Exhibit No. EX-99(2)(a)
Amended and Restated as of May 19, 2005
AMENDED AND RESTATED BY-LAWS
OF
DELAWARE INVESTMENTS MINNESOTA MUNICIPAL INCOME FUND II, INC.
A Minnesota Corporation
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal executive office of Delaware
Investments Minnesota Municipal Income Fund II, Inc. (the "Corporation") shall
be One Commerce Square, Philadelphia, Pennsylvania, 19103. The board of
directors (the "Board of Directors") may, from time to time, change the location
of the principal executive office of the Corporation to any place within or
outside the State of Minnesota.
Section 2. OTHER OFFICES. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the Corporation
intends to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Except as otherwise required by law, meetings
of shareholders shall be held at any place within or outside the State of
Minnesota designated by the Board of Directors. In the absence of any such
designation by the Board of Directors, shareholders' meetings shall be held at
the principal executive office of the Corporation. For purposes of these Amended
and Restated By-Laws (the "By-Laws"), the term "shareholder" shall mean a record
owner of shares of capital stock of the Corporation.
Section 2. CALL OF MEETING. A meeting of the shareholders may be called at
any time by the Board of Directors, the Chairperson (as defined under Section 3
of Article III herein) or by the President (as defined under Section 1 of
Article V herein). If the Corporation is required under the Investment Company
Act of 1940, as amended (the "1940 Act"), to hold a shareholders' meeting to
elect directors, the meeting shall be deemed an "annual meeting" for that year
for purposes of the 1940 Act. If a regular meeting of shareholders has not been
held during the immediately preceding fifteen (15) months, a shareholder or
shareholders holding three percent (3%) or more of the voting power of all
shares entitled to vote may demand a regular meeting of shareholders by written
notice of demand given to the President or the treasurer of the Corporation;
provided, however, that such demand for a shareholders meeting is not
inconsistent with the federal securities laws, including the 1940 Act and the
rules and regulations thereunder. Within thirty (30) days after receipt of the
demand by either one of such officers, the Board of Directors shall cause a
regular meeting of shareholders to be called and held on notice no later than
ninety (90) days after receipt of the demand, all at the expense of the
Corporation.
Section 3. NOTICE OF SHAREHOLDERS' MEETING. In all instances where a
specific minimum notice period has not otherwise been fixed by law, all notices
of meetings of shareholders shall be sent or otherwise given, in accordance with
Section 4 of this Article, not less than ten (10) nor more than sixty (60) days
before the date of the meeting. The notice shall specify (i) the place, date and
hour of the meeting, and (ii) the general nature of the business to be
transacted. The notice of any meeting at which directors are to be elected also
shall include the name of any nominee or nominees whom at the time of the notice
are intended to be presented for election. Except with respect to adjournments
as provided herein, no business shall be transacted at such meeting other than
that specified in the notice.
Section 4. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of shareholders shall be given either personally or by first-class mail,
courier or telegraphic, facsimile, electronic mail or other written
communication, charges prepaid, addressed to the shareholder at the address of
that shareholder appearing on the books of the Corporation or its transfer agent
or given by the shareholder to the Corporation for the purpose of notice. If no
such address appears on the Corporation's books or is given, notice shall be
deemed to have been given if sent to that shareholder by first-class mail,
courier, or telegraphic, facsimile, electronic mail or other written
communication to the Corporation's principal executive office. Notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail, with a courier or sent by telegram, facsimile, electronic mail or
other means of written communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the Corporation is returned to the Corporation marked
to indicate that the notice to the shareholder cannot be delivered at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing, or substantial equivalent thereof, if such notices
shall be available to the shareholder on written demand of the shareholder at
the principal executive office of the Corporation 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
shareholders' meeting shall be executed by the secretary, assistant secretary or
any transfer agent of the Corporation giving the notice and shall be filed and
maintained in the records of the Corporation. Such affidavit shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
Section 5. QUORUM; ADJOURNED MEETING. The holders of a majority of the
shares outstanding and entitled to vote at the meeting shall constitute a quorum
for the transaction of business at any regular or special shareholders' meeting.
In case a quorum shall not be present at a meeting, those present in person or
by proxy shall adjourn to such day as they shall, by majority vote, agree upon
without further notice other than by announcement at the meeting at which such
adjournment is taken. If a quorum is present, a meeting may be adjourned from
time to time without notice other than announcement at the meeting. At adjourned
meetings at which a quorum is present, any business may be transacted which
might have been transacted at the meeting as originally noticed. If a quorum is
present, the shareholders may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Notwithstanding the foregoing, when holders of preferred stock are
entitled to elect any of the Corporation's directors by class vote of such
holders, the holders of 33-1/3% of such shares entitled to a vote at a meeting
shall constitute a quorum for purposes of such an election.
Section 6. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of the
Articles of Incorporation (the "Articles") and these By-Laws, as may be amended
from time to time and as in effect at such time. The shareholders' vote may be
by voice vote or by ballot; provided, however, that any election for directors
must be by ballot if demanded by any shareholder before the voting has begun.
Abstentions and broker non-votes will be included for purposes of
determining whether a quorum is present at a shareholders' meeting. Abstentions
and broker non-votes will be treated as votes present at a shareholders'
meeting, but will not be treated as votes cast. Abstentions and broker
non-votes, therefore, will have no effect on proposals which require a plurality
or majority of votes cast for approval, but will have the same effect as a vote
"against" on proposals requiring a majority of outstanding voting securities for
approval.
Section 7. WRITTEN ACTION. Any action that might be taken at a meeting of
the shareholders may be taken without a meeting if done in writing and signed by
all of the shareholders entitled to vote on that action.
Section 8. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS. The
transactions of a meeting of shareholders, however called and noticed and
wherever held, shall be valid as though transacted at a meeting duly held after
regular call and notice if a quorum be present either in person or by proxy.
Attendance by a person at a meeting shall also constitute a waiver of notice
with respect to that person of that meeting, except when the person objects at
the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened and except that such attendance is
not a waiver of any right to object to the consideration of matters not included
in the notice of the meeting if that objection is expressly made at the
beginning of the meeting. Whenever notice of a meeting is required to be given
to a shareholder under the Articles or these By-Laws, a written waiver thereof,
executed before or after the meeting by such shareholder or his or her attorney
thereunto authorized and filed with the records of the meeting, shall be deemed
equivalent to such notice.
Section 9. PROXIES. Every shareholder entitled to vote for directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the shareholder and filed
with the secretary of the Corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the shareholder executing it by a written notice delivered to the
Corporation prior to the exercise of the proxy or by the shareholder's execution
of a subsequent proxy or attendance and vote in person at the meeting; or (ii)
written notice of the death or incapacity of the shareholder is received by the
Corporation before the proxy's vote is counted; provided, however, that no proxy
shall be valid after the expiration of eleven (11) months from the date of the
proxy unless otherwise provided in the proxy. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the provisions of
the Minnesota Business Corporation Act.
With respect to any shareholders' meeting, the Corporation may accept
proxies by any electronic, telephonic, computerized, telecommunications or other
reasonable alternative to the execution of a written instrument authorizing the
proxy to act, provided the shareholder's authorization is received within eleven
(11) months before the meeting. 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 Corporation receives a specific written
notice to the contrary from any one of them. A proxy purporting to be executed
by or on behalf of a shareholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest with the
challenger.
Section 10. INSPECTORS OF ELECTION. Before any meeting of shareholders, the
Board of Directors or the appropriate officers of the Corporation may appoint
any person other than nominees for office to act as inspector of election at the
meeting or its adjournment. If no inspector of election is so appointed, the
chairperson of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint an inspector of election at the meeting. If
any person appointed as inspector fails to appear or fails or refuses to act,
the chairperson of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill the vacancy.
The inspector shall:
(a) determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) receive votes, 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
(g) do any other acts that may be proper to conduct the election or vote
with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the applicable provisions of the Articles and
these By-Laws relating to action requiring shareholder approval, the business
and affairs of the Corporation shall be managed and all powers shall be
exercised by or under the direction of the Board of Directors.
Section 2. NUMBER OF DIRECTORS; QUALIFICATIONS AND TERM OF OFFICE. Until
the first regular or special meeting of shareholders, or until the directors
increase their number by resolution, the number of directors shall be the number
named in the Articles. Thereafter, the number of directors shall be established
by resolution of the shareholders (subject to the authority of the Board of
Directors to increase or decrease the number of directors as permitted by law),
but shall not be less than the lesser of (a) the number of shareholders of
record and beneficially, or (b) one (1). In the absence of such resolution, the
number of directors shall be the number last fixed by the shareholders or the
Board of Directors, or the Articles. Directors may but need not be shareholders.
Each of the directors shall hold office until the regular meeting of
shareholders next held after his or her election and until his or her successor
shall have been elected and shall qualify, or until he or she shall resign, or
shall have been removed as hereinafter provided.
Section 3. CHAIRPERSON. The Board of Directors may elect a chairperson for
the purpose of presiding at meetings of the Board of Directors (the
"Chairperson"). The Chairperson shall exercise and perform such other powers and
duties as may be from time to time assigned to the Chairperson by the Board of
Directors or prescribed by the By-Laws. The Chairperson may delegate his or her
powers and duties to the directors or officers of the Corporation that he or she
deems appropriate, provided that such delegation is consistent with applicable
legal and regulatory requirements.
Section 4. ELECTION. Except as otherwise provided herein, the directors
shall be elected annually at the regular shareholders' meeting. In the event
that directors are not elected at the regular shareholders' meeting, then
directors may be elected at a special shareholders' meeting, provided that the
notice of such meeting shall contain mention of such purpose. At each
shareholders' meeting for the election of directors, the directors shall be
elected by a plurality of the shares entitled to vote for such directors and
validly cast at such election.
Section 5. VACANCIES. Vacancies in the Board of Directors of this
Corporation occurring by reason of death, resignation or increase in the number
of directors by the shareholders to the minimum number required by Section 2 or
by the Board pursuant to Section 2, shall be filled for the unexpired term by a
majority of the remaining directors of the Board although less than a quorum;
newly created directorships resulting from an increase in the authorized number
of directors by action of the Board of Directors as permitted by Section 2 may
be filled by a two-thirds (2/3) vote of the directors serving at the time of
such increase; and each person so elected shall be a director until his or her
successor is elected by the shareholders, who may make such election at their
next regular meeting or at any meeting duly called for that purpose; provided,
however, that no vacancy can be filled as provided above if prohibited by the
provisions of the 1940 Act.
Section 6. REMOVAL. A director may be removed from office, with or without
cause, by a vote of a majority of the outstanding shares of the class or classes
of capital stock that elected such director except, in the event that the entire
Board or any one or more directors be so removed, new directors shall be elected
at the same meeting, or the remaining directors may, to the extent vacancies are
not filled at such meeting, fill any vacancy or vacancies created by such
removal.
Section 7. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. All meetings of the
Board of Directors may be held at any place within or outside the State of
Minnesota that has been designated from time to time by resolution of the Board
of Directors. In the absence of such a designation, regular meetings shall be
held at the principal executive office of the Corporation. Any meeting, regular
or special, may be held by conference telephone or similar communication
equipment, so long as all directors participating in the meeting can hear one
another, and all such directors shall be deemed to be present in person at the
meeting.
Section 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held without call at such time as shall from time to time be fixed by
the Board of Directors. Such regular meetings may be held without notice.
Section 9. SPECIAL MEETINGS. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Chairperson, the
President (as defined under Section 1 of Article V herein), any vice president,
the secretary or any two (2) directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail, courier
or telegram, charges prepaid, or by facsimile or electronic mail, addressed to
each director at that director's address as it is shown on the records of the
Corporation. In case the notice is mailed, it shall be deposited in the United
States mail at least seven (7) days before the time of the holding of the
meeting. In case the notice is delivered personally, by telephone, by courier,
to the telegraph company, or by express mail, facsimile, electronic mail or
similar service, it shall be delivered at least forty-eight (48) hours before
the time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting or the place if the meeting is to be held at the
principal executive office of the Corporation.
Section 10. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 13 of this Article. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors, subject to the
provisions of the Articles. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors if any
action taken is approved by at least a majority of the required quorum for that
meeting.
Section 11. WAIVER OF NOTICE. Notice of any meeting need not be given to
any director 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
Corporation or made a part of the minutes of the meeting. Notice of a meeting
shall also be deemed given to any director who attends the meeting without
protesting before or at its commencement about the lack of notice to that
director.
Section 12. ACTION BY WRITTEN CONSENT IN LIEU OF MEETINGS. Except as
required by law, including the 1940 Act and the rules and regulations
thereunder, any action which requires subsequent shareholder approval and that
is required or permitted to be taken at a meeting of the Board of Directors may
be taken by written action signed by all directors or by authenticated
electronic communication provided by all of the directors. Any action that does
not require subsequent shareholder approval that might be taken at a meeting of
the Board of Directors, or any duly constituted committee thereof, may be taken
by written action signed by a majority of the directors or committee members or
by authenticated electronic communication provided by a majority of the
directors or committee members.
Section 13. ADJOURNMENT. A majority of the directors present, whether or
not constituting a quorum, may adjourn any matter at any meeting to another time
and place.
Section 14. 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 seven (7) days, in which case notice of the time and place shall be given
before the time of the adjourned meeting to the directors who were present at
the time of the adjournment.
Section 15. FEES AND COMPENSATION OF DIRECTORS. Directors 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
Board of Directors. This Section 15 shall not be construed to preclude any
director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation for those services.
Section 16. DIRECTOR EMERITUS. Upon retirement of a director, the Board of
Directors may elect him or her to the position of Director Emeritus. A Director
Emeritus shall serve for one year and may be reelected by the Board of Directors
from year to year thereafter. Any person serving as a Director Emeritus shall
not vote at meetings of directors and shall not be held responsible for actions
of the Board of Directors but shall receive fees paid to directors for serving
as such.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors
may, by resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two (2) or more directors,
to serve at the pleasure of the Board of Directors. The Board of Directors may
designate one or more directors as alternate members of any committee who may
replace any absent member at any meeting of the committee. Any committee to the
extent provided in the resolution of the Board of Directors, shall have the
authority of the Board of Directors, except with respect to:
(a) the approval of any action which under the Articles or applicable law
also requires shareholders' approval or requires approval by a majority of the
entire Board of Directors or certain members of said Board of Directors;
(b) the filling of vacancies on the Board of Directors or in any committee;
(c) the fixing of compensation of the directors for serving on the Board of
Directors or on any committee;
(d) the amendment or repeal of the Articles or of the By-Laws or the
adoption of new By-Laws;
(e) the amendment or repeal of any resolution of the Board of Directors
which by its express terms is not so amendable or repealable; or
(f) the appointment of any other committees of the Board of Directors or
the members of these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of any
committee shall be governed by and 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
Board of Directors and its members, except that the time of regular meetings of
any committee may be determined either by resolution of the Board of Directors
or by resolution of the committee. Special meetings of any committee may also be
called by resolution of the Board of Directors, and notice of special meetings
of any committee shall also be given to all alternate members who shall have the
right to attend all meetings of the committee. The Board of Directors may adopt
rules for the government of any committee not inconsistent with the provisions
of these By-Laws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a president
and chief executive officer (the "President"), a secretary, and a treasurer. The
Corporation may also have, at the discretion of the Board of Directors, one or
more vice presidents, one or more assistant vice presidents, one or more
assistant secretaries, one or more assistant treasurers, and such other officers
as may be appointed in accordance with the provisions of Section 3 of this
Article. Any number of offices may be held by the same person, except the
offices of President and vice president.
Section 2. ELECTION OF OFFICERS. The officers of the Corporation designated
in Section 1 of this Article shall be chosen by the Board of Directors, and each
shall serve at the pleasure of the Board of Directors, subject to the rights, if
any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may appoint and may
empower the Chairperson and/or the President to appoint such other officers as
the business of the Corporation 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 Board of Directors 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 Board of Directors at any regular or
special meeting of the Board of Directors, or by an officer upon whom such power
of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. 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 Corporation 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.
Section 6. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairperson, the President shall be the
chief executive officer of the Corporation and shall, subject to the control of
the Board of Directors, have general supervision, direction and control of the
business and the officers of the Corporation. The President shall have the
general powers and duties of management usually vested in the office of
president of a corporation and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 7. VICE PRESIDENTS. In the absence or disability of the President,
vice presidents, in the order as determined by the Board of Directors, shall
succeed to all of the duties of the President and when so acting shall have all
powers of and be subject to all the restrictions upon the President until the
President's return, or until such disability shall be removed or until a new
President shall have been elected. The vice presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Directors, the Chairperson, the President or
these By-Laws.
Section 8. SECRETARY. The secretary shall keep or cause to be kept at the
principal executive office of the Corporation, or such other place as the Board
of Directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors and shareholders, which shall record the time
and place of such meetings, designation of whether such a meeting is regular or
special, the names of those present at directors' meetings or committee
meetings, and a summary of the proceedings.
The secretary shall cause to be kept at the principal executive office of
the Corporation, or at the office of the Corporation's transfer agent or
registrar, a share register or a duplicate share register showing the names of
all shareholders and their addresses, the number, series and classes of shares
held by each, the number 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 Board of Directors required by these By-Laws or by
applicable law to be given and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by these By-Laws.
Section 9. TREASURER. The treasurer 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 Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director.
The treasurer shall deposit all monies and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board of Directors. He or she shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his or her
transactions as treasurer and of the financial condition of the Corporation and
shall have other powers and perform such other duties as may be prescribed by
the Board of Directors or these By-Laws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "agent" means any person who is or was a director, officer, employee or
other agent of this Corporation or is or was serving at the request of the
Corporation as a trustee, director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise or was a trustee, director, officer, employee or agent of a foreign
or domestic corporation which was a predecessor of another enterprise at the
request of such predecessor entity; "proceeding" means any threatened, pending
or completed action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes without limitation attorneys' fees and
any expenses of establishing a right to indemnification under this Article.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any proceeding (other than an action by or in the right of the Corporation)
by reason of the fact that such person is or was an agent of the Corporation,
against expenses, judgments, penalties, fines, settlements and other amounts
actually and reasonably incurred in connection with such proceeding if such
person acted in good faith and in a manner that such person reasonably believed
to be in the best interests of the Corporation and in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. For purposes of this Section 2 and Section 3 below, (a) the
termination of any proceeding by judgment, order, or settlement shall not of
itself create a presumption that the person did not act in good faith or in a
manner which the person reasonably believed to be in the best interests of the
Corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful, and (b) the termination of any proceeding by conviction,
or a plea of nolo contendere or its equivalent, or an entry of an order of
probation prior to judgment, creates a rebuttable presumption that the person
did not act in good faith, or in a manner which the person reasonably believed
to be in the best interests of the Corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
Section 3. ACTIONS BY THE CORPORATION. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that the person is or was
an agent of the Corporation, against expenses actually and reasonably incurred
by that person in connection with the defense or settlement of that action if
that person acted in good faith and in a manner that person reasonably believed
to be in the best interests of the Corporation.
Section 4. EXCLUSION OF INDEMNIFICATION. Notwithstanding any provision to
the contrary contained herein, there shall be no right to indemnification for
any liability arising by reason of willful misfeasance, bad faith, gross
negligence, or the reckless disregard of the duties involved in the conduct of
the agent's office with the Corporation.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a) In respect of any claim, issue or matter as to which that person shall
have been adjudged to be liable in the performance of that person's duty to the
Corporation, unless and only to the extent that the court in which that action
was brought shall determine upon application that in view of all the
circumstances of the case, that person was not liable by reason of the disabling
conduct set forth in the preceding paragraph and is fairly and reasonably
entitled to indemnity for the expenses which the court shall determine; or
(b) In respect of any claim, issue, or matter as to which that person shall
have been adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in the person's official capacity; or
(c) Of amounts paid in settling or otherwise disposing of a threatened or
pending action, with or without court approval, or of expenses incurred in
defending a threatened or pending action which is settled or otherwise disposed
of without court approval, unless the required approval set forth in Section 6
of this Article is obtained.
Section 5. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of the
Corporation has been successful on the merits in defense of any proceeding
referred to in Sections 2 or 3 of this Article or in defense of any claim, issue
or matter therein, before the court or other body before whom the proceeding was
brought, the agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith, provided that the Board of
Directors, including a majority who are disinterested, non-party directors, also
determines that based upon a review of the facts, the agent was not liable by
reason of the disabling conduct referred to in Section 4 of this Article.
Section 6. REQUIRED APPROVAL. Except as provided in Section 5 of this
Article, any indemnification under this Article shall be made by the Corporation
only if authorized in the specific case on a determination that indemnification
of the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3 of this Article and
is not prohibited from indemnification because of the disabling conduct set
forth in Section 4 of this Article, by:
(a) A majority vote of a quorum consisting of Independent Directors who are
not parties to the proceeding; or
(b) A written opinion by an independent legal counsel.
Section 7. ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the Corporation before the final disposition of
the proceeding on receipt of an undertaking by or on behalf of the agent to
repay the amount of the advance unless it shall be determined ultimately that
the agent is entitled to be indemnified as authorized in this Article, provided
the agent provides a security for his undertaking, or a majority of a quorum of
the disinterested, non-party directors, or an independent legal counsel in a
written opinion, determine that based on a review of readily available facts,
there is reason to believe that said agent ultimately will be found entitled to
indemnification.
Section 8. OTHER CONTRACTUAL RIGHTS. Nothing contained in this Article
shall affect any right to indemnification to which persons other than directors
and officers of the Corporation or any subsidiary thereof may be entitled by
contract or otherwise.
Section 9. LIMITATIONS. No indemnification or advance shall be made under
this Article in any circumstances where it would be inconsistent with:
(a) A provision of the Articles, a resolution of the shareholders, or an
agreement which prohibits or otherwise limits indemnification which was in
effect at the time of accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid; or
(b) Any condition expressly imposed by a court in approving a settlement.
Section 10. INSURANCE. Upon and in the event of a determination by the
Board of Directors to purchase such insurance, the Corporation shall be entitled
to purchase and maintain insurance on behalf of any agent of the Corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such.
Section 11. FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This Article does not
apply to any proceeding against any director, investment manager or other
fiduciary of an employee benefit plan in that person's capacity as such, even
though that person may also be an agent of the Corporation as defined in Section
1 of this Article. Nothing contained in this Article shall limit any right to
indemnification to which such a director, investment manager, or other fiduciary
may be entitled by contract or otherwise which shall be enforceable to the
extent permitted by applicable law other than this Article.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The Corporation
shall keep at its principal executive office or at the office of its transfer
agent or registrar a record of its shareholders, providing the names and
addresses of all shareholders and the number, series and classes of shares held
by each shareholder.
Section 2. MAINTENANCE AND INSPECTION OF BY-LAWS. The Corporation shall
keep at its principal executive office the original or a copy of these By-Laws
as amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 3. MAINTENANCE AND INSPECTION OF OTHER RECORDS. The accounting
books and records and minutes of proceedings of the shareholders and the Board
of Directors and any committee or committees of the Board of Directors shall be
kept at such place or places designated by the Board of Directors or in the
absence of such designation, at the principal executive office of the
Corporation. The minutes and the accounting books and records shall be kept
either in written form or in any other form capable of being converted into
written form. The minutes and accounting books and records shall be open to
inspection upon the written demand of any shareholder or holder of a voting
trust certificate at any reasonable time during usual business hours for a
purpose reasonably related to the holder's interests as a shareholder or as the
holder of a voting trust certificate. The inspection may be made in person or by
an agent or attorney.
Section 4. INSPECTION BY DIRECTORS. Every director 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 Corporation. This inspection by a
director may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
ARTICLE VIII
DIVIDENDS
Section 1. DECLARATION OF DIVIDENDS. Dividends upon the shares of capital
stock of the Corporation may, subject to the provisions of the Articles, if any,
be declared by the Board of Directors at any regular or special meeting,
pursuant to applicable law. Dividends may be paid in cash, in property, or in
shares of the Corporation.
Section 2. RESERVES. Before payment of any dividend there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors may, from time to time, in its absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall deem to be in the best interests of the
Corporation, and the Board of Directors may abolish any such reserve in the
manner in which it was created.
ARTICLE IX
GENERAL MATTERS
Section 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. All checks, drafts, or
other orders for payment of money, notes or other evidences of indebtedness
issued in the name of or payable to the Corporation shall be signed or endorsed
by such person or persons and in such manner as from time to time shall be
determined by resolution of the Board of Directors.
Section 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of Directors,
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 Corporation and this authority may be
general or confined to specific instances; and unless so authorized or ratified
by the Board of Directors or within the agency power of an officer, no officer,
agent, or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
Section 3. CERTIFICATES FOR SHARES. As a matter of general policy,
certificates for shares of beneficial interest in any series of the Trust will
not be issued. Appropriate officers of the Trust may authorize the issuance of
certificates in certain limited circumstances determined by such officers to be
appropriate, provided such shares are fully paid. All certificates shall be
signed in the name of the Corporation by the Chairperson, the President or vice
president and by the treasurer or an assistant treasurer or the secretary or any
assistant secretary, certifying the number of shares and the series and class of
shares owned by the shareholders. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of
issue. Notwithstanding the foregoing, the Corporation may adopt and use a system
of issuance, recordation and transfer of its shares by electronic or other
means.
Section 4. LOST CERTIFICATES. Except as provided in this Section 4, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the Corporation and cancelled at the same time. In case
any share certificate or certificate for any other security is lost, stolen or
destroyed, the appropriate officers of the Corporation may authorize the
issuance of a replacement certificate on such terms and conditions as the Board
of Directors or such appropriate officers may require, including a provision for
indemnification of the Corporation secured by a bond or other adequate security
sufficient to protect the Corporation against any claim that may be made against
it, including any expense or liability on account of the alleged loss, theft, or
destruction of the certificate or the issuance of the replacement certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY THE
CORPORATION. The Chairperson, the President or any vice president or any other
person authorized by resolution of the Board of Directors or by any of the
foregoing designated officers, is authorized to vote or represent on behalf of
the Corporation any and all shares of any corporation, partnership, trust, or
other entity, foreign or domestic, standing in the name of the Corporation. The
authority granted may be exercised in person or by a proxy duly executed by such
designated person.
Section 6. TRANSFER OF SHARES. Shares of the Corporation shall be
transferable only on the record books of the Corporation by the person in whose
name such Shares are registered, or by his or her duly authorized attorney or
representative. In all cases of transfer by an attorney-in-fact, the original
power of attorney, or an official copy thereof duly certified, shall be
deposited and remain with the Corporation, its transfer agent or other duly
authorized agent. In case of transfers by executors, administrators, guardians
or other legal representatives, duly authenticated evidence of their authority
shall be produced, and may be required to be deposited and remain with the
Corporation, its transfer agent or other duly authorized agent. No transfer
shall be made unless and until the certificate issued to the transferor, if any,
shall be delivered to the Corporation, its transfer agent or other duly
authorized agent, properly endorsed.
Section 7. HOLDERS OF RECORD. The Corporation shall be entitled to treat
the holder of record of any share or shares as the owner thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
the Corporation shall have express or other notice thereof.
Section 8. RECORD DATES. The Board of Directors may fix, or authorize an
officer to fix, a date not more than 60 days before the date of a meeting of
shareholders as the date for the determination of the holders of shares entitled
to notice of and entitled to vote at the meeting. When a date is so fixed, only
shareholders on that date are entitled to notice of and permitted to vote at
that meeting of shareholders.
Section 9. FISCAL YEAR. The fiscal year of the Corporation and each series
thereof shall be fixed by resolution of the Board of Directors and, subject to
applicable law or regulation, may be re-fixed or changed from time to time by
resolution of the Board of Directors. The fiscal year of the Corporation shall
be the taxable year of each series of the Corporation.
ARTICLE X
AMENDMENTS
Section 1. AMENDMENT. Except as otherwise permitted by law, these By-Laws
may be amended or altered by a vote of the majority of the whole Board of
Directors at any meeting provided that notice of such proposed amendment shall
have been given in the notice given to the directors of such meeting, or by
action of the Board of Directors by written consent in lieu of a meeting. Such
authority in the Board of Directors is subject to the power of the shareholders
to change or repeal such By-Laws by a majority vote of the shareholders present
or represented at any regular or special meeting of shareholders called for such
purpose. Except as otherwise permitted by law, the Board of Directors shall not
make or alter any By-Laws fixing a quorum for meetings of shareholders,
prescribing procedures for removing directors or filling vacancies on the Board
of Directors, or fixing the number of directors or their qualifications,
classifications or term of office, except that the Board of Directors may make
or alter any By-Law to increase their number.
