AMENDED
AND
RESTATED
BY-LAWS
OF
EVERGREEN UTILITIES AND HIGH INCOME FUND
a Delaware Statutory Trust
TABLE OF CONTENTS
INTRODUCTION
▇. ▇▇▇▇▇▇▇ and Restated Agreement and Declaration of Trust...................................1
B. Definitions...............................................................................1
ARTICLE I. OFFICES...............................................................................................1
Section 1. Principal Office..........................................................................1
Section 2. Delaware Office...........................................................................1
Section 3. Other Offices.............................................................................1
ARTICLE II. MEETINGS OF SHAREHOLDERS.............................................................................1
Section 1. Annual Meetings...........................................................................1
Section 2. Special Meetings..........................................................................1
Section 3. Business Day..............................................................................4
Section 4. Notice of Meetings of Shareholders........................................................4
Section 5. Manner of Giving Notice; Affidavit of Notice..............................................4
Section 6. Adjourned Meeting; Notice.................................................................4
Section 7. Voting....................................................................................5
Section 8. Waiver of Notice; Consent of Absent Shareholders..........................................5
Section 9. Shareholder Action by Written Consent Without a Meeting...................................5
Section 10. Record Date for Shareholder Notice; Voting and Giving Consents............................5
Section 11. Proxies...................................................................................6
Section 12. Inspectors of Election....................................................................7
Section 13. Nominations and Proposals by Shareholders.................................................7
ARTICLE III. TRUSTEES...........................................................................................10
Section 1. Powers...................................................................................10
Section 2. Number of Trustees.......................................................................10
Section 3. Vacancies................................................................................10
Section 4. Chair....................................................................................10
Section 5. Place of Meetings and Meetings by Telephone..............................................10
Section 6. Regular Meetings.........................................................................10
Section 7. Special Meetings.........................................................................10
Section 8. Quorum...................................................................................11
Section 9. Waiver of Notice.........................................................................11
Section 10. Adjournment..............................................................................11
Section 11. Notice of Adjournment....................................................................11
Section 12. Action Without a Meeting.................................................................11
Section 13. Fees and Compensation of Trustees........................................................12
Section 14. Delegation of Power to Other Trustees....................................................12
ARTICLE IV. COMMITTEES..........................................................................................12
Section 1. Committees of Trustees...................................................................12
Section 2. Meetings and Action of Committees........................................................12
ARTICLE V. OFFICERS.............................................................................................13
Section 1. Officers.................................................................................13
Section 2. Election of Officers.....................................................................13
Section 3. Subordinate Officers.....................................................................13
Section 4. Removal and Resignation of Officers......................................................13
Section 5. Vacancies in Offices.....................................................................13
Section 6. President................................................................................13
Section 7. Vice Presidents..........................................................................13
Section 8. Secretary................................................................................14
Section 9. Treasurer................................................................................14
ARTICLE VI. INSPECTION OF RECORDS AND REPORTS...................................................................14
Section 1. Inspection by Shareholders...............................................................14
Section 2. Inspection by Trustees...................................................................14
ARTICLE VII. GENERAL MATTERS....................................................................................15
Section 1. Checks, Drafts, Evidences of Indebtedness................................................15
Section 2. Contracts and Instruments; How Executed..................................................15
Section 3. Fiscal Year..............................................................................15
Section 4. Seal.....................................................................................15
ARTICLE VIII. AMENDMENTS........................................................................................15
Section 1. Amendment................................................................................15
AMENDED AND RESTATED
BY-LAWS
of
EVERGREEN UTILITIES AND HIGH INCOME FUND
A Delaware Statutory Trust
INTRODUCTION
▇. ▇▇▇▇▇▇▇ and Restated Agreement and Declaration of Trust. These Amended
and Restated By-Laws (the "By-Laws") shall be subject to the Amended and
Restated Agreement and Declaration of Trust, as from time to time in effect (the
"Declaration of Trust"), of Evergreen Utilities and High Income Fund, a Delaware
statutory trust (the "Trust"). In the event of any inconsistency between the
terms hereof and the terms of the Declaration of Trust, the terms of the
Declaration of Trust shall control.
B. Definitions. Capitalized terms used herein and not herein defined are
used as defined in the Declaration of Trust.
ARTICLE I. OFFICES
Section 1. Principal Office. The Trustees shall fix and, from time to time,
may change the location of the principal executive office of the Trust at any
place within or outside the State of Delaware.
Section 2. Delaware Office. The Trustees shall establish a registered
office in the State of Delaware and shall appoint as the Trust's registered
agent for service of process in the State of Delaware an individual who is a
resident of the State of Delaware or a Delaware corporation or a corporation
authorized to transact business in the State of Delaware; in each case the
business office of such registered agent for service of process shall be
identical with the registered Delaware office of the Trust.
Section 3. Other Offices. The Trustees may at any time establish branch or
subordinate offices at any place or places within or outside the State of
Delaware where the Trust intends to do business.
ARTICLE II. MEETINGS OF SHAREHOLDERS
Section 1. Annual Meetings. Annual meetings of the Shareholders of the
Trust or a Series or Class thereof shall be held on such date and at such place
within or without the State of Delaware as the Trustees shall designate.
Section 2. Special Meetings.
(a) Special meetings of the Shareholders may be called at any time by
the Chair, the President or the Trustees or any other officer designated
for the purpose by the Trustees. Subject to subsection (c) of this Section
2, a special meeting of Shareholders shall also be called by the Secretary
of the Trust upon the written request of the Shareholders entitled to cast
not less than a majority of all the votes entitled to be cast at such
meeting.
(b) Any Shareholder of record seeking to have Shareholders request a
special meeting shall, by sending written notice to the Secretary (the
"Record Date Request Notice") by registered mail, return receipt requested,
request the Trustees to fix a record date to determine the Shareholders
entitled to request a special meeting (the "Requested Record Date"). The
Record Date Request Notice shall set forth the purpose of the meeting and
the matters proposed to be acted on at it, shall be signed by one or more
Shareholders of record as of the date of signature (or their duly
authorized agents), shall bear the date of signature of each such
Shareholder (or other agent) and shall set forth all information relating
to each such Shareholder that must be disclosed in solicitations of proxies
for election of trustees in an election contest (even if an election
contest is not involved), or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and Rule 14a-11 thereunder. Upon receiving the Record
Date Request Notice, the Trustees may fix a Requested Record Date. The
Requested Record Date shall not precede and shall not be more than ten (10)
days after the close of business on the date on which the resolution fixing
the Requested Record Date is adopted by the Trustees. If the Trustees,
within thirty (30) days after the date on which a valid Record Date Request
Notice is received, fails to adopt a resolution fixing the Requested Record
Date and make a public announcement of such Requested Record Date, the
Requested Record Date shall be the close of business on the 30th after the
first date on which the Record Date Request Notice is received by the
Secretary.
(c) In order for any Shareholder to request a special meeting, one or
more written requests for a special meeting signed by Shareholders of
record (or their duly authorized agents) as of the Requested Record Date
entitled to cast not less than a majority (the "Special Meeting
Percentage") of all of the votes entitled to be cast at such meeting (the
"Special Meeting Request") shall be delivered to the Secretary. In
addition, the Special Meeting Request shall set forth the purpose of the
meeting and the matters proposed to be acted on at it (which shall be
limited to the matters set forth in the Record Date Request Notice received
by the Secretary), shall bear the date of signature of each such
Shareholder (or other agent) signing the Special Meeting Request, shall set
forth the name and address, as they appear in the Trust's books, of each
Shareholder signing such request (or on whose behalf the Special Meeting
Request is signed) and the class and number of shares of the Trust which
are owned of record and beneficially by each such Shareholder, shall be
sent to the Secretary by registered mail, return receipt requested, and
shall be received by the Secretary within sixty (60) days after the
Requested Record Date. Any requesting Shareholder may revoke his, her or
its request for a special meeting at any time by written revocation
delivered to the Secretary.
(d) The Secretary shall inform the requesting Shareholders of the
reasonably estimated cost of preparing and mailing the notice of meeting
(including the Trust's proxy materials). The Secretary shall not be
required to call a special meeting upon Shareholder request and such
meeting shall not be held unless, in addition to the documents required by
paragraphs (b) and (c) of this Section 2, the Secretary receives payment of
such reasonably estimated cost prior to the mailing of any notice of the
meeting.
(e) Except as provided in the next sentence, any special meeting shall
be held at such date and time as may be designated by the President, Chair
or Trustees, whoever has called the meeting. In the case of any special
meeting called by the Secretary upon the request of Shareholders (a
"Shareholder Requested Meeting"), such meeting shall be held at such place,
date and time as may be designated by the Trustees; provided, however, that
the date of any Shareholder Requested Meeting shall be -------- not more
than ninety (90) days after the record date for such meeting (the "Meeting
Record Date"); and provided further that ---------------- if the Trustees
fail to designate, within thirty (30) days after the date that a valid
Special Meeting Request is actually received by the Secretary (the
"Delivery Date"), a date and time for a Shareholder Requested Meeting, then
such meeting shall be held at 2:00 p.m. Eastern Time on the 90th day after
the date the request for such meeting is actually received by the Trust or,
if such 90th day is not a Business Day (as defined below), on the first
preceding Business Day; and provided -------- further that in the event
that the Trustees fail to designate a place for a Shareholder Requested
Meeting within thirty (30) ------- days after the Delivery Date, then such
meeting shall be held at the principal executive offices of the Trust. In
fixing a date for any special meeting, the President, Chair or Trustees may
consider such factors as he, she, or they deem(s) relevant within the good
faith exercise of business judgment, including, without limitation, the
nature of the matters to be considered, the facts and circumstances
surrounding any request for a meeting and any plan of the Trustees to call
an annual meeting or a special meeting. In the case of any Shareholder
Requested Meeting, if the Trustees fail to fix a Meeting Record Date that
is a date within thirty (30) days after the Delivery Date, then the close
of business on the 30th day after the Delivery Date shall be the Meeting
Record Date.
(f) If at any time as a result of written revocations of requests for
the special meeting, Shareholders of record (or their duly authorized
agents) as of the Request Record Date entitled to cast less than the
Special Meeting Percentage shall have delivered and not revoked requests
for a special meeting, the Secretary may refrain from mailing the notice of
the meeting or, if the notice of the meeting has been mailed, the Secretary
may revoke the notice of the meeting at any time before ten (10) days prior
to the meeting if the Secretary has first sent to all other requesting
Shareholders written notice of such revocation and of intention to revoke
the notice of the meeting. Any request for a special meeting received after
a revocation by the Secretary of a notice of a meeting shall be considered
a request for a new special meeting.
(g) The Chair, the President or the Trustees may appoint regionally or
nationally recognized independent inspectors of elections to act as the
agent of the Trust for the purpose of promptly performing a ministerial
review of the validity of any purported Special Meeting Request received by
the Secretary. For the purpose of permitting the inspectors to perform such
review, no such purported request shall be deemed to have been delivered to
the Secretary until the earlier of (i) five (5) Business Days after receipt
by the Secretary of such purported request and (ii) such date as the
independent inspectors certify to the Trust that the valid requests
received by the Secretary represent at least a majority of the issued and
outstanding shares of stock that would be entitled to vote at such meeting.
Nothing contained in this paragraph (g) shall in any way be construed to
suggest or imply that the Trust or any Shareholder shall not be entitled to
contest the validity of any request, whether during or after such five (5)
Business Day period, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
Section 3. Business Day.
For purposes of these By-laws, "Business Day" shall mean any day other than
a Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
Section 4. Notice of Meetings of Shareholders. All notices of meetings of
Shareholders shall be sent or otherwise given to Shareholders in accordance with
Section 4 of this Article II not less than ten (10) nor more than ninety (90)
days before the date of the meeting. The notice shall specify (i) the place,
date and hour of the meeting, and (ii) the general nature of the business to be
transacted. Notice of any Shareholder Requested Meeting, however, shall be
provided in a manner and time consistent with Section 2(e) of this Article II.
Section 5. Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of Shareholders shall be (i) given either by hand delivery, first-class
mail, telegraphic or other written communication, charges prepaid, and (ii)
addressed to the Shareholder at the address of that Shareholder appearing on the
books of the Trust or its transfer agent or given by the Shareholder to the
Trust for the purpose of notice. If no such address appears on the Trust's books
or is not given to the Trust, notice shall be deemed to have been given if sent
to that Shareholder by first class mail or telegraphic or other written
communication to the Trust's principal executive office, or if published at
least once in a newspaper of general circulation in the county where that office
is located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication or, where notice is given by publication, on the date of
publication. An affidavit of the mailing or other means of giving any notice of
any meeting of Shareholders shall be filed and maintained in the minute book of
the Trust.
Section 6. Adjourned Meeting; Notice. Any meeting of Shareholders, whether
or not a quorum is present, may be adjourned from time to time by: (a) the vote
of the majority of the Shares represented at that meeting, either in person or
by proxy; or (b) in his or her discretion by the chair of the meeting.
When any meeting of Shareholders is adjourned to another time or place,
notice need not be given of the adjourned meeting at which the adjournment is
taken, unless a new record date of the adjourned meeting is fixed. Notice of any
such adjourned meeting shall be given to each Shareholder of record entitled to
vote at the adjourned meeting in accordance with the provisions of Sections 4
and 5 of this Article II. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 7. Voting. The Shareholders entitled to vote at any meeting of
Shareholders shall be determined in accordance with the provisions of the
Declaration of Trust of the Trust, as in effect at such time. The Shareholders'
vote may be by voice vote or by ballot, provided, however, that any election for
Trustees must be by ballot if demanded by any Shareholder before the voting has
begun.
Section 8. Waiver of Notice; Consent of Absent Shareholders. The
transaction of business and any actions taken at a meeting of Shareholders,
however called and noticed and wherever held, shall be as valid as though taken
at a meeting duly held after regular call and notice provided a quorum is
present either in person or by proxy at the meeting of Shareholders and if
either before or after the meeting, each Shareholder entitled to vote who was
not present in person or by proxy at the meeting of the Shareholders signs a
written waiver of notice or a consent to a holding of the meeting or an approval
of the minutes. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any meeting of Shareholders.
Attendance by a Shareholder at a meeting of Shareholders shall constitute a
waiver of notice of that meeting, except if the Shareholder objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened and except that attendance at a meeting of
Shareholders is not a waiver of any right to object to the consideration of
matters not included in the notice of the meeting of Shareholders if that
objection is expressly made at the beginning of the meeting.
Section 9. Shareholder Action by Written Consent Without a Meeting. Except
as provided in the Declaration of Trust, any action that may be taken at any
meeting of Shareholders may be taken without a meeting and without prior notice
if a consent in writing setting forth the action to be taken is signed by the
holders of outstanding Shares having not less than the minimum number of votes
that would be necessary to authorize or take that action at a meeting at which
all Shares entitled to vote on that action were present and voted, provided,
however, that the Shareholders receive any necessary Information Statement or
other necessary documentation in conformity with the requirements of the 1934
Act or the rules or regulations thereunder. All such consents shall be filed
with the Secretary of the Trust and shall be maintained in the Trust's records.
Any Shareholder giving a written consent or the Shareholder's proxy holders or a
transferee of the Shares or a personal representative of the Shareholder or
their respective proxy holders may revoke the Shareholder's written consent by a
writing received by the Secretary of the Trust before written consents of the
number of Shares required to authorize the proposed action have been filed with
the Secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the Secretary shall give prompt
notice of the action approved by the Shareholders without a meeting. This notice
shall be given in the manner specified in Section 5 of this Article II.
Section 10. Record Date for Shareholder Notice; Voting and Giving Consents.
(a) Except as provided in Section 2 of this Article II, for purposes
of determining the Shareholders entitled to vote or act at any meeting or
adjournment thereof, the Trustees may fix in advance a record date which
shall not be more than ninety (90) days nor less than ten (10) days before
the date of any such meeting. Without fixing a record date for a meeting,
the Trustees may for voting and notice purposes close the register or
transfer books for one or more Series (or Classes) for all or any part of
the period between the earliest date on which a record date for such
meeting could be set in accordance herewith and the date of such meeting.
If the Trustees do not so fix a record date or close the register or
transfer books of the affected Series or Classes, the record date for
determining Shareholders entitled to notice of or to vote at a meeting of
Shareholders shall be the close of business on the business day next
preceding the day on which notice is given or if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
(b) The record date for determining Shareholders entitled to give
consent to action in writing without a meeting, (a) when no prior action of
the Trustees has been taken, shall be the day on which the first written
consent is given, or (b) when prior action of the Trustees has been taken,
shall be (i) such date as determined for that purpose by the Trustees,
which record date shall not precede the date upon which the resolution
fixing it is adopted by the Trustees and shall not be more than twenty (20)
days after the date of such resolution, or (ii) if no record date is fixed
by the Trustees, the record date shall be the close of business on the day
on which the Trustees adopt the resolution relating to that action. Nothing
in this Section shall be constituted as precluding the Trustees from
setting different record dates for different Series or Classes. Only
Shareholders of record on the record date as herein determined shall have
any right to vote or to act at any meeting or give consent to any action
relating to such record date, notwithstanding any transfer of Shares on the
books of the Trust after such record date.
Section 11. Proxies. Subject to the provisions of the Declaration of Trust,
every Person entitled to vote for Trustees or on any other matter shall have the
right to do so either in person or by proxy, provided that either (i) an
instrument authorizing such a proxy to act is executed by the Shareholder in
writing and dated not more than eleven (11) months before the meeting, unless
the instrument specifically provides for a longer period or (ii) the Trustees
adopt an electronic, telephonic, computerized or other alternative to the
execution of a written instrument authorizing the proxy to act, and such
authorization is received not more than eleven (11) months before the meeting. A
proxy shall be deemed executed by a Shareholder if the Shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the Shareholder or the Shareholder's
attorney-in-fact. A valid proxy which does not state that it is irrevocable
shall continue in full force and effect unless (i) revoked by the Person
executing it before the vote pursuant to that proxy is taken, (a) by a writing
delivered to the Trust stating that the proxy is revoked, or (b) by a subsequent
proxy executed by such Person, or (c) attendance at the meeting and voting in
person by the Person executing that proxy, or (d) revocation by such Person
using any electronic, telephonic, computerized or other alternative means
authorized by the Trustees for authorizing the proxy to act; or (ii) written
notice of the death or incapacity of the maker of that proxy is received by the
Trust before the vote pursuant to that proxy is counted. A proxy with respect to
▇▇▇▇▇▇ held in the name of two or more Persons shall be valid if executed by any
one of them unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of the two or more Persons.
A proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Section 12. Inspectors of Election. Before any meeting of Shareholders, the
Trustees may appoint any person other than a nominee for office to act as
inspector of election at the meeting or its adjournments. If no inspector of
election is so appointed, the chair of the meeting may appoint an inspector of
election at the meeting. There shall be one (1) inspector of election. If the
person appointed as inspector fails to appear or fails or refuses to act, the
chair of the meeting may appoint another 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.
Section 13. Nominations and Proposals by Shareholders.
(a) Annual Meetings of Shareholders.
(1) Nominations of persons for election as a Trustee and the
proposal of business to be considered by the Shareholders may be made
at an annual meeting of Shareholders (i) pursuant to the Trust's
notice of meeting, (ii) by or at the direction of the Trustees or
(iii) by any Shareholder of the Trust who was a Shareholder of record
both at the time of giving of notice provided for in this Section
13(a) and at the time of the annual meeting, who is entitled to vote
at the meeting and who complied with the notice procedures set forth
in this Section 13(a).
(2) For nominations for election to the Trustees or other
business to be properly brought before an annual meeting by a
Shareholder pursuant to clause (iii) of paragraph (a)(1) of this
Section 13, the Shareholder must have given timely notice thereof in
writing to the Secretary of the Trust and such other business must
otherwise be a proper matter for action by Shareholders. To be timely,
a Shareholder's notice must be delivered to the Secretary at the
principal executive office of the Trust by not later than the close of
business on the 90th day prior to the first anniversary of the date of
mailing of the notice for the preceding year's annual meeting nor
earlier than the close of business on the 120th day prior to the first
anniversary of the date of mailing of the notice for the preceding
year's annual meeting; provided, however, that in the event that the
date of the mailing of the notice for the annual meeting is advanced
or delayed by more than thirty (30) days from the anniversary date of
the mailing of the notice for the preceding year's annual meeting,
notice by the Shareholder to be timely must be so delivered not
earlier than the close of business on the 120th day prior to the date
of mailing of the notice for such annual meeting and not later than
the close of business on the later of the 90th day prior to the date
of mailing of the notice for such annual meeting or the 10th day
following the day on which public announcement of the date of mailing
of the notice for such meeting is first made by the Trust. In no event
shall the public announcement of a postponement of the mailing of the
notice for such annual meeting or of an adjournment or postponement of
an annual meeting to a later date or time commence a new time period
for the giving of a Shareholder's notice as described above. A
Shareholder's notice to be proper must set forth (i) as to each person
whom the Shareholder proposes to nominate for election or reelection
as a trustee (A) the name, age, business address and residence address
of such person, (B) the class and number of shares of stock of the
Trust that are beneficially owned or owned of record by such person
and (C) all other information relating to such person that is required
to be disclosed in solicitations of proxies for election of trustees
in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A (or any successor provision) under the 1934
Act (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a trustee if elected);
(ii) as to any other business that the Shareholder proposes to bring
before the meeting, a description of the business desired to be
brought before the meeting, the reasons for conducting such business
at the meeting and any material interest in such business of such
Shareholder (including any anticipated benefit to the Shareholder
therefrom) and of each beneficial owner, if any, on whose behalf the
proposal is made; and (iii) as to the Shareholder giving the notice
and each beneficial owner, if any, on whose behalf the nomination or
proposal is made, (x) the name and address of such Shareholder, as
they appear on the Trust's stock ledger and current name and address,
if different, and of such beneficial owner, and (y) the class and
number of shares of stock of the Trust which are owned beneficially
and of record by such Shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 13 to the contrary, in the event that the
number of trustees to be elected to the Board of Trustees is increased
and there is no public announcement by the Trust of such action or
specifying the size of the increased Trustees at least one hundred
(100) days prior to the first anniversary of the date of mailing of
the notice for the preceding year's annual meeting, a Shareholder's
notice required by this Section 13(a) shall also be considered timely,
but only with respect to nominees for any new positions created by
such increase, if the notice is delivered to the Secretary at the
principal executive offices of the Trust not later than the close of
business on the 10th day immediately following the day on which such
public announcement is first made by the Trust.
(b) Special Meetings of Shareholders.
Only such business shall be conducted at a special meeting of
Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting. Nominations of persons for election to the
Trustees may be made at a special meeting of Shareholders at which trustees
are to be elected (i) pursuant to the Trust's notice of meeting, (ii) by or
at the direction of the Trustees or (iii) provided that the Trustees have
determined that trustees shall be elected at such special meeting, by any
Shareholder of the Trust who is a Shareholder of record both at the time of
giving of notice provided for in this Section 13(b) and at the time of the
special meeting, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this Section 13(b). In the event
the Trust calls a special meeting of Shareholders for the purpose of
electing one or more Trustees, any such Shareholder may nominate a person
or persons (as the case may be) for election to such position as specified
in the Trust's notice of meeting, if the Shareholder's notice containing
the information required by paragraph (a)(2) of this Section 13 shall have
been delivered to the Secretary at the principal executive offices of the
Trust not earlier than the close of business on the 120th day prior to such
special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the
day on which public announcement is first made of the date of the special
meeting and the nominees proposed by the Trustees to be elected at such
meeting. In no event shall the public announcement of a postponement or
adjournment of a special meeting to a later date or time commence a new
time period for the giving of a Shareholder's notice as described above.
(c) General.
Only such persons who are nominated in accordance with the procedures
set forth in this Section 13 shall be eligible to serve as trustee, and
only such business shall be conducted at a meeting of Shareholders as shall
have been brought before the meeting in accordance with the procedures set
forth in this Section 13. The chair of the meeting shall have the power and
duty to determine whether a nomination or any other business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 13 and, if any
proposed nomination or other business is not in compliance with this
Section 13, to declare that such nomination or proposal shall be
disregarded.
For purposes of this Section 13, (a) the "date of mailing of the
notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of trustees and (b) "public announcement" shall mean
disclosure (i) in a press release either transmitted to the principal
securities exchange on which the Trust's common shares are traded or
reported by a recognized news service or (ii) in a document publicly filed
by the Trust with the Commission.
(d) Compliance with State And Federal Law.
Notwithstanding the foregoing provisions of this Section 13, a
Shareholder shall also comply with all applicable requirements of state law
and of the 1934 Act and the rules and regulations thereunder with respect
to the matters set forth in this Section 13. Nothing in this Section 13
shall be deemed to affect any right of a Shareholder to request inclusion
of a proposal in, nor the right of the Trust to omit a proposal from, the
Trust's proxy statement pursuant to Rule 14a-8 (or any successor provision)
under the 1934 Act.
ARTICLE III. TRUSTEES
Section 1. Powers. Subject to the applicable provisions of the 1940 Act,
the Declaration of Trust and these By-Laws relating to action required to be
approved by the Shareholders, the business and affairs of the Trust shall be
managed and all powers shall be exercised by or under the direction of the
Trustees.
Section 2. Number of Trustees. The exact number of Trustees within the
limits specified in the Declaration of Trust shall be fixed from time to time by
a resolution of the Trustees.
Section 3. Vacancies. Vacancies in the authorized number of Trustees may be
filled as provided in the Declaration of Trust.
Section 4. Chair. The Trustees shall have the power to appoint from among
the members of the Board of Trustees a Chair. Such appointment shall be by
majority vote of the Trustees. Such Chair shall serve until his or her successor
is appointed or until his or her earlier death, resignation or removal. When
present he or she shall preside at the meetings of the Shareholders and of the
Trustees. The Chair shall, subject to the control of the Trustees, perform such
other powers and duties as may be from time to time assigned to him or her by
the Trustees or prescribed by the Declaration of Trust or these By-Laws,
consistent with his or her position. The Chair need not be a Shareholder.
Section 5. Place of Meetings and Meetings by Telephone. All meetings of the
Trustees may be held at any place that has been selected from time to time by
the Trustees. In the absence of such an election, regular meetings shall be held
at the principal executive office of the Trust. Subject to any applicable
requirements of the 1940 Act, any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so long as all Trustees
participating in the meeting can hear one another and all such Trustees shall be
deemed to be present in person at the meeting.
Section 6. Regular Meetings. Regular meetings of the Trustees shall be held
without call at such time as shall from time to time be fixed by the Trustees.
Such regular meetings may be held without notice.
Section 7. Special Meetings. Special meetings of the Trustees for any
purpose or purposes may be called at any time by the Chair, the President or the
Secretary or any two (2) Trustees.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each Trustee or sent by first-class mail, by
telegram or telecopy (or similar electronic means) or, by nationally recognized
overnight courier, charges prepaid, addressed to each Trustee at that Trustee's
address as it is shown on the records of the Trust. If the notice is mailed, it
shall be deposited in the United States mail at least seven (7) calendar days
before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or by telegram, telecopy (or similar electronic
means), or overnight courier, it shall be given at least forty eight (48) hours
before the time of the holding of the meeting. Any oral notice given personally
or by telephone must be communicated only to the Trustee. The notice need not
specify the purpose of the meeting or the place of the meeting, if the meeting
is to be held at the principal executive office of the Trust. Notice of a
meeting need not be given to any Trustee if a written waiver of notice, executed
by such Trustee before or after the meeting, is filed with the records of the
meeting, or to any Trustee who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such Trustee.
Section 8. Quorum. Twenty-five percent (25%) of the Trustees shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 10 of this Article III. Every act or decision done or made
by a majority of the Trustees present at a meeting duly held at which a quorum
is present shall be regarded as the act of the Trustees, subject to the
provisions of the Declaration of Trust. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
Trustees if any action taken is approved by at least a majority of the required
quorum for that meeting.
Section 9. Waiver of Notice. Notice of any meeting need not be given to any
Trustee who either before or after the meeting signs a written waiver of notice,
a consent to holding the meeting, or an approval of the minutes. The waiver of
notice or consent need not specify the purpose of the meeting. All such waivers,
consents, and approvals shall be filed with the records of the Trust or made a
part of the minutes of the meeting. Notice of a meeting shall also be deemed
given to any Trustee who attends the meeting without protesting, prior to or at
its commencement, the lack of notice to that Trustee.
Section 10. Adjournment. A majority of the Trustees present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
Section 11. Notice of Adjournment. Notice of the time and place of holding
an adjourned meeting need not be given.
Section 12. Action Without a Meeting. Unless the 1940 Act requires that a
particular action be taken only at a meeting at which the Trustees are present
in person, any action to be taken by the Trustees at a meeting may be taken
without such meeting by the written consent of a majority of the Trustees then
in office. Any such written consent may be executed and given by telecopy or
similar electronic means. Such written consents shall be filed with the minutes
of the proceedings of the Trustees. If any action is so taken by the Trustees by
the written consent of less than all of the Trustees, prompt notice of the
taking of such action shall be furnished to each Trustee who did not execute
such written consent, provided that the effectiveness of such action shall not
be impaired by any delay or failure to furnish such notice.
Section 13. Fees and Compensation of Trustees. Trustees and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Trustees. This Section 13 of Article III shall not be construed to preclude any
Trustee from serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those services.
Section 14. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his or her power for a period not exceeding one (1)
month at any one time to any other Trustee. Except where applicable law may
require a Trustee to be present in person, a Trustee represented by another
Trustee, pursuant to such power of attorney, shall be deemed to be present for
purpose of establishing a quorum and satisfying the required majority vote.
ARTICLE IV. COMMITTEES
Section 1. Committees of Trustees. The Trustees may by resolution designate
one or more committees, each consisting of two (2) or more Trustees, to serve at
the pleasure of the Trustees. The Trustees may designate one or more Trustees as
alternate members of any committee who may replace any absent member at any
meeting of the committee. Any committee, to the extent provided for by
resolution of the Trustees, shall have the authority of the Trustees, except
with respect to:
(a) the approval of any action which under applicable law requires
approval by a majority of the Trustees or certain Trustees;
(b) the filling of vacancies of Trustees;
(c) the fixing of compensation of the Trustees for services generally
or as a member of any committee;
(d) the amendment or termination of the Declaration of Trust or any
Series or Class or the amendment of the By-Laws or the adoption of new
By-Laws;
(e) the amendment or repeal of any resolution of the Trustees which by
its express terms is not so amendable or repealable;
(f) a distribution to the Shareholders of the Trust, except at a rate
or in a periodic amount or within a designated range determined by the
Trustees; or
(g) the appointment of any other committees of the Trustees or the
members of such new committees.
Section 2. Meetings and Action of Committees. Meetings and action of
committees shall be governed by, held and taken in accordance with the
provisions of Article III of these By-Laws, with such changes in the context
thereof as are necessary to substitute the committee and its members for the
Trustees generally, except that the time of regular meetings of committees may
be determined either by resolution of the Trustees or by resolution of the
committee. Special meetings of committees may also be called by resolution of
the Trustees. Alternate members shall be given notice of meetings of committees
and shall have the right to attend all meetings of committees. The Trustees may
adopt rules for the governance of any committee not inconsistent with the
provisions of these By-Laws.
ARTICLE V. OFFICERS
Section 1. Officers. The officers of the Trust shall be a President, a
Secretary, and a Treasurer. The Trust may also have, at the discretion of the
Trustees, one or more Vice Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article V. Any number of
offices may be held by the same person. Any officer may be, but need not be, a
Trustee or Shareholder.
Section 2. Election of Officers. The officers of the Trust, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article V, shall be chosen by the Trustees, and each shall
serve at the pleasure of the Trustees, subject to the rights, if any, of an
officer under any contract of employment.
Section 3. Subordinate Officers. The Trustees may appoint and may empower
the President to appoint such other officers as the business of the Trust may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in these By-Laws or as the Trustees may from
time to time determine.
Section 4. Removal and Resignation of Officers. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Trustees at any regular or special meeting
of the Trustees or by such officer upon whom such power of removal may be
conferred by the Trustees. Any officer may resign at any time by giving written
notice to the Trust. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Trust under any contract to which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office. The
President may make temporary appointments to a vacant office pending action by
the Trustees.
Section 6. President. The President shall be the chief operating and chief
executive officer of the Trust and shall, subject to the control of the
Trustees, have general supervision, direction and control of the business and
the officers of the Trust. He or she or his or her designee, shall preside at
all meetings of the Shareholders. He or she shall have the general powers and
duties of a president of a corporation and shall have such other powers and
duties as may be prescribed by the Trustees, the Declaration of Trust or these
By-Laws.
Section 7. Vice Presidents. In the absence or disability of the President,
any Vice President, unless there is an Executive Vice President, shall perform
all the duties of the President and when so acting shall have all powers of and
be subject to all the restrictions upon the President. The Executive Vice
President or Vice Presidents, whichever the case may be, shall have such other
powers and shall perform such other duties as from time to time may be
prescribed for them respectively by the Trustees or the President or by these
By-Laws.
Section 8. Secretary. The Secretary shall keep or cause to be kept at the
principal executive office of the Trust, or such other place as the Trustees may
direct, a book of minutes of all meetings and actions of Trustees, committees of
Trustees and Shareholders with the time and place of holding, whether regular or
special, and if special, how authorized, the notice given, the names of those
present at Trustees' meetings or committee meetings, the number of Shares
present or represented at meetings of Shareholders and the proceedings of the
meetings.
The Secretary shall keep or cause to be kept at the principal executive
office of the Trust or at the office of the Trust's transfer agent or registrar,
a share register or a duplicate share register showing the names of all
Shareholders and their addresses, the number and classes of Shares held by each,
the number and date of certificates issued for the same and the number and date
of cancellation of every certificate surrendered for cancellation.
The Secretary shall give or cause to be given notice of all meetings of the
Shareholders and of the Trustees (or committees thereof) required to be given by
these By-Laws or by applicable law and shall have such other powers and perform
such other duties as may be prescribed by the Trustees or by these By-Laws.
Section 9. Treasurer. The Treasurer shall be the chief financial officer
and chief accounting officer of the Trust and shall keep and maintain or cause
to be kept and maintained adequate and correct books and records of accounts of
the properties and business transactions of the Trust and each Series or Class
thereof, including accounts of the assets, liabilities, receipts, disbursements,
gains, losses, capital and retained earnings of all Series or Classes thereof.
The books of account shall at all reasonable times be open to inspection by any
Trustee.
The Treasurer shall deposit all monies and other valuables in the name and
to the credit of the Trust with such depositaries as may be designated by the
Board of Trustees. He or she shall disburse the funds of the Trust as may be
ordered by the Trustees, shall render to the President and Trustees, whenever
they request it, an account of all of his or her transactions as chief financial
officer and of the financial condition of the Trust and shall have other powers
and perform such other duties as may be prescribed by the Trustees or these
By-Laws.
ARTICLE VI. INSPECTION OF RECORDS AND REPORTS
Section 1. Inspection by Shareholders. The Trustees shall from time to time
determine whether and to what extent, and at what times and places, and under
what conditions and regulations the accounts and books of the Trust or any of
them shall be open to the inspection of the Shareholders; and no Shareholder
shall have any right to inspect any account or book or document of the Trust
except as conferred by law or otherwise by the Trustees or by resolution of the
Shareholders.
Section 2. Inspection by Trustees. Every Trustee shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the Trust. This inspection by a
Trustee may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
ARTICLE VII. GENERAL MATTERS
Section 1. Checks, Drafts, Evidences of Indebtedness. All checks, drafts,
or other orders for payment of money, notes or other evidences of indebtedness
issued in the name of or payable to the Trust shall be signed or endorsed in
such manner and by such person or persons as shall be designated from time to
time in accordance with the resolution of the Board of Trustees.
Section 2. Contracts and Instruments; How Executed. The Trustees, except as
otherwise provided in these By-Laws, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Trust and this authority may be general or confined
to specific instances; and unless so authorized or ratified by the Trustees or
within the agency power of an officer, no officer, agent, or employee shall have
any power or authority to bind the Trust by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
Section 3. Fiscal Year. The fiscal year of each series of the Trust shall
be fixed and refixed or changed from time to time by the Trustees.
Section 4. Seal. The seal of the Trust shall consist of a flat-faced dye
with the name of the Trust cut or engraved thereon. However, unless otherwise
required by the Trustees, the seal shall not be necessary to be placed on, and
its absence shall not impair the validity of, any document, instrument or other
paper executed and delivered by or on behalf of the Trust.
ARTICLE VIII. AMENDMENTS
Section 1. Amendment. Except as otherwise provided by applicable law or by
the Declaration of Trust, these By-Laws may be restated, amended, supplemented
or repealed by a majority vote of the Trustees.