net asset value of all Shares issued and outstanding and
entitled to vote request such a meeting.
SECTION 2.4 NOTICE AND PURPOSE. Not less than ten (10) nor more than
ninety (90) days before the date of every Shareholders' meeting, the Secretary
shall give to each Shareholder
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entitled to vote at such meeting and to each Shareholder entitled to notice,
written or printed notice stating the time and place of the meeting and the
purpose or purposes for which the meeting is called. Such notice shall be given
to each Shareholder by mail or by presenting it to him or her personally or by
leaving it at his or her residence or usual place of business. If mailed, such
notice shall be deemed to be given when deposited in the United States mail
addressed to the Shareholder at his or her post office address as it appears on
the records of the Trust, with postage thereon prepaid. If notice is not given
as herein provided, a meeting shall still be a legal meeting for the transaction
of business if all Shareholders entitled to vote are present either in person or
by proxy, or if notice has been waived in writing by those not present.
SECTION 2.5 RECORD DATE. For the purpose of determining the Shareholders
who are entitled to notice of, or to vote or act at any meeting of Shareholders
or any adjournment thereof, the Board of Trustees may fix, in advance, a time,
which shall be not more than one hundred (100) days, and in case of a meeting of
Shareholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination of Shareholders is to be taken,
as the record date for determining the Shareholders having the right to notice
of and to vote at such meeting and any adjournment thereof, and in such case
only Shareholders of record on such record date shall have such right,
notwithstanding any transfer of Shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders who are entitled to
receive payment of any dividend or of any other distribution, the Board of
Trustees may fix a date, which shall be before the date for the payment of such
dividend or distribution, as the record date for determining the Shareholders
having the right to receive such dividend or distribution. Nothing in this
Section shall be construed as precluding the Board of Trustees from setting
different record dates for different Series.
SECTION 2.6 QUORUM AND REQUIRED VOTE. The Shareholders of forty percent
(40%) of the total combined net asset value of all Shares issued and outstanding
and entitled to vote, 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 required by law, these Bylaws or the Declaration
of Trust. When a quorum is present at any meeting, a majority of the total
combined net asset value of all Shares issued and outstanding and entitled to
vote represented thereat shall decide any question brought before such meeting
unless the question is one upon which, by express provision of law or of these
Bylaws or the Declaration of Trust, a different vote is required, in which case
such express provision shall control. Whether a quorum is present or not at any
meeting of the Shareholders, the Shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time (provided no adjournment shall be for more than nine (9) months)
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 2.7 VOTING. Any Shareholder of record as of the record date
determined pursuant to Section 2.5 herein shall be entitled to vote at any
meeting to the extent provided herein or pursuant to the Declaration of Trust,
as it may be amended from time to time, either in person or by proxy executed in
writing by him, her or it, or by his, her or its duly authorized
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attorney-in-fact. Shares of all Series and classes shall vote as a single group,
except where the separate vote of a particular Series or class is required by
the 1940 Act, the Delaware Business Trust Act ("DBTA"), or the Declaration of
Trust. No proxy shall be valid after eleven (11) months from the date of
execution, unless otherwise provided in the proxy. Proxies shall be delivered to
the Secretary of the Trust before or at the time of such meeting.
SECTION 2.8 WRITTEN CONSENT. Except as otherwise provided by law or the
Declaration of Trust, any action required or permitted to be taken at any annual
or special meeting of Shareholders may be taken without a meeting, if all the
Shareholders entitled to vote on the matter are provided with not less than
seven (7) days written notice thereof and written consent to the action is filed
with the records of the meetings of Shareholders by the holders of the number of
votes that would be required to approve the matter as provided in Section 2.6 of
this Article.
SECTION 2.9 THE CHAIRMAN OF THE BOARD AND THE SECRETARY. The Chairman of
the Board shall preside at and the Secretary shall keep the records of each
meeting of Shareholders, and in the absence of either individual, his or her
duties shall be performed by some person appointed at the meeting.
SECTION 2.10 ORDER OF BUSINESS. The business shall be transacted in such
order as the Chairman of the meeting shall determine.
SECTION 2.11 CONDUCT OF MEETINGS. At all meetings of the Shareholders,
all proxies shall be received and taken in charge of and all ballots shall be
received and canvassed by the Secretary of the meeting. All questions concerning
the qualification of voters, the validity of the proxies, and the acceptance or
rejection of votes shall be governed by the Delaware general corporate law,
unless an Inspector of Election shall have been appointed as follows, in which
event, such Inspector of Election shall decide all such questions. At any
meeting of Shareholders at which Trustees are to be elected, the Board prior
thereto may, or, if the Board has not so acted, the Chairman of the meeting may,
and upon the request of the holders of twenty-five percent (25%) of the total
combined net asset value of all Shares issued and outstanding and entitled to
vote at such meeting shall, appoint one or more Inspectors of Election who shall
first subscribe an oath or affirmation to execute faithfully the duties of
Inspectors at such election with strict impartiality and according to the best
of their ability, and shall after the election make a certificate of the result
of the vote taken. No candidate for the office of Trustee shall be appointed as
such Inspector. The Chairman of the meeting shall cause a vote by ballot to be
taken upon any election or matter.
ARTICLE III
TRUSTEES
SECTION 3.1 GENERAL POWERS. Pursuant to Article IV, Section 3 of the
Declaration of Trust, the business and affairs of the Trust shall be managed
under the direction of its Board, and
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subject to the restrictions imposed by the Declaration of Trust or these Bylaws
and the 1940 Act and the DBTA, the Board shall exercise all the powers of the
Trust.
SECTION 3.2 DELEGATION. The Board may elect from its members an
executive committee of not less than two (2) which may exercise all the powers
of the Board that may be delegated by the Board by the Declaration of Trust or
these Bylaws and the DBTA when the Board is not in session. The executive
committee may make rules for the holding and conduct of its meetings and keeping
the records thereof, and shall report all actions to the Board. The Board may
elect from its members other committees, such as an audit committee and a
nominating committee, or other committees, from time to time as it may desire.
The number composing such committees and the powers conferred upon them shall be
determined by the Board at its own discretion. The Board may rescind any action
of a committee, and abolish any committee at its own discretion.
SECTION 3.3 NUMBER. The Board shall consist, initially, of five (5)
Trustees, but the number of Trustees may be increased or decreased (provided
such decrease does not shorten the term of any incumbent Trustee) from time to
time by the Board by written instrument, or by resolution approved by the Board,
provided, that the number of Trustees shall not be inconsistent with the
provisions of the Declaration of Trust. A Trustee's ownership of a contract or
policy in which the Trust is the underlying investment does not disqualify a
Trustee from being independent.
SECTION 3.4 ELECTION, RESIGNATIONS, TERM OF OFFICE, AND VACANCIES. Until
the first meeting of Shareholders and any successor Trustees are duly elected
and qualified, the Board shall consist of the persons executing the Declaration
of Trust. Each Trustee shall hold office as provided in the Declaration of
Trust. Successor Trustees shall be elected at each annual meeting if annual
Shareholders meetings are held, or at any special meeting of Shareholders called
for the purpose of electing Trustees. Cumulative voting is not permitted. The
Independent Trustees shall be responsible for selecting and nominating the other
Independent Trustees. Trustees need not be residents of the State of Delaware or
Shareholders of the Trust. Any Trustee may resign his or her office at any time
as provided in the Declaration of Trust. The acceptance of such resignation,
unless required by the terms thereof, shall not be necessary to make the
resignations effective. Subject to compliance with the 1940 Act, any vacancies
occurring on the Board, whether by death, resignation, removal, an increase or
any other cause, may be filled by the affirmative vote of a majority of the
remaining Trustees then in office, regardless of their number, pursuant to
Section 1 of Article IV of the Declaration of Trust. Any Trustee elected to fill
a vacancy shall serve in accordance with the provisions of Article IV, Section 1
of the Declaration of Trust. If a special meeting of Shareholders is required to
fill a vacancy, the meeting shall be held within the period required under the
1940 Act or as may be permitted by the Securities and Exchange Commission.
SECTION 3.5 MEETINGS. Regular Board meetings may be held within or
outside of the State of Delaware, and at such times as the Board may from time
to time determine, and if so determined, notices thereof need not be given.
Special Board meetings may be held at any time or place whenever called by the
Chairman of the Board, the President or a majority of the
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Trustees, notice thereof being given by the Secretary, the Chairman of the
Board, the President, or the Trustees calling the meeting, to each Trustee.
Special Board meetings may be held upon verbal or written notice or without
formal notice provided all Trustees are present or those not present have waived
notice thereof. Except as required under the 1940 Act, or as otherwise herein
provided, neither the business to be transacted at, nor the purpose of, any
regular or special Board meeting need be specified in the notice or waiver of
notice of such meeting. Subject to any limitations of the 1940 Act or other
applicable law, members of the Board or a committee of the Board may participate
in a meeting by means of a conference telephone or similar communications
equipment provided, that all persons participating in the meeting can hear each
other at the same time. Participation in a meeting by these means shall
constitute presence at the meeting for any matter except as otherwise required
by the 1940 Act.
SECTION 3.6 CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
member of the Board, and shall be chosen annually by the Board. The Chairman of
the Board shall preside at Board meetings. He or she shall have such other
powers as are usually incident to the position of Chairman of the Board and
shall exercise such other specific powers as the Board may from time to time
assign him or her.
SECTION 3.7 QUORUM AND MANNER OF ACTING. A majority of the number of
Trustees then in office shall constitute a quorum for the transaction of
business, but a smaller number may adjourn from time to time until they can
secure the attendance of a quorum. The act of a majority of the Trustees present
at any meeting at which a quorum is present shall be the act of the Board,
except as otherwise expressly required under the provisions of the 1940 Act, or
where a different vote is required by the Declaration of Trust or these Bylaws,
the 1940 Act, or the DBTA. Any regular or special Board meeting may be adjourned
from time to time by majority vote of those present thereat, whether a quorum is
present or not.
SECTION 3.8 REMOVAL OF TRUSTEES. Any Trustee may be removed from office,
either for or without cause, at any meeting of Shareholders held for the purpose
of electing or removing Trustees by the affirmative vote of two-thirds of the
total combined net asset value of all Shares issued and outstanding and entitled
to vote. The notice calling this meeting shall give notice of the intention to
act upon this matter, and, if the notice so provides, the vacancy caused by this
removal may be filled at such meeting by vote the majority of the total combined
net asset value of all Shares issued and outstanding and entitled to vote for
the election of Trustees.
SECTION 3.9 INFORMAL ACTION BY TRUSTEES. Subject to the provisions of
the 1940 Act, any action permitted or required by the Declaration of Trust or
these Bylaws and applicable law to be taken at a Board meeting or at any
committee meeting may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by a majority of the members of the
Board or of such committee, as the case may be, and filed with the records of
the Trustees' meeting or of such committee. Such consent shall have the same
force and effect as a vote at a meeting, and may be stated as such in any
document or instrument.
SECTION 3.10 COMPENSATION OF TRUSTEES. The Board may authorize
reasonable compensation to Trustees for their services as Trustees and as
members of committees of the
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Board and may authorize the reimbursement of reasonable expenses incurred by
Trustees in connection with rendering those services.
SECTION 3.11 SELECTION OF INDEPENDENT LEGAL COUNSEL. The Board may
select independent legal counsel to assist it, or the Independent Trustees, in
the exercise of its powers and responsibilities. To qualify as independent legal
counsel, the independent legal counsel must meet any requirements expressly
required by the 1940 Act.
SECTION 3.12 INDEPENDENT TRUSTEES. The Board may implement evolving
legal concepts and best practices regarding investment company governance and
the role of the Independent Trustees by such measures as may be found to be
appropriate under all of the circumstances at the time, such as appointing an
audit committee and a nominating committee composed solely of Independent
Trustees, taking steps to help assure the continued independence of the
Independent Trustees and the effectiveness of the Board, encouraging the
Independent Trustees to invest in the Trust through ownership of variable
insurance products, coordinating with the meeting of the Independent Trustees in
executive session and the keeping of minutes of the meetings, and promoting the
continued education of the Independent Trustees as to their duties and powers.
ARTICLE IV
OFFICERS, AGENTS, AND EMPLOYEES
SECTION 4.1 NUMBER. The officers of the Trust shall be appointed by the
Board and shall be a President, a Vice President, a Secretary and a Treasurer.
The Board may also choose additional Vice Presidents, Assistant Vice Presidents,
Assistant Secretaries, or Assistant Treasurers.
SECTION 4.2 SELECTION. All officers shall serve at the pleasure of the
Board. Any two (2) or more offices may be held by the same person except the
President may only hold that office, but no officer shall execute, acknowledge,
or verify any instrument in more than one capacity if this instrument is
required by the Declaration of Trust or these Bylaws or the DBTA to be executed,
acknowledged, or verified by two or more officers.
SECTION 4.3 SELECTION OF OTHER OFFICERS AND AGENTS. The Board may
appoint such other officers and agents as the Board shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board. If
the Board so deems, the Board may delegate this power to appoint other officers
and agents to the President or any Trustee or Trustees.
SECTION 4.4 SALARIES. The salaries, if any, of all officers, employees
and agents of the Trust shall be fixed by the Board. If the Board so deems, the
Board may delegate this power to set salary levels of all officers and agents to
the President.
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SECTION 4.5 REMOVAL. Any officer, agent, or employee of the Trust may be
removed from office at any time with or without cause by a vote of the Board
pursuant to Section 3.7 of these Bylaws. If the Board so deems, the Board may
delegate this power to remove agents and employees under their control to the
President or any Trustee or Trustees. This removal shall be without prejudice to
such person's contractual rights, if any, but the appointment of any person or
an officer, agent, or employee of the Trust shall not of itself create contract
rights.
SECTION 4.6 PRESIDENT. The President shall be the chief executive and
operating officer of the Trust. Subject to the control of the Board, the
President shall assume general and active management of the business affairs,
policies, and property of the Trust and shall see that all orders and
resolutions of the Board are carried into effect. In the absence of the Chairman
of the Board, the President shall preside at all meetings of Shareholders and
the Board. The President, either alone or (if so required by the Declaration of
Trust or these Bylaws or the DBTA, or the Board) with the Secretary or any other
officer of the Trust so authorized by the Board, may grant, issue, or execute
any certificates of Shares of the Trust or any deeds, mortgages, bonds, powers
of attorney, proxies, agreements, contracts, or other instruments that the Board
has authorized for execution, except when the signing and execution thereof
shall be expressly delegated by the Board or these Bylaws to some other officer
or agent of the Trust. The President, in conjunction with the Secretary, may
duly authenticate the Trust's records or copies thereof for use as evidence in
any action or proceeding to which the Trust may be a party. In general, the
President shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board from time to time.
SECTION 4.7 THE VICE PRESIDENTS. The Vice President, or if there shall
be more than one, the Vice Presidents in the order determined by the Board,
shall be vested with all the powers and required to perform all the duties of
the President in his or her absence or disability or refusal to act, and when so
acting shall have all the powers of and be subject to all the restrictions upon
the President. Each Vice President shall perform such other duties and have such
other powers as the President or the Board may from time to time prescribe.
SECTION 4.8 THE SECRETARY AND ASSISTANT SECRETARIES. Except as may
otherwise be provided by the Board, the Secretary of the Trust shall have the
following powers and duties:
a. to keep the minutes of the meetings of Shareholders, of the
Board, and of any committee thereof and shall record all votes
and proceedings in one or more books provided for that purpose;
b. to see that all notices are duly given, in accordance with the
Declaration of Trust or these Bylaws and applicable law;
c. to be custodian of the trust records;
d. to keep or cause to be kept for the Trust the Share ledger
described in Section 8.3 of these Bylaws;
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e. to countersign any certificates for Shares of the Trust if the
Board has authorized such issuance;
f. to have general charge of, or be responsible for, the Share
transfer books of the Trust, except if the Board has placed
these books in the custody of a transfer agent pursuant to
Section 8.3, hereof;
g. to duly authenticate, in conjunction with the President, the
Trust's records or copies thereof to be used as evidence in any
action of proceedings to which the Trust may be a party; and
h. to perform all duties incidental to the office of Secretary and
such other duties as, from time to time, may be assigned to the
Secretary by the President or Board.
The Assistant Secretary, if any, or if there are more than one, the
Assistant Secretaries in the order determined by the Board, shall, in
the absence or refusal to act or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform
such other duties as, from time to time, may be assigned by the
President, the Secretary or the Board.
SECTION 4.9 THE TREASURER AND ASSISTANT TREASURERS. The Treasurer shall
be the Chief Financial Officer of the Trust and except, as may otherwise be
provided by the Board, shall:
a. have charge and custody of, and be responsible for, all the
funds and securities of the Trust, except those which the Trust
has placed in the custody of a bank or company pursuant to a
written agreement designating such bank or company as custodian
of the property of the Trust;
b. keep full and accurate accounts of the receipts and
disbursements in books belonging to the Trust;
c. cause all monies and other valuables to be deposited to the
credit of the Trust;
d. receive, and give receipts for, monies due and payable to the
Trust from any source whatsoever;
e. disburse the funds of the Trust and supervise the investment of
its funds as ordered or authorized by the Board, taking proper
vouchers therefor; and
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f. in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned to him or her by the President, or the Board.
The Assistant Treasurer, if any, or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board,
shall, in the absence or refusal to act or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as, from time to time, may be assigned by the
President, the Treasurer, or the Board.
SECTION 4.10 BONDING. The Board may require any officer, agent, or
employee of the Trust to give bond to the Trust for the faithful discharge of
his or her duties and for the protection of the Trust in such sum and with such
surety or sureties as the Board may deem available.
ARTICLE V
TRANSACTIONS WITH RELATED PARTIES
SECTION 5.1 To the extent permitted by the Declaration of Trust, the
DBTA, or the 1940 Act and by the provisions of this Article V, any Trustee,
officer or employee, individually, or any partnership of which any Trustee,
officer or employee may be a member, or any corporation or association of which
any Trustee, officer or employee may be an officer, director, trustee, employee
or Shareholder, may be a party to, or may have a pecuniary or other interest in,
any contract or transaction of the Trust, and in the absence of fraud no
contract or other transaction shall be thereby affected or invalidated;
provided, that in case a Trustee, or a partnership, corporation or association
of which a Trustee is a member, officer, director, trustee, employee or
Shareholder is so interested, such fact shall be disclosed or shall have been
known to the Board or a majority thereof; and any Trustee who is so interested
or who is also a director, officer, trustee, employee or Shareholder of such
other corporation or association, or a member of such partnership which is so
interested, may be counted in determining the existence of a quorum at any Board
meeting that shall authorize any such contract or transaction with like force
and effect as if he or she were not such director, officer, trustee, employee or
Shareholder of such corporation or association, or not so interested or a member
of a partnership so interested, or so interested individually.
SECTION 5.2 Nothing herein contained shall protect or purport to protect
any Trustee or officer of the Trust against any liability to the Trust or its
security holders to which he or she would otherwise be subject pursuant to the
Declaration of Trust.
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ARTICLE VI
INDEMNIFICATION
SECTION 6.1 NON-DERIVATIVE ACTIONS. The Trustees and beneficial owners
of shares shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, investment adviser or principal
underwriter of the Trust, nor shall any Trustee or beneficial owners of shares
be responsible or liable for the act or omission of any other Trustee or
beneficial owners of shares, and, subject to the provisions of these Bylaws, the
Trust out of its assets may indemnify and hold harmless each and every Trustee,
officer of the Trust and beneficial owners of shares from and against any and
all claims, demands, costs, losses, expenses, and damages whatsoever arising out
of or related to such Trustee's or officer's performance of his or her duties as
a Trustee or officer of the Trust; provided, that nothing herein contained shall
indemnify, hold harmless or protect any Trustee or officer from or against any
liability to the Trust or any Shareholder to which he or she would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties ("disabling conduct") involved in the conduct
of his or her office. Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued, executed or done by
or on behalf of the Trust or the Board or officers or any of them in connection
with the Trust shall be conclusively deemed to have been issued, executed or
done only in or with respect to their or his or her capacity as Trustees or
Trustee or officers or officer, and such Trustees or Trustee or officers or
officer shall not be personally liable thereon.
SECTION 6.2 DERIVATIVE ACTIONS. The Trust may indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding by or in the right of the Trust
to procure a judgment in its favor by reason of the fact that he or she is or
was a Trustee, officer, agent or employee of the Trust, or is or was serving at
the request of the Trust as a trustee or officer of another trust, partnership,
joint venture, corporation or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit not arising by reason of
disabling conduct.
SECTION 6.3 REQUIRED INDEMNIFICATION. To the extent that a person who is
or was a Trustee, officer, agent or employee of the Trust has been successful on
the merits or otherwise in defense of any claim of liability by reason of
disabling conduct, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
SECTION 6.4 TRUSTEES' STANDARDS OF CONDUCT. No person who is or was a
Trustee shall be indemnified under this Article VI for any liabilities or
expenses incurred by reason of service in that capacity unless such person (a)
acted in good faith; and (b) reasonably believed, in the case of conduct in the
Trustee's official capacity with the Trust, that the conduct was in the best
interests of the Trust, and in all other cases, reasonably believed that the
conduct was at least not opposed to the best interests of the Trust; and (c) in
the case of any criminal proceeding, had no reasonable cause to believe that the
conduct was unlawful.
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SECTION 6.5 DETERMINATION. An indemnification under Sections 6.1 and 6.2
of this Article (unless ordered by a court) shall be made by the Trust only as
authorized in the specific case upon a determination, based on a review of the
facts, that indemnification of the Trustee, officer, agent or employee is proper
in the circumstances because he or she has met the applicable standard of
conduct as set forth in Article VII, Section 2, of the Declaration of Trust, and
this Article VI. Such determination shall be made (a) by a final decision on the
merits (including, but not limited to, a dismissal for insufficient evidence of
any disabling conduct) by a court or other body before whom the proceeding was
brought that the person to be indemnified was not liable by reason of disabling
conduct or (b) in the absence of such a decision, by a reasonable determination,
based upon a review of the facts, that such person was not liable by reason of
disabling conduct (i) by the vote of a majority of Trustees present at any
meeting at which a quorum is present who are neither interested persons of the
Trust as that term is defined in the 1940 Act, nor parties to such action, suit
or proceeding ("disinterested non-party Trustees"), or (ii) by independent legal
counsel in a written opinion; or (iii) by any other reasonable and fair means
not inconsistent with any of the above. The determination shall be made based on
a rebuttable presumption that the Trustee did not engage in disabling conduct.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that any liability or expense arose
by reason of disabling conduct.
SECTION 6.6 ADVANCE PAYMENT. Any expenses of the type described in this
Article VI may be paid by the Trust in advance of the final disposition of any
action, suit or proceeding as authorized by the Board in the specific case (a)
upon receipt of an undertaking by or on behalf of the Trustee, officer, agent or
employee to repay such amount unless it shall ultimately be determined that he
or she is entitled to be indemnified by the Trust as authorized in this Article
VI; and (b) in the case of the expenses incurred by a Trustee upon a
determination that the facts then known would not preclude indemnification and
receipt of a written affirmation by the Trustee of the Trustee's good faith
belief that the standards of conduct set forth in Section 6.4 of this Article
have been met; and (c) provided, that (i) the person to be indemnified provides
a security for his or her undertaking; or (ii) the Trust is insured against
losses arising by reason of any such lawful advances; or (iii) a majority of the
disinterested non-party Trustees, or an independent legal counsel in a written
opinion, determines, based on a review of readily-available facts (as opposed to
a full trial-type inquiry), that there is reason to believe that the person to
be indemnified ultimately will be found entitled to indemnification.
SECTION 6.7 SHAREHOLDER NOTIFICATION. Any indemnification of, or
advances of expenses to, a Trustee in accordance with this Article, if arising
out of a proceeding by or in the right of the Trust, shall be reported in
writing to the Shareholders with the notice of the next Shareholders' meeting or
otherwise by a supplement to the prospectus of the Trust or other acceptable
method.
SECTION 6.8 NON-EXCLUSIVE RIGHT. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under any agreement, vote of
Shareholders or disinterested Trustees, or otherwise.
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SECTION 6.9 INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of this
Article.
SECTION 6.10 GENERAL. No indemnification provided by this Article shall
be inconsistent with the 1940 Act, the Securities Act of 1933, or the DBTA. Any
indemnification provided by this Article shall continue as to a person who has
ceased to be a Trustee, officer, or employee, and shall inure to the benefit of
the heirs, executors and administrators of such person.
ARTICLE VII
WAIVERS OF NOTICE
Whenever, under the provisions of the Declaration of Trust or amendments
thereto, or these Bylaws, or the DBTA, any notice is required to be given to any
Shareholder, Trustee or committee member, a waiver thereof in writing signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance at any meeting
where notice is required, shall be deemed waiver of the requirement for such
notice, except where attendance is for the announced purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. Waivers given by telegram, radiogram, cablegram, facsimile
or other such form of rapid transmission, other than by electronic mail, shall
be deemed waivers in writing within the meaning of these Bylaws.
ARTICLE VIII
SHARES OF BENEFICIAL INTEREST
SECTION 8.1 CERTIFICATES. A certificate or certificates representing and
certifying the class and the full, but not fractional, number of Shares of
beneficial interest owned by each Shareholder in the Trust shall not be issued
except as the Board may otherwise determine from time to time. If the Board
issues certificates, it may require the surrender of a certificate or
certificates at its discretion. Any such certificate issued shall be signed by
facsimile signature or otherwise by the Chairman or President or a
Vice-President and counter-signed by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer or any transfer agent appointed by the
Board. In case the Chairman, any officer or officers, or any transfer agent who
have signed while holding such position, or whose facsimile signature or
signatures have been used on, any such certificate or certificates shall cease
to be such officer or officers of the Trust, such certificates may be issued and
delivered as though the officer or officers, or any transfer agent who signed
such certificate or certificates or whose facsimile signature or signatures have
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been used thereon had not ceased to be such Chairman, officer or officers, or
transfer agent of the Trust.
SECTION 8.2 RECORDING AND TRANSFER WITHOUT CERTIFICATES. The Trust shall
have the full power to participate in any system, service, or program approved
by the Board providing for the recording and transfer of ownership of the
Trust's Shares by electronic or other means without the issuance of
certificates.
SECTION 8.3 SHARE LEDGER AND RECORD OF SHAREHOLDERS. The Trust shall
maintain at its offices, or at the offices of a transfer agent, if one is
appointed, an original or duplicate Share ledger containing the names and
addresses of all Shareholders and the number of Shares of each series (or class)
held of record by each Shareholder, and, if a certificate has been issued, the
certificate number, date of issue and whether it was by original issue or by
transfer. The Board may appoint one or more transfer agents of the Shares of the
Trust. Unless and until such appointment is made, the Secretary of the Trust
shall maintain the Share ledger. The names of Shareholders as they appear on the
Share ledger shall be the official list of Shareholders of record of the Trust
for all purposes. The Trust shall be entitled to treat the recordholder of any
Share or Shares of beneficial interest of the Trust as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, these Shares or any rights deriving from these Shares, on the part
of any other person, including (but without limitation) a purchaser, assignee or
transferee, unless and until such other person becomes the recordholder of such
Shares, whether or not the Trust shall have either actual or constructive notice
of the interest of such other person, except as otherwise provided by the
federal securities laws or the DBTA.
SECTION 8.4 SHAREHOLDER OPEN ACCOUNTS. The Trust may maintain or cause
to be maintained for each Shareholder a Shareholder open account in which shall
be recorded such Shareholder's ownership of Shares and all changes therein.
SECTION 8.5 TRANSFERS OF SHARES. The Shares of the Trust shall be
transferable on the books of the Trust pursuant to the provisions of the
Declaration of Trust.
SECTION 8.6 ISSUANCE AND LIQUIDATION OF SHARES. Pursuant to the Board's
authority in the Declaration of Trust, the Board of Trustees may determine to
discontinue the issuance of Shares or to dissolve a Series (or class) of the
Trust or the Trust itself.
ARTICLE IX
CUSTODIAN
SECTION 9.1 EMPLOYMENT OF CUSTODIAN. All funds, securities and other
investments of the Trust shall be deposited in the safe keeping of such banks or
other companies as the Board may from time to time determine. Every arrangement
entered into with any bank or other company for the safe keeping of the
securities and investment of the Trust shall contain provisions complying with
the 1940 Act and the general rules and regulations thereunder.
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Subject to such law, rules, regulations and orders as the Securities and
Exchange Commission may adopt, the officers of the Trust may direct a custodian
to deposit all or any part of the securities owned by the Trust in a system for
the central handling of securities established by a national securities exchange
or a national securities association registered with the Securities and Exchange
Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class of any issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of such securities, provided, that all such
deposits shall be subject to withdrawal only upon the order of the Trust or
agent thereof or a custodian.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 FISCAL YEAR. Unless otherwise determined by the Board, the
fiscal year of the Trust shall begin on January 1 and end on December 31 in each
year.
SECTION 10.2 DELAWARE OFFICE. Pursuant to the Declaration of Trust and
the resolution of the Board, the officers of the Trust 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
resident of the State of Delaware or a Delaware corporation or a foreign
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
serve as the registered Delaware office of the Trust.
SECTION 10.3 VOTING SHARES OF OTHER TRUSTS. Unless otherwise ordered by
the Board, the President or any Vice-President or the Treasurer or any Assistant
Treasurer or the investment adviser shall have full power and authority to vote
by proxy or attend and act and vote at any meeting of security holders of any
corporation, partnership, trust or similar entity, any securities of which are
owned by this Trust, and at any such meeting may exercise any and all the rights
and powers incident to the ownership of such securities. The investment adviser
shall have the power and authority to delegate its authority to vote by proxy or
attend and act and vote at any meeting of security holders of any corporation,
partnership, trust or similar entity, any securities of which are owned by this
Trust, and to exercise any and all the rights and powers incident to the
ownership of such securities to a sub-adviser pursuant to a written agreement.
The President or any Vice-President or the Treasurer or any Assistant Treasurer
of the Trust or the investment adviser may execute proxies, in the name of and
on behalf of the Trust, to vote any such securities standing in the name of this
Trust.
SECTION 10.4 PROVISIONS IN CONFLICT WITH DECLARATION OF TRUST. If any
provision of the Bylaws is in conflict with a provision of the Declaration of
Trust, the Declaration of Trust shall be deemed to control.
SECTION 10.5 INSPECTION OF BOOKS. No Shareholder shall have any right to
inspect the books of the Trust except as conferred by law or by the Board of
Trustees. The Board of
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Trustees shall determine whether and to what extent the books of the Trust shall
be open to the inspection of Shareholders. The Board shall, at its discretion,
determine where and when such inspection shall be permitted to occur.
ARTICLE XI
AMENDMENT
SECTION 11.1 BY SHAREHOLDERS. These Bylaws may be amended, altered,
repealed or added to at any regular meeting of the Shareholders or at any
special meeting, by the affirmative vote of a majority of the total combined net
asset value of all Shares issued and outstanding and entitled to vote and
represented at such meeting.
SECTION 11.2 BY TRUSTEES. The Board may alter and amend, adopt, replace
or add to these Bylaws at any regular Board meeting, or at any special Board
meeting, by a majority vote of the Board members, except where a vote of
Shareholders is expressly required by the Declaration of Trust, or these Bylaws,
or the 1940 Act, or the DBTA
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