AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1999
REGISTRATION NO. 33-6486
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
PRE-EFFECTIVE AMENDMENT NO. [ ]
POST-EFFECTIVE AMENDMENT NO. 17 [X]
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AND/OR
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [X]
AMENDMENT NO. 18
MUTUAL OF AMERICA INVESTMENT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
320 PARK AVENUE
NEW YORK, NEW YORK 10022
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)(ZIP CODE)
(212) 224-1600
(DEPOSITOR'S TELEPHONE NUMBER, INCLUDING AREA CODE)
DOLORES J. MORRISSEY, PRESIDENT
MUTUAL OF AMERICA INVESTMENT CORPORATION
320 PARK AVENUE,
NEW YORK, NEW YORK 10022
(NAME AND ADDRESS OF AGENT FOR SERVICE)
COPY TO:
STANLEY M. LENKOWICZ, ESQ
SENIOR VICE PRESIDENT,
DEPUTY GENERAL COUNSEL AND SECRETARY
MUTUAL OF AMERICA INVESTMENT CORPORATION
320 PARK AVENUE
NEW YORK, NEW YORK 10022
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: As soon as practicable after the
effective date of the Registration Statement.
IT IS PROPOSED THAT THIS FILING WILL BECOME EFFECTIVE:(CHECK APPROPRIATE SPACE)
[X] immediately upon filing pursuant to paragraph (b).
[ ] on (date) pursuant to paragraph (b).
[ ] 60 days after filing pursuant to paragraph (a)(1).
[ ] on (date) pursuant to paragraph (a)(1).
[ ] 75 days after filing pursuant to paragraph (a)(2).
[ ] on (date) pursuant to paragraph (a)(2) of Rule 485.
MUTUAL OF AMERICA INVESTMENT CORPORATION
CROSS-REFERENCE SHEET
ITEMS IN
PART A OF
FORM N-1A CAPTION IN FORM N-1A CAPTION OR LOCATION IN PROSPECTUS
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1 Front and Back Cover Pages .............. Front and Back Covers
2 Risk/Return Summary:
Investments, Risks, and Performance ..... Summary of How Our Funds Invest
3 Risk/Return Summary:
Fee Table ............................... Not Applicable (shares only to separate accounts)
4 Investment Objectives, Principal
Investment Strategies, and Related
Risks ................................... Details about How Our Funds Invest and Related Risks
5 Management's Discussion of Fund
Performance ............................. Not Applicable (Included in Annual Report)
6 Management, Organization, and
Capital Structure ....................... Management of the Funds
7 Shareholder Information ................. Information on Fund Shares
8 Distribution Agreements ................. Not Applicable
9 Financial Highlights Information ........ Financial Highlights
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ITEMS IN
PART B OF CAPTION OR LOCATION IN
FORM N-1A CAPTION IN FORM N-1A STATEMENT OF ADDITIONAL INFORMATION
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10 Cover Page and Table of Contents ......... Cover
11 Fund History ............................. Investment Company's Form of Operations
12 Description of the Fund and Its
Investments and Risks .................... Investment Strategies and Related Risks; Fundamental
Investment Restrictions; Description of Corporate Bond
Ratings; Use of Standard & Poor's Indices
13 Management of the Fund ................... Management of the Investment Company
14 Control Persons and Principal Holders
of Securities ............................ Investment Company's Form of Operations
15 Investment Advisory and Other
Services ................................. Investment Advisory Arrangements;
Independent Auditors; Legal Matters; Custodian
16 Brokerage Allocation and Other
Practices ................................ Portfolio Transactions and Brokerage
17 Capital Stock and Other Securities ....... Investment Company's Form of Operations
18 Purchase, Redemption, and Pricing of
Shares ................................... Purchase, Redemption and Pricing of Shares
19 Taxation of the Fund ..................... Taxation of the Investment Company
20 Underwriters ............................. Distribution Arrangements
21 Calculation of Performance Data .......... Yield and Performance Information
22 Financial Statements ..................... Financial Statements
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ITEMS IN
PART C OF CAPTION IN FORM N-1A AND IN PART C
FORM N-1A OF REGISTRATION STATEMENT
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23 Exhibits
24 Persons Controlled by or Under
Common Control with the Fund
25 Indemnification
26 Business and Other Connections of
the Investment Adviser
27 Principal Underwriters
28 Location of Accounts and Records
29 Management Services
30 Undertakings
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PART C. OTHER INFORMATION
ITEM 23. EXHIBITS
1(a) Articles of Incorporation of Mutual of America Investment Corporation
(the "Investment Company") (1)
1(b) Articles of Amendment, dated September 22, 1986 (1)
1(c) Articles Supplementary, dated July 25, 1988 (1)
1(d) Articles Supplementary, dated February 16, 1993 (1)
1(e) Articles Supplementary, dated October 4, 1993 (1)
1(f) Articles Supplementary, dated April 5, 1994 (1)
1(g) Articles Supplementary, dated April 13, 1995 (1)
1(h) Articles Supplementary, dated September 16, 1997 (1)
1(i) Articles Supplementary, dated April 6, 1999 (2)
2(a) By-Laws of the Investment Company (1)
2(b) Revision to Article II, Section 2.2 and Article III, Section 3.4 of
the By-Laws (1)
2(c) Revision to Article III, Section 3.8 of the By-Laws (1)
4(a) Investment Advisory Agreement, between the Investment Company and
Mutual of America Life Insurance Company ("Mutual of America"), as
investment adviser (1)
4(b) Assumption Agreement, between Mutual of America and Mutual of America
Capital Management Corporation (the "Adviser"), as investment adviser
(1)
4(c) Supplement AA to Investment Advisory Agreement, between the Investment
Company and the Adviser (1)
4(d) Supplement AE to Investment Advisory Agreement, between the Investment
Company and the Adviser (1)
4(e) Supplement dated May 1, 1999 to Investment Advisory Agreement,
between the Investment Company and the Adviser (3)
4(f) Subadvisory Agreement, between the Adviser and Fred Alger Management,
Inc. (1)
4(g) Subadvisory Agreement, between the Adviser and Oak Associates (1)
4(h) Subadvisory Agreement, between the Adviser and Palley-Needelman Asset
Management, Inc. (1)
5 Distribution Agreement, between the Investment Company and Mutual of
America, as Distributor (4)
7 Custody Agreement, between the Investment Company and The Chase
Manhattan Bank (1)
9(a) Consent and Opinion of General Counsel for Equity Index, All America,
Aggressive Equity, Composite, Bond, Mid-Term Bond, Short-Term Bond
and Money Market Funds, as restated (1)
9(b) Consent and Opinion of General Counsel for Mid-Cap Equity Index Fund
shares(2)
10(a) Consent of Arthur Andersen LLP(2)
10(b) Consent of Swidler Berlin Shereff Friedman LLP(2)
10(c) Powers of Attorney of Ms. Morrissey and Messrs. Altstadt, Flanagan,
Mertz, Needham and Nolan (1)
27.1-8 Financial Data Schedules for Equity Index, All America, Aggressive
Equity, Composite, Bond, Mid-Term Bond, Short-Term Bond and Money
Market Funds (2)
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(1) Included in this Post-Effective Amendment No. 17
(2) Included in Post-Effective Amendment No. 16 filed with the Commission on
April 15, 1999
(3) Included in Post-Effective Amendment No. 15 filed with the Commission on
February 12, 1999
(4) Included in Post-Effective Amendment No. 11 filed with the Commission on
April 28, 1995
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ITEM 24. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
The Adviser is an indirect wholly-owned subsidiary of Mutual of America Life Insurance Company (Mutual of America Life). Mutual of America Life is a New York mutual life insurance company, and as such no person has the direct of indirect power to control Mutual of America Life except by virtue of a persons capacity as a director or executive officer. Each holder of an in-force insurance policy or annuity contract issued by Mutual of America Life has the right to vote for the election of directors of Mutual of America Life at annual elections and upon other corporate matters where policyholders' votes are taken. Mutual of America Life directly or indirectly owns the following companies:
Mutual of America Life Insurance Company, a New York mutual insurance company, wholly owns
o Mutual of America Corporation, a Delaware corporation, and
o Mutual of America Foundation, a New York not-for-profit corporation.
Mutual of America Corporation wholly owns
o The American Life Insurance Company of New York, a New York stock
corporation,
o Mutual of America Securities Corporation, a Delaware corporation, and
o Mutual of America Capital Management Corporation (the Adviser), a
Delaware corporation.
Mutual of America Life Insurance Company and The American Life Insurance Company of New York, through their separate accounts, wholly own all of Registrant's shares.
Mutual of America Life Insurance Company currently owns a majority of the outstanding shares of Mutual of America Institutional Funds, Inc., a Maryland corporation registered under the 1940 Act as a management investment company whose shares are publicly offered to institutional investors.
ITEM 25. INDEMNIFICATION
ARTICLES OF INCORPORATION OF THE INVESTMENT COMPANY. The Articles of Incorporation of the Investment Company provide in substance that no director or officer of the Invesment Company shall be liable to the Investment Company or its shareholders for money damages, unless the director or officer is subject to liability by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of duties in the conduct of his or her office.
BY-LAWS OF THE INVESMENT COMPANY. The By-Laws of the Investment Company provide for the indemnification of present and former officers and directors of the Investment Company against liability by reason of service to the Investment Company, unless the officer or director is subject to liability by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office (Disabling Conduct). No indemnification shall be made to an officer or director unless there has been a final adjudication on the merits, a dismissal of a proceeding for insufficiency of evidence of Disabling Conduct, or a reasonable determination has been made that no Disabling Conduct occurred. The Investment Company may advance payment of expenses only if the officer or director to be indemnified undertakes to repay the advance unless indemnification is made and if one of the following applies: the officer of director provides a security for his or her undertaking, the Investment Company is insured against losses from any lawful advances, or a reasonable determination has been made that there is reason to believe the officer or director ultimately will be entitled to indemnification.
INSURANCE. Coverage for officers and director of the Adviser, Distributor and the Investment Company is provided under an Investment Management insurance policy issued by American International Specialty Lines Insurance Company, with excess coverage by Chubb custom Insurance Company, to Mutual of America Life Insurance Company et al. The aggregate limit of liability under the policy per year is $10 million, with a $200,000 deductible per entity insured and a $1,000 deductible for individual insureds.
BY-LAWS OF THE ADVISER. The By-Laws of Mutual of America Capital Management Corporation, the Investment Company's Adviser, provide for the indemnification by the Corporation of present and former directors and officers of the Corporation and of any organization for which service is rendered at the request of the Corporation and permits the advance payment of expenses in certain circumstances for covered persons in connection with suits by third parties and derivative suits. Each covered person must have acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. If in connection with a derivative suit a covered person shall have been adjudged to be liable to the Corporation, indemnification shall not be made unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is entitled to indemnity. Thus, the officers and directors of the fund and the Adviser are indemnified by the Adviser for their services in connection with the Investment Company to the extent set forth in the By-Laws.
BY-LAWS OF THE DISTRIBUTOR. The By-laws of Mutual of America Securities Corporation, the principal underwriter and distributor for the fund, provide for the indemnification by the Corporation of present and former directors and officers of the Corporation and of any organization for which service is rendered at the request of the Corporation and permits the advance payment of expenses in certain circumstances for covered persons in connection with suits by third parties and derivative suits. Each covered person must have acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. If in connection with a derivative suit a covered person shall have been adjudged to be liable to the Corporation, indemnification shall not be made unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is entitled to indemnity. Thus, the officers and directors of the Distributor are indemnified by the Distributor for their services in connection with the Investment Company to the extent set forth in the By-Laws.
UNDERTAKING. Insofar as indemnification for liability arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by its it against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
ITEM 26. BUSINESS AND OTHER CONNECTIONS OF THE INVESTMENT ADVISER
Mutual of America Capital Management corporation (the Adviser) is the investment adviser to the Investment Company and is registered as an investment adviser under the Investment Advisers Act of 1940. The names, addresses and positions with the Adviser of each director and officer of the Adviser are set forth below.
POSITIONS PRINCIPAL OCCUPATION
NAME WITH ADVISER DURING PAST TWO YEARS
---- ------------ ---------------------
Thomas J. Moran ................ Director, Chairman of President, Chief Executive Officer and
320 Park Avenue the Board Director, Mutual of America Life
NY, NY 10022
F. Harlan Batrus ............... Director Partner, Lazard Freres
30 Rockefeller Plaza
NY, NY 10020
Roger E. Birk .................. Director Chairman Emeritus, Merrill Lynch & Co. Inc.
Merrill Lynch
77 Broad Street
Red Bank, NJ 07701
Robert X. Chandler ............. Director Director, Development Office, Archdiocese of
Director, Development Office Boston
Archdiocese of Boston
2121 Commonwealth Ave.
Brighton, MA 02135
Nathaniel A. Davis ............. Director Vice President, Network Engineering
17680 Old Meadow Rd. Operations, Nextel Communications
McLean, VA 22102
Anthony F. Earley .............. Director Chairman, President and Chief Operating
Detroit Edison Company Officer, Detroit Edison Co.
2000 Second Avenue
Room 2407 WCB
Detroit, MI 48226
William T. Knowles ............. Director Consultant
Orr's Island, ME 04066
Walter A. McDougal ............. Director Former Chairman and President, Richmond
Garden City, NY 11530 Hill Savings Bank
James E. Quinn ................. Director Vice Chairman, Tiffany & Co.
727 Fifth Avenue
NY, NY 10022
Richard J. Ciecka .............. President and Chief Vice Chairman of the Board, Mutual of
320 Park Avenue Financial Officer; America Life, until October 1998
NY, NY 10022 Director
Manfred Altstadt ............... Senior Executive Vice Senior Executive Vice President and Chief
320 Park Avenue President and Chief Financial Officer of Mutual of America Life
NY, NY 10022 Financial Officer and American Life
Patrick A. Burns ............... Senior Executive Vice Senior Executive Vice President and General
320 Park Avenue President and Counsel of Mutual of America Life and
NY, NY 10022 General Counsel American Life
Amir Lear ...................... Executive Vice Senior Vice President, Mutual of America
320 Park Avenue President and Life, until October 1998
NY, NY 10022 Assistant to the
President and CEO
Andrew L. Heiskell ............. Executive Vice Executive Vice President of the Adviser
320 Park Avenue President
NY, NY 10022
Joseph Brunken ................. Senior President Senior Vice President of the Adviser since
320 Park Avenue November, 1997; prior thereto, Vice
NY, NY 10022 President, Nikko Capital Management
(USA), Inc.
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POSITIONS PRINCIPAL OCCUPATION
NAME WITH ADVISER DURING PAST TWO YEARS
---- ------------ ---------------------
Mary E. Canning ................ Senior Vice President Senior Vice President of the Adviser since May
320 Park Avenue 1999; prior thereto, Managing
NY, NY 10022 Director/Portfolio Manager at Phoenix Duff &
Phelps
s
Susan J. Ferber ................ Senior Vice President Senior Vice President of the Adviser since May
320 Park Avenue 1999; prior thereto, Vice President of Business
NY, NY 10022 Development, Argus Investors' Counsel
Jon J. LaBerge ................. Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Thomas Larsen ............... Executive Vice Executive Vice President of the Adviser since
320 Park Avenue President June 1998; prior thereto, Senior
NY, NY 10022 Vice President, Desai Capital Management
Stanley M. Lenkowicz ........ Senior Vice President, Senior Vice President and Deputy General
320 Park Avenue Deputy General Counsel, Mutual of America Life
NY, NY 10022 Counsel & Secretary
Nancy McAvey ................ Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
John P. Middleton ........... Senior Vice President Senior Vice President of the Adviser since
320 Park Avenue May 1999; prior thereto, Vice President,
NY, NY 10022 Raymond James & Associates
Paul Travers ................ Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Gary P. Wetterau ............ Senior Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
David Wood .................. Senior Vice President Senior Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Aline Couture ............... Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Doris Klug .................. Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Jonathan Lee ................ Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
Robert H. Stewart ........... Vice President Vice President of the Adviser
320 Park Avenue
NY, NY 10022
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Each of Palley-Needelman Asset Management, Inc. ("Palley-Needelman"), Oak Associates, Ltd. ("Oak Associates") and Fred Alger Management, Inc. ("Alger Management") is a subadviser for a portion of the Active Assets of the All America Fund allocated to it. Each subadviser is registered as an investment adviser under the Investment Advisers Act of 1940. The names, addresses and positions of each director and officer of each subadviser are incorporated by reference to the Form ADV of the subadviser filed with the Securities and Exchange Commission, as set forth below.
Palley-Needelman Asset Management, Inc., Form ADV, SEC File No. 801-9755.
Oak Associates, Ltd., Form ADV, SEC File No. 801-23632.
Fred Alger Management, Inc., Form ADV, SEC File No. 801-06709.
ITEM 27. PRINCIPAL UNDERWRITER
(a) Mutual of America Life Insurance Company, the principal underwriter of the Registrant, acts as depositor and principal underwriter of Mutual of America Separate Account No. 2, and as principal underwriter of The American Separate Account No. 2 and The American Separate Account No. 3 of The American Life Insurance Company of New York.
(b) The name, business address and position of each senior officer and director of Mutual of America are as follows:
NAME AND PRINCIPAL POSITIONS AND OFFICERS
BUSINESS ADDRESS WITH PRINCIPAL UNDERWRITER
---------------------- ------------------------------------------------------
DIRECTORS
Clifford L.
Alexander, Jr. Director
Washington, D.C.
Patricia A. Cahill Director
Denver, Colorado
Roselyn P. Epps, M.D. Director
Bethesda, Maryland
Dudley H. Hafner Director
Dallas, Texas
Earle H. Harbison, Jr. Director
St. Louis, Missouri
Frances R. Hesselbein Director
New York, New York
William Kahn Director
St. Louis, Missouri
LaSalle D. Leffall,
Jr., M.D. Director
Washington, D.C.
Michael A. Pelavin Director
Flint, Michigan
Fioravante G. Perrotta Director
New York, New York
Francis H. Schott Director
New York, New York
O. Stanley Smith, Jr. Director
Columbia, South Carolina
Sheila M. Smythe Director
Valhalla, New York
Elie Wiesel Director
New York, New York
OFFICERS-DIRECTORS
William J. Flynn Chairman of the Board
Thomas J. Moran President and Chief Executive Officer
Manfred Altstadt Senior Executive Vice President and Chief
Financial Officer
Patrick A. Burns Senior Executive Vice President and General Counsel
Salvatore R. Curiale Senior Executive Vice President, Technical
Operations
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NAME AND PRINCIPAL POSITIONS AND OFFICERS
BUSINESS ADDRESS WITH PRINCIPAL UNDERWRITER
---------------------- ------------------------------------------------------
OTHER OFFICERS
Diane Aramony Senior Vice President, Corporate Secretary and
Assistant to the Chairman
Meyer Baruch Senior Vice President, State Compliance and
Government Regulations since July 1996; prior
thereto, Assistant Chief of the Life Insurance
and Companies Bureau of The New York State Insurance
Department
Deborah Swinford Becker Senior Vice President and Associate General Counsel
Nicholas Branchina Senior Vice President and Associate Treasurer
William Breneisen Executive Vice President, Office of Technology
Jeremy J. Brown Executive Vice President and Chief Actuary since
April 1997; prior thereto Consulting Actuary with
Milliman & Robertson
Allen J. Bruckheimer Senior Vice President and Associate Treasurer
Patrick Burke Senior Vice President, Special Markets
Sean Carroll Senior Vice President, Facilities Management
William Conway Executive Vice President, Marketing and Corporate
Communications
William A. DeMilt Executive Vice President, Real Estate Management
Warren A. Essner Senior Vice President, Corporate Services
James Flynn Senior Vice President, Marketing
Michael Gallagher Senior Vice President, Direct Response and Technical
Boca Raton, FL Communications
Harold J. Gannon Senior Vice President, Corporate Tax
Gordon Gaspard Senior Vice President, Technical Services
Robert Giaquinto Senior Vice President, MIS Operations
Thomas E. Gilliam Executive Vice President and Assistant to the
President and Chief Executive Officer
John R. Greed Executive Vice President and Treasurer since May 1997;
Senior Vice President and Deputy Treasurer July 1996
to May 1997; prior thereto, partner, Arthur Andersen
LLP
Thomas A. Harwood Senior Vice President, Competition and Asset Retention
Sandra Hersko Senior Vice President, Technical Administration
Edward J.T. Kenney Senior Vice President and Assistant to the President
and Chief Executive Officer
Gregory A. Kleva, Jr. Executive Vice President and Deputy General Counsel
Robert Kordecki Senior Vice President, National Accounts
Stanley M. Lenkowicz Senior Vice President and Deputy General Counsel
Daniel LeSaffre Senior Vice President, Human Resources and Training
Robert W. Maull Senior Vice President and Corporate Actuary
George L. Medlin Executive Vice President, Internal Audit
Lynn M. Nadler Senior Vice President, Training -- Boca Raton
Boca Raton, FL
Roger F. Napoleon Senior Vice President and Associate General Counsel
James Peterson Senior Vice President, Training -- New York and
Leadership Development
William Rose Senior Vice President, Field Operations
Dennis J. Routledge Senior Vice President, LAN/Telecommunications
Robert W. Ruane Senior Vice President, Corporate Communications
and Direct Response
William G. Shannon Senior Vice President, Individual Financial Planning
Walter W. Siegel Senior Vice President and Actuary
Joan M. Squires Senior Vice President, Business Applications
Eldon Wonacott Senior Vice President, Field Administration
Raymond Yeager Senior Vice President, MIS Operations
Boca Raton, FL
The business address of all officers and directors is 320 Park Avenue, New
York, New York 10022, unless otherwise noted.
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(c) Not applicable.
ITEM 28. LOCATION OF ACCOUNTS AND RECORDS
The records required to be maintained by Section 31(a) of the Investment Company Act of 1940 and Rules 31a-3 promulgated thereunder, will be maintained by the Adviser at its offices at 320 Park Avenue, New York, New York 10022 or with its custodian.
ITEM 29. MANAGEMENT SERVICES
Not applicable.
ITEM 30. UNDERTAKINGS
Not applicable.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the Investment Company Act of 1940, the registrant certifies that it meets all of the requirements for effectiveness of this post-effective amendment to its Registration Statement pursuant to Rule 485(b) of the Securities Act of 1933 and has duly caused this post-effective amendment to its Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, the State of New York, the 4th day of June, 1999.
MUTUAL OF AMERICA INVESTMENT CORPORATION
By: /s/ DOLORES J. MORRISSEY
--------------------------------
DOLORES J. MORRISSEY
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PRESIDENT AND CEO
Pursuant to the requirements of the Securities Act of 1933, this post-effective amendment to its Registration Statement has been signed below by the following persons in the capacities on June 4, 1999.
PRINCIPAL EXECUTIVE OFFICER:
By: /s/ DOLORES J. MORRISSEY
--------------------------
DOLORES J. MORRISSEY
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PRESIDENT AND CEO
PRINCIPAL FINANCIAL OFFICER and PRINCIPAL ACCOUNTING OFFICER:
/s/ MANFRED ALTSTADT ----------------------------- MANFRED ALTSTADT |
DIRECTORS:
/s/ MANFRED ALTSTADT ----------------------------- MANFRED ALTSTADT /s/ DOLORES J. MORRISSEY ----------------------------- DOLORES J. MORRISSEY |
*By: /s/ MANFRED ALTSTADT
-------------------------
ATTORNEY-IN-FACT
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EXHIBIT INDEX
EXHIBIT
NUMBER PAGE
------- ----
1(a) Articles of Incorporation of Mutual of America Investment
Corporation (the "Investment Company")
1(b) Articles of Amendment, dated September 22, 1986
1(c) Articles Suplementary, dated July 25, 1988
1(d) Articles Supplementary, dated February 16, 1993
1(e) Articles Supplementary, dated October 4, 1993
1(f) Articles Supplementary, dated April 5, 1994
1(g) Articles Supplementary, dated April 13, 1995
1(h) Articles Supplementary, dated September 16, 1997
2(a) By-Laws of the Investment Company
2(b) Revision to Article II, Section 2.2 and Article III,
Section 3.4 of the By-Laws
2(c) Revision to Article III, Section 3.8 of the By-Laws
4(a) Investment Advisory Agreement, between the Investment
Company and Mutual of America Life Insurance Company
("Mutual of America"), as investment adviser
4(b) Assumption Agreement, between Mutual of America and Mutual
of America Capital Management Corporation (the "Adviser"),
as investment adviser
4(c) Supplement AA to Investment Advisory Agreement, between
the Investment Company and the Adviser
4(d) Supplement AE to Investment Advisory Agreement, between
the Investment Company and the Adviser
4(f) Subadvisory Agreement, between the Adviser and Fred Alger
Management, Inc.
4(g) Subadvisory Agreement, between the Adviser and Oak
Associates
4(h) Subadvisory Agreement, between the Adviser and
Palley-Needelman Asset Management, Inc.
7 Custody Agreement, between the Investment Company and The
Chase Manhattan Bank
9(a) Consent and Opinion of General Counsel for Equity Index,
All America, Aggressive Equity, Composite, Bond, Mid-Term
Bond, Short-Term Bond and Money Market Funds, as restated
10(c) Powers of Attorney of Ms. Morrissey and Messrs. Altstadt,
Flanagan, Mertz, Needham and Nolan
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Exhibit 1(a)
ARTICLES OF INCORPORATION
OF
MUTUAL OF AMERICA INVESTMENT CORPORATION
The undersigned Daniel J. Robins, whose office address is 666 Fifth Avenue, New York, New York 10103 being an adult over eighteen years of age, does hereby form a corporation under the General Laws of the State of Maryland.
ARTICLE 1
NAME
The name of the corporation (hereinafter referred to as the "Corporation") shall be Mutual of America Investment Corporation.
ARTICLE II
DURATION
The period of its duration is perpetual.
ARTICLE III
PURPOSE
The purposes for which the Corporation is formed are:
(a) To engage generally in the business of investing, reinvesting, owning, holding and trading in securities (as defined in the Investment Company Act of 1940, as from time to time amended (referred to herein as the "Investment Company Act")) or repurchase agreements to issue redeemable securities, and, in connection therewith, to hold all or part of its assets in cash, and generally engage in the business of an open-end investment company of the management type;
(b) To exercise all rights, powers, and privileges of ownership or interest in all securities or repurchase agreements held by the Corporation, including the right to vote thereon and otherwise act with respect thereto and to do all acts for the preservation, protection, improvement and enhancement in the value of all such securities and repurchase agreements.
(c) To issue and sell shares of its own capital stock in such amounts and on such terms and conditions, for such purposes and for such amount or kind of consideration (including, without limitation, securities) now or hereafter permitted by the Investment Company Act, the laws of the State of Maryland and by these Articles of Incorporation, as its Board of Directors may determine.
(d) To redeem, repurchase, or otherwise acquire, hold, dispose of, resell, transfer, reissue or cancel (all without the vote or consent of the shareholders of the Corporation) shares of its capital stock, in any manner and to the extent now or hereafter permitted by the laws of the State of Maryland and by these Articles of Incorporation.
(e) To do everything necessary, suitable or proper for the accomplishment of any purpose or the attainment of any object or the furtherance of any power herein set forth, either alone or in association with others, and to take any action incidental or appurtenant to or growing out of or connected with the aforesaid business or purposes, objects or powers.
(f) In general, to carry on any other lawful business and to have and exercise all the rights, powers and privileges and conferred upon corporation by the laws of the State of Maryland as in force from time to time.
The Corporation shall have the power to conduct and carry on its business, or any part thereof, and to have one or more offices, and to exercise any or all of its corporate powers and rights, in the State of Maryland, in any other states, territories, districts, colonies and dependencies of the United States, and in any or all foreign countries.
The foregoing clauses shall be construed both as objects and powers, and the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the general powers of the Corporation.
ARTICLE IV
PRINCIPAL OFFICE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in this State is c/o The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202. The name of the resident agent of the Corporation in this State is The Corporation Trust Incorporated, a corporation of this State, and the post office address of the resident agent is 32 South Street, Baltimore, Maryland 21202.
ARTICLE V
CAPITAL STOCK
Section 5.1. The total number of shares of capital stock of all classes which the Corporation shall have authority to issue is one hundred million shares, par value $.01 per share, (the "Shares"), with an aggregate par value of $1,000,000. Forty million of such Shares may be issued in the following classes, each class comprising the number of shares and having the designations indicated; subject, however, to the authority herein granted to the Board of Directors to change the designation of any class and to increase or decrease any such number of Shares:
Money Market Fund.................................... Ten Million Stock Fund........................................... Ten Million Bond Fund............................................ Ten Million Composite Fund....................................... Ten Million |
The balance of sixty million Shares may be issued by the Board of Directors in such initial classes, or in any new class or classes, each comprising such number of Shares and having such preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption as shall be fixed and determined from time to time by resolution or resolutions providing for the issuance of such Shares adopted by the Board of Directors, to whom authority so to fix and determine the same is hereby expressly granted. In addition, the Board of Directors is hereby expressly granted authority to change the designation of any class and to increase or decrease the number of Shares of any class, but the number of Shares of any class shall not be decreased by the Board of Directors below the number of Shares thereof then outstanding.
Section 5.2. The Board of Directors may classify or reclassify any unissued Shares into one or more classes that may be established and designated from time to time. The Corporation may hold as treasury Shares, reissue for such consideration and on such terms as the Board of Directors may determine, or cancel, at their discretion from time to time, any shares of any class reacquired by the Corporation.
Section 5.3. All persons who shall acquire Shares of a class shall acquire the same subject to the provisions of these Articles of Incorporation and the Corporation's By-Laws as they may exist from time to time. The Shares of said classes and any Shares of any further class that may from time be established and designated by the Board of Directors (unless provided otherwise by the Board of Directors with respect to such further class at the time of establishing and designating such further class) shall have the following
relative preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption:
(a) Assets Belonging to Classes. All consideration received by the Corporation for the issue or sale of Shares of a particular class, together with all assets in which such consideration is invested or reinvested all income earnings, profits, and proceeds thereof, including any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds in whatever form the same may be, shall irrevocably belong to that class for all purposes, subject only to the rights of creditors, and shall be so recorded upon the books of account of the Corporation. Such consideration, assets, income, earnings, profits, and proceeds thereof, including any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds, in whatever from the same may be, together with any General Items allocated to that class as provided in the following sentence, are herein referred to as "assets belonging to" that class. In the event that there are any assets, income, earnings, profits, and proceeds thereof, funds, or payments which are not readily identifiable as belonging to any particular class (collectively "General Items"), such General Items shall be allocated by or under the supervision of the Board of Directors, to and among any one or more of the classes established and designated from time to time in such manner and on such basis as the Board of Directors, in its sole discretion, deems fair and equitable; and any General Items so allocated to a particular class shall belong to that class. Each such allocation by the Board of Directors shall be conclusive and binding for all purposes.
(b) Liabilities Belonging to Class. The assets belonging to each particular class shall be charged with the liabilities of the Corporation in respect of that class and all expenses, costs, charges and reserves attributable to that class, and any general liabilities, expenses, costs, charges or reserves of the Corporation which are not readily identifiable as belonging to any particular class shall be allocated and charged by or under the supervision of the Board of Directors to and among any one or more of the classes established and designated from time to time in such manner and on such basis as the Board of Directors, in its sole discretion, deems fair and equitable. The liabilities, expenses, costs, charges and reserves allocated and so charged to a class are herein referred to as "liabilities belonging to" that class. Each allocation of liabilities, expenses, costs, charges and reserves by the Board of Directors shall be conclusive and binding for all purposes.
(c) Dividends. Dividends and distributions on Shares of a particular class may be paid with such frequency, in such forms and in such amounts as the Board of Directors may from time to time determine. Dividends may be accrued daily or otherwise, after providing for actual and accrued liabilities belonging to that class,
pursuant to a standing resolution or resolutions adopted only once or with such frequency as the Board of Directors may determine.
All dividends on Shares of a particular class shall be paid only out of surplus or other lawfully available assets determined by the Board of Directors as belonging to such class. All dividends and distributions on Shares of a particular class shall be distributed pro rata to the holders of that class in proportion to the number of Shares of that class held by such holders at the date and time of record established for the payment of such dividends or distributions, except that in connection with any dividend or distribution program or procedure the Board of Directors may determine that no dividend or distribution shall be payable on Shares as to which the Shareholder's purchase order and/or payment have not been received by the time or times established by the Board of Directors under such program or procedure.
The Corporation intends to qualify as a "regulated investment company" under the Internal Revenue Code of 1954, as amended, or any successor or comparable statute thereto, and regulations promulgated thereunder. Inasmuch as the computation of net income and gains for Federal income tax purposes may vary from the computation thereof on the books of the Corporation, the Board of Directors shall have the power, in its sole discretion, to distribute in any fiscal year as dividends, including dividends designated in whole or in part as capital gains distributions, amounts sufficient, in the opinion of the Board of Directors, to enable the Corporation to qualify as a regulated investment company and to avoid liability of the Corporation for Federal income tax in respect of that year. However, nothing in the foregoing shall limit the authority of the Board of Directors to make distribution greater than or less than the amount necessary to qualify as a regulated investment company and to avoid liability of the Corporation for such tax. In furtherance, and not in limitation of the foregoing, in the event that a class of shares has a net capital loss for a fiscal year, and to the extent that a net capital loss for a fiscal year offsets net capital gains from one or more of the other classes, the amount to be deemed available for distribution to the class or classes with the net capital gain may be reduced by the amount offset.
Dividends and distributions may be made in cash, property or Shares, or a combination thereof, as determined by the Board of Directors or pursuant to any program that the Board of Directors may have in effect at the time for the election by each Shareholder of the mode of the making of such dividend or distribution to that Shareholder. Any such dividend or distribution paid in Shares will be paid at the net asset value thereof as defined in subsection 5.3(g).
(d) Liquidation. In the event of the liquidation or dissolution of the Corporation or of a particular class, the Shareholders of each class that has been established and designated and is being liquidated shall be entitled to receive, as a
class, when and as declared by the Board of Directors, the excess of the assets belonging to that class over the liabilities belonging to that class. The holders of Shares of any class shall not be entitled thereby to any distribution upon liquidation of any other class. The assets so distributable to the Shareholders of any particular class shall be distributed among such shareholders in proportion to the number of Shares of that class held by them and recorded on the books of the Corporation. The liquidation of any particular class in which there are Shares then outstanding may be authorized by vote of a majority of the Board of Directors then in office.
(e) Voting. On each matter submitted to a vote of the Shareholders, each holder of a Share shall be entitled to one vote for each Share standing in his or her name on the books of the Corporation, irrespective of the class thereof, and all outstanding Shares of all classes shall vote as a single class ("Single Class Voting"); provided, however, that (a) as to any matter with respect to which a separate vote of any class is required by the Investment Company Act or by the Maryland General Corporation Law or as to any matter that the Board of Directors determine, in its sole discretion, concerns only one or more particular class, a separate vote by that class shall apply in lieu of Single Class Voting as described above; (b) in the event that the separate vote requirements referred to in (a) above apply with respect to one or more classes, then, subject to (c) below, the Shares of all other classes shall vote as a single class; and (c) as to any matter which does not affect the interest of a particular class, only the holders of Shares of the one or more affected classes shall be entitled to vote.
(f) Redemption by Shareholder. Each holder of Shares of a particular class shall have the right to require the Corporation to redeem all or any part of the Shares of that class standing in the name of such holder on the books of the Corporation at a redemption price per share as in effect from time to time. The redemption price of Shares shall be equal to the net asset value per Share of that class (determined in accordance with subsection (g) of this Section 5.3) less such redemption charge, if any, as is determined by the Board of Directors. Redemption shall be conditional upon the Corporation having funds legally available therefor. Payment of the redemption price shall be in cash, provided, however, that if the Board of Directors determines, which determination shall be conclusive, that conditions exist which make payment wholly in cash unwise or undesirable, the Corporation may make payment wholly or partly in portfolio securities or in other assets belonging to the class of Shares being redeemed.
Notwithstanding the foregoing, the Corporation may postpone payment of the redemption price and may suspend the right of the holders of Shares of any class to require the Corporation to redeem Shares of that class during any period or at any time when and to the extent permissible under the Investment Company Act.
(g) Net Asset Value per Share. The net asset value per Share of any class shall be the quotient obtained by dividing the value of the net assets of that class (being the value of the assets belonging to that class less the liabilities belonging to that class) by the total number of Shares of that class outstanding, as determined by or pursuant to the direction of the Board of Directors from time to time, all determined in accordance with generally accepted accounting principles and not inconsistent with the Investment Company Act.
(h) Equality. All Shares of each particular class shall represent an equal proportionate interest in the assets belonging to that class (subject to the liabilities belonging to that class), and each Share of any particular class shall be equal to each other Share of that class. The Board of Directors may from time to time divide or combine the Shares of any particular class into a greater or lesser number of Shares of that class without thereby changing the proportionate beneficial interest in the assets belonging to that class or in any way affecting the rights of outstanding Shares of any other class.
(i) Conversion or Exchange Rights. Subject to compliance with the requirements of the Investment Company Act, the Board of Directors shall have the authority to provide that the holders of Shares of any class shall have the right to convert or exchange said Shares into shares of one or more other classes or Shares in accordance with such requirements and procedures as may be established by the Board of Directors.
ARTICLE VI
ISSUE OF NEW STOCK
Section 6.1 Issuance. The Board of Directors is authorized to issue and sell from time to time (without the necessity of offering the same or any part thereof to existing shareholders) all or any portion or portions of the entire authorized but unissued Shares of the Corporation, and all or any portion or portions of the Shares of the Corporation from time to time in its treasury, for cash or for any other lawful consideration or considerations and on or for any terms, conditions, or prices consistent with the provisions of law and of the Articles of Incorporation and By Laws of the Corporation at the time in force; provided, however, that in no event shall the Shares of the Corporation having a par value be issued or sold for a consideration or considerations less in amount or value than the par value of the Shares so issued or sold, and provided further that in no event shall any Shares of the Corporation be issued or sold for a consideration (which shall be net to the Corporation after underwriting discounts or commissions) less in amount or value than the net asset value of the Shares so issued or sold.
Section 6.2. Fractional Shares. The Corporation may issue and sell fractions of Shares having pro rata all the rights of full Shares including, without limitation, the right to vote and to receive dividends, and wherever the words "share" or "shares" are used in these Articles or in the By Laws they shall be deemed to include fractions of Shares, where the context does not clearly indicate that only full Shares are intended.
Section 6.3. No holder of Shares shall, as such holder, have any right to purchase or subscribe for any Shares or any other security of the Corporation which it may issue or sell other than such right, if any, as the Board of Directors in its discretion may determine.
ARTICLE VII
DIRECTORS
Section 7.1. The number of directors constituting the Board of Directors shall be five (5), which number may be changed in accordance with the By Laws of the Corporation but shall never be less than three. The names of the persons who shall act as directors until the first annual meeting of the Corporation and until their successors have been duly chosen and qualified are:
Harold W. Luebs Calvin E. Green Mary E. Ruddy Carmi Schwartz William H. Hackett
Section 7.2. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors which shall have and may exercise all powers of the Corporation except those powers which are by law, by these Articles of Incorporation or by the By Laws conferred upon or reserved to the shareholders. In furtherance and not in limitation of the powers conferred by law, the Board of Directors shall have the power:
(i) to make alter, amend, and repeal bylaws of the Corporation;
(ii) from time to time to set apart out of any assets of the Corporation otherwise available for dividends a reserve or reserves for working capital or for any other proper purpose or purposes, and to reduce, abolish or add to any such reserve or reserves from time to time as said Board of Directors may deem to be in the best interest of the Corporation; and to determine in its discretion what part of the assets of the Corporation available for dividends in excess of such reserve or
reserves shall be declared in dividends and paid to the shareholders of the Corporation.
Section 7.3. Any determination made in good faith and, so far as accounting matters are involved, in accordance with generally accepted accounting principles, by or pursuant to the direction of the Board of Directors, as to the amount of the assets, debts, obligations or liabilities of the Corporation, as to the amount of any reserves or charges set up and the propriety thereof, as to the time or purpose for creating such reserves or charges, as to the use, alteration or cancellation of any reserves or charges (whether or not any debt, obligation or liability for which such reserves or charges shall have been created, shall have been paid or discharged or shall be then or thereafter required to be paid or discharged), as to the establishment or designation of procedures or methods to be employed for valuing any asset of the Corporation and as to the value of any asset, as to the allocation of any asset of the Corporation to a particular class or classes of Shares, as to the funds available for the declaration of dividends, and as to the declaration of dividends, as to the charging of any liability of the Corporation to a particular class or classes of Shares, as to the number of outstanding Shares of any class or classes, as to the estimated expense to the Corporation in connection with purchases or redemptions of its Shares, as to the ability to liquidate investments in orderly fashion, or as to any other matters relating to the issue, sale, purchase or redemption or other acquisition or disposition of investments or Shares, or the determination of the net asset value per Share of any class, shall be final and conclusive.
Section 7.4. Specifically and without limitation of subsection (3) of this Article Seventh but subject to the exception therein prescribed, the Corporation may enter into management or advisory, underwriting, distribution and administration contracts and other contracts, and may otherwise do business, with Mutual of America Life Insurance Company, and any parent, subsidiary or affiliate of such firm or any affiliate of any such affiliate, or the stockholders, directors, officers and employees thereof, and may deal freely with one another notwithstanding that the Board of Directors of the Corporation may be composed in part of directors, officers or employees of such firm and/or its parents, subsidiaries or affiliates and that officers of the Corporation may have been, are or become directors, officers, or employees of such firm and/or its parents, subsidiaries or affiliates, and neither such management or advisory, underwriting, distribution or administration contracts nor any other contract or transaction between the Corporation and such firm and/or its parents, subsidiaries or affiliates shall be invalidated or in any way affected thereby, nor shall any director or officer of the Corporation be liable to the Corporation or to any stockholder or creditor thereof or to any person for any loss incurred by it or him under or by reason of such contract or transaction; provided that nothing herein shall protect any director or officer of the Corporation against any liability to the Corporation or to its security holders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office; and provided always that such contract or transaction shall have been on terms that were not unfair to the Corporation at the time at which it was entered into.
ARTICLE VIII
VOTING REQUIREMENTS
Section 8.1. Notwithstanding any provision of law requiring a greater proportion than a majority of the votes of all classes (or of any class entitled to vote thereon as a separate class) to take or authorize any action, in accordance with the authority granted by Section 2-104 of the Maryland General Corporation Law, the Corporation is hereby authorized to take such action upon the concurrence of a majority of the aggregate number of Shares (or a majority of the aggregate number of Shares of a class entitled to vote thereon as a separate class) entitled to vote thereon.
Section 8.2. The right to cumulate votes in the election of directors is expressly prohibited.
ARTICLE X
INDEMNIFICATION
To the maximum extent permitted by the General Corporation Law of the State of Maryland as from time to time amended, the Corporation shall indemnify its currently acting and its former directors and officers and those persons who, at the request of the Corporation, serve or have served another corporation, partnership, joint venture, trust or other enterprise in one or more of such capacities.
ARTICLE XI
AMENDMENT
The Corporation reserves the right from time to time to alter, amend or repeal any provisions contained in these Articles of Incorporation, now or hereafter authorized by law, including any amendment which alters contract rights of any outstanding Shares, at any time in the manner now or hereafter prescribed by the laws of the State of Maryland, and all rights conferred herein upon the Corporation's shareholders, directors and officers are granted subject to such reservation.
In Witness Whereof, the undersigned incorporator of Mutual of America Investment Corporation who executed the foregoing Articles of Incorporation hereby acknowledges the same to be his act.
Dated the 14th day of February, 1986
/s/ Daniel J. Robins ------------------------ Daniel J. Robins 666 Fifth Avenue New York, New York 10103 |
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
SUBSCRIBED AND SWORN to before me
this 14th day of February, 1986
/s/ Ann F. Cannon
-----------------------------
Notary Public
|
My commission expires ____________________
Exhibit 1(b)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES OF AMENDMENT
Mutual of America Investment Corporation, a Maryland corporation having its principal office in Baltimore City, Maryland (hereinafter called the Corporation), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: The charter of the Corporation is hereby amended by striking out
Section 5.1 of the Articles of Incorporation and inserting in lieu thereof the
following:
Section 5.1. The total number of shares of capital stock of all classes which the Corporation shall have authority to issue to two hundred million shares, par value $.01 per share, (the "Shares"), with an aggregate par value of $2,000,000. Forty million of such Shares may be issued in the following classes, each class comprising the number of shares and having the designations indicated; subject, however, to the authority herein granted to the Board of Directors to change the designation of any class and to increase or decrease any such number of shares:
Money Market Fund Ten Million Stock Fund Ten Million Bond Fund Ten Million Composite Fund Ten Million |
The balance of one hundred sixty million Shares may be issued by the Board of Directors in such initial classes, or in any new class of classes, each comprising such number of Shares and having such preferences, rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption as shall be fixed and determined from time to time by resolution or resolutions providing for the issuance of such Shares adopted by the Board of Directors, to whom authority so to fix and determine the same is hereby expressly granted. In addition, the Board of Directors, is hereby expressly granted authority to change the designation of any class and to increase or decrease the number of Shares of any class, but the number of Shares of any class shall not be decreased by the Board of Directors below the number of Shares thereof then outstanding.
SECOND: The amendment to the charter of the Corporation herein made was duly approved by unanimous written consent of the board of directors effective as of September 12, 1986; and that at the time of the approval by the directors there were no shares of stock of the Corporation entitled to vote on the matter either outstanding or subscribed for.
THIRD: (a) The total number of shares of all classes of stock of the Corporation heretofore authorized is one hundred million (100,000,000) of the par value of one cent ($.01) each, and of the aggregate par value of one million Dollars ($1,000,000).
(b) The total number of shares of all classes of stock of the Corporation as increased is two hundred million (200,000,000) shares of the par value of one cent ($.01) each and of the aggregate par value of two million dollars ($2,000,000).
(c) Set forth in Article FIRST is a description as amended, of each class of stock of the Corporation including the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption.
FOURTH: These articles of amendment shall become effective on the date of filing.
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these articles to be signed in its name and on its behalf by its President and witnessed by its Secretary on September 22, 1986.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By /s/ Dwight K. Bartlett, III
------------------------------------
President
|
Witness:
/s/ Stephanie J. Kopp
---------------------------
Secretary
|
THE UNDERSIGNED, President of Mutual of America Investment Corporation, who executed on behalf of said corporation the foregoing Articles of Amendment, of which this certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles of Amendment to be the corporate act of said corporation and further certifies that, to the best of his knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Dwight K. Bartlett, III
-----------------------------------
|
Exhibit 1(c)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
Mutual of America Investment Corporation, a Maryland corporation having its principal office in Baltimore, Maryland (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: The Board of Directors of the Corporation, at a meeting duly convened and held on May 3, 1988, adopted a resolution increasing the aggregate number of shares of capital stock, par value $.01 per share (the "Shares"), and the number of Shares of each class, that the Corporation is authorized to issue, as follows:
(i) The total number of shares of all classes that the Corporation has authority to issue were 200,000,000 before the increase, and 1,000,000,000 as increased.
(ii) The number of shares of stock of each class are as follows, subject, however, to the authority granted in the Articles of Incorporation to the Board of Directors to change the designation of any class and to increase or decrease any such number of shares:
Before the Increase As Increased
------------------- ------------
Money Market Fund 10,000,000 25,000,000
Stock Fund 10,000,000 400,000,000
Bond Fund 10,000,000 25,000,000
Composite Fund 10,000,000 200,000,000
|
The balance of undesignated shares may be issued by the Board of Directors in such initial classes, or any new class of classes, each comprising such number of shares and having such preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption as shall be fixed and determined from time to time by resolution or resolutions providing for the issuance of such shares adopted by the Board of Directors, to whom authority so to fix and determine the same is in the Articles of Incorporation expressly granted. In addition, the Board of Directors is in the Articles of Incorporation expressly granted authority to change the designation of any class and to increase or decrease the number of shares of any class, but the number of shares of any class shall not be decreased by the Board of Directors below the number of shares thereof then outstanding.
(iii) The par value of the shares of stock of each class, both before the increase, and as increased, is $.01 per share.
(iv) The aggregate par value of all the shares of all classes was $2,000,000 before the increase, and is $10,000,000 as increased.
SECOND: The Corporation is registered as an open-end company under the Investment Company Act of 1940.
THIRD: The total number of shares of capital stock that the Corporation has authority to issue has been increased by the Board of Directors in accordance with Section 2-105(c) of the Maryland General Corporation Law.
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these articles to be signed in its name and on its behalf by its President and witnessed by its Secretary on 25th of July, 1988.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By /s/ Dwight K. Bartlett, III
------------------------------------
President
|
Witness:
/s/ Stephanie J. Kopp
----------------------------
Secretary
|
THE UNDERSIGNED, President of Mutual of America Investment Corporation, who executed on behalf of said corporation the foregoing Articles Supplementary, of which this certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles Supplementary to be the corporate act of said corporation and further certifies that, to the best of his knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Dwight K. Bartlett, III -------------------------------- |
Exhibit 1(d)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
MUTUAL OF AMERICA INVESTMENT CORPORATION, a Maryland corporation having its principal office in Baltimore, Maryland (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: The Corporation is an open-end company registered as such under the Investment Company Act of 1940, as amended (the "1940 Act"), with authority to issue an aggregate amount of 1,000,000,000 shares of capital stock and to issue the number of shares of stock of each class as follows:
Money Market Fund.......................................25,000,000 Stock Fund.............................................400,000,000 Bond Fund...............................................25,000,000 Composite Fund.........................................200,000,000 |
SECOND: All shares of the Corporation's capital stock have a par value of $.01 per share. The aggregate par value of all the shares of all classes of the Corporation's capital stock is Ten Million Dollars ($10,000,000).
THIRD: The Board of Directors of the Corporation, acting in accordance with Section 2-105(c) of the General Corporation Law of the State of Maryland, hereby increases the number of authorized shares of each of the following classes of the Corporation's capital stock as follows:
Before the Increase As Increased
------------------- ------------
Money Market Fund 25,000,000 50,000,000
Bond Fund 25,000,000 200,000,000
|
FOURTH: The Board of Directors of the Corporation, acting in accordance with Section 2-105(c) of the General Corporation Law of the State of Maryland, hereby decreases the number of authorized shares of each of the following classes of the Corporation's capital stock as follows:
Before the Decrease As Decreased
------------------- ------------
Stock Fund 400,000,000 300,000,000
Composite Fund 200,000,000 100,000,000
|
FIFTH: The Board of Directors of the Corporation, acting in accordance with Section 2-105(c) of the General Corporation Law of the State of Maryland, hereby designates the following additional classes of the Corporation's capital and authorizes the issuance of shares for each of the additional classes of the Corporation's capital stock as follows:
Number of Authorized Shares
---------------------------
Equity Index Fund 75,000,000
Short-Term Bond Fund 50,000,000
Mid-Term Bond Fund 50,000,000
|
SIXTH: All of the additional shares of the Money Market Fund and the Bond Fund and all of the newly authorized shares of each of the newly designated Equity Index Fund, Short-Term Bond Fund and Mid-Term Bond Fund shall have the powers, preferences and voting or other special rights, and the qualifications, restrictions and limitations set forth in the Corporation's charter, as amended, and as required by the 1940 Act.
SEVENTH: All of the additional shares of the Money Market Fund and the Bond Fund and all of the newly authorized shares of each of the newly designated Equity Index Fund, Short-Term Bond Fund and Mid-Term Bond Fund shall have a par value of $.01 per share.
EIGHTH: The aggregate par value of all the shares of all classes, before the occurrence of the events as set forth in Articles Third, Fourth and Fifth was, and upon the occurrence of the events set forth in Articles Third, Fourth and Fifth is, Ten Million Dollars ($10,000,000).
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these presents to be signed in its name and on its behalf by its President and attested by its Secretary on February 16, 1993.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By: /s/ Dolores J. Morrissey
---------------------------------
Dolores J. Morrissey
President
Attest:
/s/ Stephanie J. Kopp
------------------------
Stephanie J. Kopp
Secretary
|
THE UNDERSIGNED, President of MUTUAL OF AMERICA INVESTMENT CORPORATION, who executed on behalf of said corporation the foregoing Articles Supplementary to the Charter, of which this Certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles Supplementary to the Charter to be the corporate act of said corporation and further certifies that, to the best of his knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Dolores J. Morrissey ------------------------ |
Exhibit 1(e)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
Mutual of America Investment Corporation, a Maryland corporation having its principal office in Baltimore, Maryland (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: In accordance with Section 2-105(c) of Maryland General Corporation Law, The Board of Directors of the Corporation, at a meeting duly convened and held on September 21, 1993, adopted a resolution increasing the aggregate number of shares of capital stock, par value $.01 per share (the "Shares"), and the number of Shares of certain classes, that the Corporation is authorized to issue, as follows:
(i) The total number of Shares of all classes that the Corporation has authority to issue were 1,000,000,000 before the increase, and 2,000,000,000 as increased.
(ii) The number of shares of stock of each class are as follows, subject, however, to the authority granted in the Articles of Incorporation to the Board of Directors to change the designation of any class and to increase or decrease any such number of shares:
Before the Increase As Increased
------------------- ------------
Money Market Fund 50,000,000 100,000,000
Stock Fund 300,000,000 500,000,000
Bond Fund 200,000,000 200,000,000 (no change)
Composite Fund 100,000,000 150,000,000
Equity Index Fund 75,000,000 75,000,000 (no change)
Short-Term Bond Fund 50,000,000 50,000,000 (no change)
Mid-Term Bond Fund 50,000,000 75,000,000
|
The balance of undesignated shares may be issued by the Board of Directors in such initial classes, or any new class of classes, each comprising such number of shares and having such preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption as shall be fixed and determined from time to time by resolution or resolutions providing for the issuance of such shares adopted by the Board of Directors, to whom authority so to fix and determine the same is in the Articles of Incorporation expressly granted. In addition, the Board of Directors is in the Articles of Incorporation expressly granted authority to change the designation of any class and to increase or decrease the number of shares of any class, but the number of shares of any class shall not be decreased by the Board of Directors below the number of shares thereof then outstanding.
SECOND: The par value of all Shares of the Corporation's capital stock of all classes, before the occurrence of events set forth in Article First was, and upon the occurrence of the events set forth in Article First, is $.01 per share.
THIRD: The aggregate par value of all the Shares of the Corporation's capital stock of all classes before the occurrence of the events set forth in Article First was Ten Million Dollars ($10,000,000) and upon the occurrence of the events set forth in Article First is Twenty Million Dollars ($20,000,000).
FOURTH: The Corporation is registered as an open-end company under the Investment Company Act of 1940.
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these articles to be signed in its name and on its behalf by its President and attested by its Secretary on October 4, 1993.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By /s/ Dolores J. Morrissey
------------------------------------
Dolores J. Morrissey
President
ATTEST:
/s/ Stephanie J. Kopp
----------------------------
Stephanie J. Kopp
Secretary
|
THE UNDERSIGNED, President of Mutual of America Investment Corporation, who executed on behalf of said corporation the foregoing Articles Supplementary, of which this certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles Supplementary to be the corporate act of said corporation and further certifies that, to the best of her knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Dolores J. Morrissey
----------------------------
Dolores J. Morrissey
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Exhibit 1(f)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
MUTUAL OF AMERICA INVESTMENT CORPORATION, a Maryland corporation having its principal office in Baltimore, Maryland (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: The Corporation is an open-end company registered as such under the Investment Company Act of 1940, as amended (the "1940 Act"), with authority to issue an aggregate amount of 2,000,000,000 shares of capital stock and to issue the number of shares of stock of each class as follows:
Money Market Fund..................................100,000,000 Stock Fund.........................................500,000,000 Bond Fund..........................................200,000,000 Composite Fund.....................................150,000,000 Equity Index Fund...................................75,000,000 Short-Term Bond Fund................................50,000,000 Mid-Term Bond Fund..................................75,000,000 |
SECOND: All shares of the Corporation's capital stock have a par value of $.01 per share. The aggregate par value of all the shares of all classes of the Corporation's capital stock is Twenty Million Dollars ($20,000,000).
THIRD: The Board of Directors of the Corporation, acting in accordance with the Corporation's Articles of Incorporation, hereby designates that the name of the Stock Fund be changed to the All America Fund, such change to become effective upon the Corporation's Post-Effective Amendment to its Registration being declared effective by the Securities and Exchange Commission.
FOURTH: The newly designated shares of the All America Fund, shall have the same powers, preferences and voting or other special rights, and the qualifications, restrictions and limitations set forth in the Corporation's Articles of Incorporation, as amended, and as required by the 1940 Act as the previously designated shares of the Stock Fund.
FIFTH: The Board of Directors of the Corporation, acting in accordance with Section 2-105(c) of the General Corporation Law of the State of Maryland, hereby designates the following additional class of the Corporation's capital and authorizes the issuance of shares for the additional class of the Corporation's capital stock as follows:
SIXTH: All of the newly authorized shares of the newly designated Aggressive Equity Fund shall have the powers, preferences and voting or other special rights, and the qualifications, restrictions and limitations set forth in the Corporation's Articles of Incorporation, as amended, and as required by the 1940 Act.
SEVENTH: All of the newly authorized shares of the newly designated Aggressive Equity Fund shall have a par value of $.01 per share.
EIGHTH: The aggregate par value of all the shares of all classes, before the occurrence of the events as set forth in Articles Third, Fourth and Fifth was, and upon the occurrence of the events set forth in Articles Third, Fourth and Fifth is, Twenty Million Dollars ($20,000,000).
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these presents to be signed in its name and on its behalf by its Senior Executive Vice President and attested by its Secretary on April 5, 1994.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By: /s/ Manfred Altstadt
------------------------------------
Manfred Altstadt
Senior Executive Vice President
Attest:
/s/ Stephanie J. Kopp
--------------------------
Stephanie J. Kopp
Secretary
|
THE UNDERSIGNED, Senior Executive Vice President of Mutual of America Investment Corporation, who executed on behalf of said corporation the foregoing Articles Supplementary, of which this certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles Supplementary to be the corporate act of said corporation and further certifies that, to the best of her knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Manfred Altstadt
--------------------------
Manfred Altstadt
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Exhibit 1(g)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
Mutual of America Investment Corporation, a Maryland corporation having its principal office in Baltimore, Maryland (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: In accordance with Section 2-105(c) of Maryland General Corporation Law, The Board of Directors of the Corporation, at a meeting duly convened and held on April 11, 1995, adopted a resolution increasing the aggregate number of shares of capital stock, par value $.01 per share (the "Shares"), and the number of Shares of certain classes, that the Corporation is authorized to issue, as follows:
(i) The total number of Shares of all classes that the Corporation has authority to issue were 2,000,000,000 before the increase, and 3,000,000,000 as increased.
(ii) The number of shares of stock of each class are as follows, subject, however, to the authority granted in the Articles of Incorporation to the Board of Directors to change the designation of any class and to increase or decrease any such number of shares:
Before the Increase As increased
------------------- ------------
Money Market Fund 100,000,000 100,000,000 (no change)
All America Fund 500,000,000 500,000,000 (no change)
Bond Fund 200,000,000 250,000,000
Composite Fund 150,000,000 200,000,000
Equity Index Fund 75,000,000 75,000,000 (no change)
Short-Term Bond Fund 50,000,000 50,000,000 (no change)
Mid-Term Bond Fund 75,000,000 75,000,000 (no change)
Aggressive Equity Fund 500,000,000 500,000,000 (no change)
|
The balance of undesignated shares may be issued by the Board of Directors in such initial classes, or any new class of classes, each comprising such number of shares and having such preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption as shall be fixed and determined from time to time by resolution or resolutions providing for the issuance of such shares adopted by the Board of Directors, to whom authority to fix and determine the same is in the Articles of Incorporation expressly granted authority. In addition, the Board of Directors is in the Articles of Incorporation expressly granted to change the designation of any class and to increase or decrease the number of shares of any class, but the number of shares of any class shall not be decreased by the Board of Directors below the number of shares thereof then outstanding.
SECOND: The par value of all Shares of the Corporation's capital stock of all classes, before the occurrence of events set forth in Articles First was, and upon the occurrence of the events set forth in Article First, is $.01 per share.
THIRD: The aggregate par value of all Shares of the Corporation's capital stock of all classes before the occurrence of the events set forth in Article First was Twenty Million Dollars ($20,000,000) and upon the occurrence of the events set forth in Article First is Thirty Million Dollars ($30,000,000).
FOURTH: The Corporation is registered as an open-end company under the Investment Company Act of 1940.
IN WITNESS WHEREOF, MUTUAL OF AMERICA INVESTMENT CORPORATION has caused these articles to be signed in its name and on its behalf by its President and attested by its Secretary on April 13, 1995.
MUTUAL OF AMERICA INVESTMENT CORPORATION
By: /s/ Dolores J. Morrissey
------------------------------------
Dolores J. Morrissey
President
Attest:
/s/ Stephanie J. Kopp
---------------------------
Stephanie J. Kopp
Secretary
|
THE UNDERSIGNED, President of Mutual of America Investment Corporation, who executed on behalf of said corporation the foregoing Articles Supplementary, of which this certificate is made a part, hereby acknowledges, in the name and on behalf of said corporation, the foregoing Articles Supplementary to be the corporate act of said corporation and further certifies that, to the best of her knowledge, information and belief, the matters and facts set forth therein with respect to the approval thereof are true in all material respects, under the penalties of perjury.
/s/ Dolores J. Morrissey
--------------------------------
Dolores J. Morrissey
|
Exhibit 1(h)
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLES SUPPLEMENTARY TO THE CHARTER
Mutual of America Investment Corporation, a Maryland corporation (the Corporation), with its principal office c/o Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202, hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The total number of shares of capital stock of all classes that the Corporation has authority to issue is three billion (3,000,000,000) shares of common stock, par value $.01 per share, with an aggregate par value of thirty million dollars ($30,000,000).
SECOND: Pursuant to authority vested in the Board of Directors of the Corporation by Section 5.1 of the Articles of Incorporation of the Corporation (the Articles) and a resolution duly adopted by the Board of Directors at its meeting held September 16, 1997, the authorized shares allocated to the Bond Fund and Equity Index Fund are increased to the following:
Bond Fund - 325,000,000 Equity Index Fund - 150,000,000
The relative preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of each such class are the same as for shares previously allocated to the Bond and Equity Index Funds.
IN WITNESS WHEREOF, the President of the Corporation has signed these Articles Supplementary in the Corporation's name and on its behalf and acknowledges that these Articles Supplementary are the act of the Corporation, and states that to the best of her knowledge, information and belief all matters and facts set forth therein relating to the authorization and approval of the Articles Supplementary are true in all material respects and that this statement is made under the penalties of perjury.
Date: September 17, 1997
MUTUAL OF AMERICA
INVESTMENT CORPORATION
Attest:
/s/ Dolores J. Morrissey
----------------------------
Dolores J. Morrissey
/s/ Stanley M. Lenkowicz President and CEO
---------------------------------
Stanley M. Lenkowicz
Secretary
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(seal)
Exhibit 2(a)
BY-LAWS
OF
MUTUAL OF AMERICA INVESTMENT CORPORATION
ARTICLE I
OFFICES
SECTION 1.1. Principal Office. The principal office of the MUTUAL OF AMERICA INVESTMENT CORPORATION (hereinafter referred to as the "Corporation") in the State of Maryland shall be in the City of Baltimore, State of Maryland.
SECTION 1.2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Maryland as the Board of Directors may from time to time determine or the business of the Corporation may require, including without limitation offices at New York, New York.
ARTICLE II
SHAREHOLDERS
SECTION 2.1. Place of Meetings. Meetings of shareholders shall be held at the offices of the Corporation in the City of New York, New York, or at any other place within the United States as shall be designated from time to time by the Board of Directors and stated in the notice of meeting or in a duly executed waiver of notice thereof.
SECTION 2.2. Annual Meetings. Annual Meetings of shareholders shall be held during the month of April, or at such later date and time as shall be fixed annually by the Board of Directors and stated in the notice of the meeting, at which the shareholders shall elect a Board of Directors and ratify or reject the independent public accountants selected for the current year and may transact any other business within the powers of the Corporation and properly brought before the meeting. Any business of the Corporation may be transacted at the Annual Meeting without being specially designated in the notice, except such business as is specifically required by statute to be stated in the notice.
SECTION 2.3. Special Meetings. Special meetings of the shareholders may be called by the Board of Directors or by the Chairman of the Board. Special meetings of shareholders shall be called by the Secretary upon the written request of holders of shares entitled to cast not less than twenty-five per cent of all the votes entitled to be cast at such meeting. Such request shall state the purpose or purposes of such meeting and the matters proposed to be acted on thereat. The Secretary shall inform such requesting shareholders of the reasonably estimated cost of preparing and mailing such notice of the meeting and, upon payment to the Corporation of such costs, the Secretary shall give notice stating the purpose or purposes of the meeting to all shareholders entitled to notice of such meeting. No special meeting need be called to consider any matter which is substantially the same as a matter voted upon at any special meeting of the shareholders held during the preceding twelve months unless requested by the holders of shares entitled to cast a majority of all votes entitled to be cast as such meeting.
SECTION 2.4. Notice and Purpose. Not less than ten (10) nor more than ninety (90) days before the date of every shareholders' meeting, the Secretary shall give to each shareholders entitled to vote at such meeting and to each shareholder not entitled to vote who is entitled by statute to notice, written or printed notice stating the time and place of the meeting and the purpose or purposes for which the meeting is called, whether by mail or by presenting it to him or her personally or by leaving it at his or her residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the shareholder at his or her post-office address as it appears on the records of the Corporation, with postage thereon prepaid. Business transacted at any special meeting of shareholders, but not annual meetings, shall be limited to the purposes stated in the notice.
SECTION 2.5. Record Date. The Board of Directors may fix, in advance, a date as the record date for the purpose of determining shareholders entitled to notice of, or to vote at, any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend or the allotment of any rights, or in order to make a determination of shareholders for any other proper purpose. Such date in any case shall be not more than ninety (90) days, and in case of a meeting of shareholders, not less than ten (10) days, prior to the date on which the particular action requiring such determination of shareholders is to be taken.
SECTION 2.6. Quorum. The holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the shareholders, but, if a quorum is not represented, a majority of the shareholders present in person or represented by proxy may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
SECTION 2.7. Voting. Any holder on the record of the shareholders of the Corporation as of the record date determined pursuant to Section 2.5 herein shall be entitled to vote to the extent provided in the Articles of Incorporation, as they may be amended from time to time, either in person or by proxy executed in writing by him or her or by his or her duly authorized attorney-in-fact. Any holder of fractional shares of the Corporation shall have proportionally the same voting rights as are provided for a full share. No proxy shall be valid after eleven months from the date of execution, unless otherwise provided in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable or unless so otherwise made irrevocable by law. Proxies shall be delivered to the Secretary of the Corporation before or at the time of such meeting. The vote of the holders of a majority of the shares entitled to vote and present in person or represented by proxy at a meeting at which a quorum is present shall be the act of the shareholders meeting, unless the vote of a greater number is required by law, the Articles of Incorporation or these By-laws.
SECTION 2.8. The Chairman of the Board and the Secretary. The Chairman of the Board or such individual as the Chairman shall designate shall preside at and the Secretary shall keep the records of each meeting of shareholders, and in the absence of either individual, his or her duties shall be performed by some person appointed at the meeting.
SECTION 2.9. Order of Business. The business shall be transacted in such order as the Chairman of the Board shall determine.
SECTION 2.10. Conduct of Meetings. At all meetings of the shareholders, all proxies shall be received and taken in charge of and all ballots shall be received and canvassed by the Chairman of the meetings, who shall decide all questions touching the qualification of voters, the validity of the proxies, and the acceptance or rejection of votes, unless Inspectors of Election shall have been appointed as follows, in which event, such Inspectors of Election shall decide all such questions.
At any meeting of shareholders at which Directors are to be elected, the Board of Directors prior thereto may, or, if they have not so acted, the Chairman of the meeting may, and upon the request of the holders of ten percent (10%) of the stock entitled to vote at such meeting shall, appoint two Inspectors of Election who shall first subscribe an oath or affirmation to execute faithfully the duties of Inspectors at such election with strict impartiality and according to the best of their ability, and shall after the election make a certificate of the result of the vote taken. No candidate for the office of Director shall be appointed such Inspector.
The Chairman of the meeting may cause a vote by ballot to be taken upon any election or matter, and such vote shall be taken upon the request of the holders of ten percent (10%) of the stock entitled to vote on such election or matter.
ARTICLE III
DIRECTORS
SECTION 3.1. General Powers. The business and property of the Corporation shall be managed under the direction of its Board of Directors, and subject to the restrictions imposed by law, by the Articles of Incorporation, or by these By-laws, they shall exercise all the powers of the Corporation.
SECTION 3.2. Delegation. To the extent permitted by law, by the Articles of Incorporation or these By-laws, the Board of Directors may delegate the duty of management of the Corporation's assets and such other of its powers and duties (a) to an Executive Committee or other committees, or (b) to another party to act as manager, investment adviser or underwriter pursuant to a written contract or contracts to be approved in the manner required by the Investment Company Act of 1940 (the "1940 Act").
SECTION 3.3. Number. The Board of Directors shall consist of six (6) directors, but the number of directors may be increased or decreased (provided such decrease does not shorten the term of any incumbent director) from time to time by the Board of Directors by amendment of the By-laws, provided that the number of directors shall not be more then twenty-one (21) nor less than three (3).
SECTION 3.4. Election, Resignations, Term of Office and Vacancies. Until the first meeting of shareholders or until their successors are duly elected and qualified, the Board of Directors shall consist of the persons named as such in the Articles of Incorporation. The directors shall be elected at each annual meeting of shareholders and may be elected at any meeting of shareholders. Cumulative voting is not permitted. Directors need not be residents of the State of Maryland or shareholders of the Corporation. Each director, unless he or she sooner resigns, dies or is removed, shall hold office until the next annual meeting and until the successor is duly elected and duly qualified. Any director may resign his or her office at any time by delivering the resignation in writing to the Corporation. The acceptance of such resignation, unless required by the terms thereof, shall not be necessary to make such resignation effective. Subject to compliance with Section 10(e) and 16(a) of the 1940 Act, any vacancies occurring in the Board of Directors other than by reason of an increase in the number of directors within 30 days, may be filled by the affirmative vote of a majority of the remaining directors, even though such majority is less than a quorum. A director elected by the Board of Directors to fill a vacancy shall be elected for the unexpired term of his
or her predecessor in office. If a special meeting of shareholder is required to fill a vacancy, the meeting shall be held within sixty (60) days or such longer period as may be permitted by the Securities and Exchange Commission.
SECTION 3.5. Place of Meeting. Meetings of the Board of Directors may be held within or without the State of Maryland, at whatever place is specified by the officer calling the meeting. In the absence of a specific place designation, the meeting shall be held at the office of the Corporation in the City of New York, New York.
Subject to any limitations of the 1940 Act, members of the Board of Directors or a committee of the Board may participate in a meeting by means of a conference telephone or similar communications equipment provided that all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence at the meeting.
SECTION 3.6. Organization and Regular Meetings. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately following the annual meeting of the shareholders, at the place of such meeting. No notice of such first meeting need be given to either old or new members of the Board of Directors. Regular meetings may be held at such other times and places as shall be designated by the Board of Directors, and notice of such regular meeting shall not be required.
SECTION 3.7. Special Meetings. Special meetings of the Board of Directors may be held at any time upon the call of the Chairman of the Board, or the President, or any two (2) directors of the Corporation. The Secretary shall give notice of such special meeting by mailing the same at least three (3) days or by sending by cable, radio or telegraph or delivering personally or telephoning the same at least one (1) day before the meeting to each director. Notice of the time, place, and purpose of such meeting may be waived in accordance with Article VIII of these By-laws. Attendance of a director at such meeting shall also constitute a waiver of notice thereof, except where he or she attends for the announced purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Except as otherwise herein provided, neither the business to be transacted at, nor the purpose of , any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
SECTION 3.8. Chairman of the Board. The Chairman of the Board shall be a member of the Board of Directors, and shall be chosen annually by the Board of Directors at its first meeting after each annual meeting of the shareholders.
The Chairman of the Board or such individual as the Chairman shall designate shall preside at meetings of the Board of Directors. He or she shall have such other
powers as are usually incident o the position of Chairman of the Board and shall exercise such other specific powers as the Board of Directors may from time to time assign him or her.
SECTION 3.9. Quorum and Manner of Acting. A majority of the number of directors fixed by these By-laws as from time to time amended shall constitute a quorum for the transaction of business, but a small number may adjourn from time to time until they can secure the attendance of a quorum. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, except as otherwise expressly required under the provisions of the 1940 Act, or where a larger vote is required by law, the Articles of Incorporation or these By-laws. Any regular or special meeting of the Board of Directors may be adjourned from time to time by those present, whether a quorum is present or not.
SECTION 3.10. Removal of Directors. Any director may be removed from office, either for or without cause, at any annual or special meeting of shareholders by the affirmative vote of a majority of the outstanding shares entitled to vote for the election of directors. The notice calling such meeting shall give notice of the intention to act upon such matter, and if the notice so provides, the vacancy caused by such removal may be filled at such meeting by vote of a majority of the shares represented at such meeting and entitled to vote for the election of directors.
SECTION 3.11. Informal Action by Directors. Subject to the provisions of the 1940 Act, any action permitted or required by law, these By-laws or by the Articles of Incorporation to be taken at a meeting of the Board of Directors or any committee may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the Board of Directors or such committee, as the case may be. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument.
SECTION 3.12. Compensation of Directors. The Board of Directors may authorize reasonable compensation to Directors for their services as Directors and as members of committees of the Board of Directors and may authorize the reimbursement of reasonable expenses incurred by Directors in connection with rendering those services.
ARTICLE IV
COMMITTEES
SECTION 4.1. Executive Committee. The Board may, by resolution adopted by a majority of the entire Board, designate an Executive Committee consisting of the Chairman of the Board and one or more of the directors of the Corporation, and
may delegate to such Executive Committee any of the powers of the Board of Directors except:
a. the power to declare dividends or distribution on stock;
b. the power to recommend to the shareholders any action which requires shareholder approval;
c. the power to amend or repeal By-laws ore adopt new By-laws;
d. the power to approve any merger or share exchange which does not require shareholder approval; or
e. the power to issue stock, except as hereafter provided.
If the Board of Directors has given general authorization for the issuance of stock of any class, the Executive Committee, in accordance with a general formula or method specified by the Board of Directors by resolution, may fix the terms of such class and the terms on which any stock may be issued, to the extent permitted by law and the Articles of Incorporation.
The Executive Committee shall keep written minutes of its proceedings and shall report such minutes to the Board. All such proceedings shall be subject to revision or alteration by the Board; provided, however, that third parties shall not be prejudiced by such revision or alteration.
SECTION 4.2. Other Committees. The Board of Directors may, by resolution or resolutions adopted by a majority of the entire Board, designate one or more committees, each committee to consist of two or more of the directors of the Corporation, which committee shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation to the extent provided in said resolution or resolutions, except where action of the Board of Directors is specified by law. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size or membership of, and to discharge any such committees.
SECTION 4.3. General. A committee shall fix its own rules of procedure not inconsistent with these By-laws and with any directions of the Board of Directors. It shall meet at such times and places and upon such notice as shall be provided by such rules or by resolution of the Board of Directors. The presence of a majority shall
constitute a quorum for the transaction of business, and in every case an affirmative vote of a majority of the members of the committee present shall be necessary for the taking of any action. A committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required.
ARTICLE V
OFFICERS
SECTION 5.1. Number. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chairman and Chief Executive Officer, President, a Secretary, a Treasurer and Chief Financial Officer, and a Controller and Chief Accounting Officer. The Board of Directors may also choose a Vice President or additional Vice Presidents, Assistant Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers.
SECTION 5.2. Selection. At its first meeting and at its first meeting after each annual meeting of shareholders, the Board of Directors shall choose a Chairman and Chief Executive Officer, a President, a Secretary, a Treasurer and Chief Financial Officer, and a Controller and Chief Accounting Officer, none of whom need be a member of the Board. Any two or more offices, except the offices of President and Vice President, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, the Articles of Incorporation or these By-laws to be executed, acknowledged or verified by two or more officers.
SECTION 5.3. Term of Office. The officers of the Corporation shall hold office until their successors are chosen and qualified. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.
SECTION 5.4. Selection of Other Officers and Agents. The Board of Directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. If they so deem, the Board of Directors may delegate this power to appoint other officers and agents to the Chairman of the Board.
SECTION 5.5. Salaries. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors. If they so deem, the Board of Directors may delegate this power to set salary levels of all officer and agent to the Chairman of the Board.
SECTION 5.6. Removal. Any officer or agent of the Corporation may be removed during his term by a majority vote of the Board of Directors whenever, in its judgment, removal of such person would serve the best interest of the Corporation. Such removal shall terminate all of such person's authority as an officer or agent, but his right to salary and any contract rights shall depend on the terms of his employment and the circumstances of his removal. Election or appointment of an officer or agent shall not of itself create contract rights. If they so deem, the Board of Directors may delegate this power to remove agents and employees under their control to the Chairman of the Board of the Corporation.
SECTION 5.7. Chairman of the Board. The Chairman of the Board shall, when present, preside at all meetings of the shareholders and of the Board of Directors. Subject to the control of the Board of Directors, the Chairman of the Board shall be the chief executive officer of the Corporation. He shall assume general and active management of the business of the Corporation and general and active supervision and direction over the other officers, agents, and employees of the Corporation and shall see that their duties are properly performed. The foregoing shall not apply to any responsibilities delegated by the Board of Directors to a Manager, investment adviser, underwriter, custodian, or transfer agent pursuant to any written contract.
The Chairman of the Board, either alone or (if as required by law, these By-laws or the Board of Directors) with the Secretary or any other officer of the Corporation so authorized by the Board of Directors, may sign certificates of shares of the Corporation or any deeds, mortgages, bonds, contracts or other instruments that the Board of Directors has authorized for execution, except when the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-laws to some other officer or agent of the Corporation or shall be required by law to be otherwise signed or executed.
The Chairman of the Board, in conjunction with the Secretary, may duly authenticate the Corporation's records or copies thereof for use as evidence in any action or proceeding to which the Corporation may be a party.
In general, the Chairman of the Board shall perform all duties incident to the office of the Chairman of the Board and such other duties as may be prescribed by the Board of Directors from time to time.
SECTION 5.8. President. Subject to the control of the Board of Directors, the President shall be the chief operating officer of the Corporation. In absence of the President or in the event of he death, inability or refusal to act or in the event for any other reason, it shall become impracticable for the President to act personally, the Chairman of the Board shall perform the duties of the President and when so acting shall have all of the powers of and be subject to all of the restrictions upon the President.
The President, either along or (if as required by law, these By-laws or the Board of Directors) with the Secretary or any other officer of the Corporation so authorized by the Board of Directors, may sign certificates of shares of the Corporation or any deeds, mortgages, bonds, contracts or other instruments that the Board of Directors has authorized for execution, except when the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-laws to some other officer or agent of the Corporation or shall be required by law to be otherwise signed or executed.
The President, in conjunction with the Secretary, may duly authenticate the Corporation's records or copies thereof for use as evidence in any action or proceeding to which the Corporation may be a party.
In general, the President shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.
SECTION 5.9. The Vice President. The Vice President, or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors, shall be vested with all the powers and required to perform all the duties of the President in his absence or disability or refusal to act, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other power as Chairman of the Board, the President or the Board of Directors may from time to time prescribe.
SECTION 5.10. The Secretary and Assistant Secretaries. Except as may otherwise be provided by the Board of Directors, the Secretary of the Corporation shall have the following powers and duties:
a. to keep the minutes of the meetings of shareholders, of the Board of Directors, and any committee thereof in one or more books provided for that purpose;
b. to see that all notices are duly given, in accordance with these By-laws or as required by law;
c. to be custodian of the corporate records and the seal of the Corporation;
d. to see that the seal of the Corporation is affirmed to all documents duly authorized for execution under seal on behalf of the Corporation;
e. to keep or cause to be kept for the Corporation the stock ledger described in Section 9.1 of these By-laws;
f. to countersign certificates for shares of the Corporation, the issuance of which have been authorized by resolution of the Board of Directors;
g. to have general charge of the stock transfer books of the Corporation;
h. to duly authenticate, in conjunction with the President, the Corporation's records or copies thereof to be used as evidence in any action or proceedings to which the Corporation may be a party; and
i. to perform all duties incidental to the office of Secretary and such other duties as, from time to time, may be assigned to the Secretary by the Chairman of the Board, the President or Board of Directors.
The Assistant Secretary, or if there are more than one, the Assistant Secretaries in the order determined by the Board of Directors, shall, in the absence or refusal to act or disability of the Secretary, perform the duties and exercise the power of the Secretary and shall perform such other duties as, from time to time, may be assigned by the Chairman of the Board, the Secretary or the Board of Directors.
SECTION 5.11. The Treasurer and Chief Financial Officer, the Controller, and Assistant Treasurers. Except as may otherwise be provided by the Board of Directors the Treasurer and Chief Financial Officer shall:
a. have charge and custody of, and be responsible for, all the funds and securities of the Corporation, except those which the Corporation has placed in the custody of a bank or trust company pursuant to a written agreement designating such bank or trust company as custodian of the property of the Corporation;
b. keep full and accurate accounts of the receipts and disbursements in books belonging to the Corporation;
c. cause all monies and other valuables to be deposited to the credit of the Corporation;
d. receive, and give receipts for, monies due and payable to the Corporation from any source whatsoever;
e. disburse the funds of the Corporation and supervise the investment of its funds as ordered or authorized by the Board, taking proper vouchers therefore; and
f. in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Chairman of the Board, the President, or the Board of Directors.
The controller shall perform such duties and exercise such powers of the Treasurer as may be assigned by the Chairman of the Board, the President, the Treasurer or the Board of Directors. The Assistant Treasurer, or if there are more than one, the Assistant Treasurers in the order determined by the Board of Directors, shall, in the absence or refusal to act or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as, from time to time, may be assigned by the President, the Treasurer or the Board of Directors.
SECTION 5.12. Other Subordinate Officers. Other subordinate officers and agents appointed by the Board of Directors shall exercise such powers and perform such duties as may be assigned by the Chairman of the Board, the President or may be delegated to them by the resolution appointing them, or by subsequent resolutions adopted from time to time by the Board of Directors.
SECTION 5.13. Bonding. The Board of Directors may require any officer, agent or employee to give bond for the faithful discharge of his or her duties and for the protection of the Corporation in such sum and with such surety or sureties as the Board may deem available.
ARTICLE VI
TRANSACTIONS WITH RELATED PARTIES
SECTION 6.1. To the extent permitted by law and by the provisions of this Article VI, any director, officer or employee, individually, or any partnership of which any director, officer or employee may be a member, or any corporation or association of which any director, officer or employee may be an officer, director, trustee, employee or shareholder, may be a party to , or may be pecuniary or otherwise interested in , any contract or transaction of the Corporation, and in the absence of fraud no contract or other transaction shall be thereby affected or invalidated; provided that in case a director, or a partnership, corporation or association of which a director is a member, officer, director, trustee, employee or shareholder, is so interested, such fact shall be disclosed or shall have been known to the Board of Directors or a majority thereof; and any director of the Corporation who is so interested or who is also a director, officer,
trustee, employee or shareholder of such other corporation or association, or a member of such partnership which is so interested, may be counted in determining the existence of a quorum at any meeting of the Board of Directors of the Corporation which shall authorize any such contract or transaction with like force and effect as if he or she were not such director, officer, trustee, employee or shareholder of such corporation or association, or not so interested or a member of a partnership so interested, or so interested individually.
SECTION 6.2. Nothing herein contained shall protect or purport to protect any director or officer of the Corporation against any liability to the Corporation or its security holders to which he or she would otherwise be subject by reason of his or her willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his or her office.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification. The indemnification set forth in this Article shall be to the maximum extent permitted by Maryland law, subject only to any limitations imposed by federal securities law.
SECTION 7.2. Non-Derivative Actions. 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, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he or she is or was a director, officer, agent or employee of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding not arising by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties ("disabling conduct").
SECTION 7.3. Derivative Actions. 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 completion action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the or she is or was a director, officer, agent or employee of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against expense (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit not arising by reason of disabling conduct.
SECTION 7.4. Required Indemnification. To the extent that a person who is or was a director, officer, agent or employee of the Corporation has been successful on the merits in defense of any claim of liability by reason of disabling conduct, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith.
SECTION 7.5. Determination. Any indemnification under Section 7.1 and 7.2 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination, based on a review of the facts, that indemnification of the director, officer, agent employee is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 7.2 and 7.3. Such determination shall be made (1) by a final decision on the merits by a court or other body before whom the proceeding was brought that the person to be indemnified was not liable by reason of disabling conduct, or (2) in the absence of such a decision by the Board of Directors by a majority vote of a quorum consisting of disinterested directors who were not parties to such action, suit or proceeding ("disinterested nonparty directors"), or (3) if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested non-party directors so direct, by independent legal counsel in a written opinion.
SECTION 7.6. Advance Payment. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, agent or employee to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the Corporation as authorized in this Article VII, provided that either (1)
the person to be indemnified provides a security for his or her undertaking; or
(2) the Corporation is insured against losses arising by reason of any such
lawful advances; or (3) a majority of a quorum of the disinterested non-party
directors, or an independent legal counsel in a written opinion, determines,
based on a review of readily-available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the person to be indemnified
ultimately will be found entitled to indemnification.
SECTION 7.7 Non-Exclusive Right. The indemnification provided by this Article VII shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the heirs, executors and administrators of such a person.
SECTION 7.8. Insurance. The Corporation may purchase and maintain insurance on its behalf and on behalf of any person who is or was a director, officer, agent or employee of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, but not arising by reason of disabling conduct.
ARTICLE VIII
WAIVERS OF NOTICE
Whenever, under the provisions of any law, the Articles of Incorporation or amendments thereto, or these By-laws, any notice is required to be given to any shareholder, director or committee member, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, as well as attendance at the meeting in person or by proxy, shall be equivalent to the giving of such notice. Waivers given by telegram, radiogram, cablegram or other such form of rapid transmission shall be deemed waivers in writing within the meaning of these By-laws.
ARTICLE IX
CAPITAL STOCK
SECTION 9.1. Stock Ledger and Record of Shareholders. The Corporation shall maintain at its offices in the City of New York, New York or at the offices of a transfer agent, if one is appointed, an original or duplicate stock ledger containing the names and address of all shareholders and the number of shares of each class held by each shareholder, and, if a certificate has been issued, the certificate number, date of issue and whether it was original issue or by transfer. The Board of Directors of the Corporation may appoint on one or more transfer agents of the stock of the Corporation. Unless and until such appointment is made, the Secretary of the Corporation shall maintain the stock ledger. The names of shareholders as they appear on the stock ledger shall be the official list of shareholders of record of the Corporation for all purposes. The Corporation shall be entitled to treat the holder of record of any shares of the Corporation as the owner thereof for all purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such shares or any rights deriving from such shares, on the part of any other person, including (but without limitation) a purchaser, assignee or transferee, unless and until such other person becomes the holder of record of such shares, whether or not the Corporation shall have either actual or constructive notice of
the interest of such other person, except as otherwise provided by the federal securities laws or the laws of Maryland.
SECTION 9.2. Transfers of Shares. The shares of the Corporation shall be transferable on the stock certificate books of the Corporation upon appropriate authorization in person by the holder of record thereof, or his or her duly authorized attorney or legal representative, and, if a certificate was issued, upon endorsement and surrender for cancellation of the certificate of such shares. All certificates surrendered for transfer shall be canceled, and no new certificates shall be issued to the transferee until a former certificate or certificates for a like number of shares shall have been surrendered and canceled, except that in the case of a lost, destroyed or mutilated certificate, a new certificate may be issued therefor upon such conditions for the protection of the Corporation and any transfer agent of the Corporation as the Board of Directors may prescribe.
ARTICLE X
CUSTODIAN
SECTION 10.1. Employment of Custodian. All assets of the Corporation shall be held by one or more custodian banks or trust companies meeting the requirements of the 1940 Act, as the Board of Directors may from time to time determine, each of which custodians shall have capital, surplus and undivided profits of not less than $2,000,000 and may be registered in the name of the Corporation, including a designation of a particular class to which such assets belong, or any such custodian, or a nominee of either of them. The terms of any custodian agreement shall be determined by the Board of Directors, which terms shall be in accordance with the provisions of the 1940 Act. If so directed by vote of the holders of a majority of the outstanding shares of a particular class or by vote of the Board of Directors, in accordance with the provisions of the 1940 Act, the custodian of the assets belonging to such class shall deliver and pay over such assets as specified in such vote.
Subject to such rules, regulations and orders as the Securities and Exchange Commission may adopt, the Corporation may direct a custodian to deposit all or any part of the securities owned by the Corporation in a system for the central handling of securities established by a national securities exchange of a national securities association registered with the Securities and Exchange Commission, or otherwise in accordance with the 1940 Act, pursuant to which system all securities of any particular class of any issuer deposited within the system are treated as fungible and may be transferred or pledged by bookkeeping entry without physical delivery of such securities, provided that all such deposits shall be subject to withdrawal only upon the order of the Corporation or a custodian.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Fiscal Year. Unless otherwise determined by the Board of Directors, the fiscal year of the Corporation shall begin on January 1, and end on December 31, in each year.
SECTION 11.2. Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Maryland". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 11.3. Annual Report. The Chairman of the Board, President or a Vice President or the Treasurer shall prepare or cause to be prepared annually a full and correct statement of affairs of the Corporation for the preceding fiscal year, which shall be submitted at the annual meeting and shall be filed within twenty (20) days thereafter at the principal office of the Corporation in the State of Maryland.
ARTICLE XII
AMENDMENT
SECTION 12.1. By Shareholders. These By-laws may be amended, altered, repealed or added to at any regular meeting of the shareholders or at any special meeting called for that purpose, by the affirmative vote of a majority of the shares entitled to vote and represented at such meeting.
SECTION 12.2. By Directors. The Board of Directors may alter and amend, adopt, replace or add to these By-laws at any regular meeting of the Board, or at any special meeting of the Board called for that purpose, by the affirmative vote of a majority of such Board, except where a vote of shareholders is required by law, the Articles of Incorporation, or these By-laws.
Exhibit 2(b)
MUTUAL OF AMERICA INVESTMENT CORPORATION
RE: By-Law Amendments
The attached resolutions reflect suggested changes to the By-Laws which will allow the Corporation to avoid having stockholder meetings when the Investment Company Act of 1940 would not otherwise require them. At a minimum, the Corporation will be able to avoid having meetings that only elect directors or ratify selection of accountants.
RESOLVED, that Article II, Section 2.2 of the Corporation's By-Laws be deleted and replaced in its entirety by the following:
"Section 2.2. Annual Meeting. The Corporation shall not be required
to hold an annual meeting of its shareholders in any year in which none of
the following is required to be acted on by the holders of any class or
series of stock under the Investment Company Act of 1940 (the "1940 Act"):
(a) election of directors, (b) approval of the Corporation's investment
advisory agreement with respect to a particular class or series; (c)
ratification of the selection of independent public accountants; and (d)
approval of the Corporation's distribution agreement with respect to a
particular class or series. In the event that the Corporation shall be
required to hold a meeting of shareholders by the 1940 Act, such meeting
shall be held: (a) at a date and time set by the Board of Directors in
accordance with the 1940 Act if the purpose of the meeting is to elect
directors or to approve an investment advisory agreement or distribution
agreement; and (b) on a date fixed by the Board of Directors during the
month of February (i) in the fiscal year immediately following the fiscal
year in which independent accountants were appointed if the purpose of the
meeting is to ratify the selection of such independent accountants or (ii)
in any fiscal year if an annual meeting is to be held for any reason other
than as specified in the foregoing. Any shareholders' meeting held in
accordance with the preceding sentence shall for all purposes constitute
the annual meeting of stockholders for the fiscal year of the Corporation
in which the meeting is held. At any such meeting, the shareholders shall
elect directors to hold the offices of any directors who have held office
for more than one year, or who have been elected by the Board of Directors
to fill vacancies that result from any cause. Except as the Articles of
Incorporation or statute provides otherwise, any business may be
considered at an annual meeting without the purpose of the meeting's
having been specified in the notice. Failure to hold an annual meeting
does not invalidate the Corporation's existence or affect any otherwise
valid corporate acts."
RESOLVED, that the second and fifth sentences of Article III,
Section 3.4 of the Corporation's By-Laws be deleted and replaced
respectively in their entirety by the following:
"The directors shall be elected at the annual meeting of shareholders, if any, or at any special meeting held for that purpose."
"The term of office of each director shall be from the time of his/her election and qualification until the election of directors next succeeding his/her election and until his/her successor shall have been elected and shall have qualified, or until his/her death, or until he/she shall have resigned, or have been removed as hereinafter provided in these By-Laws, or as otherwise provided by statute or the Articles of Incorporation."
Exhibit 2(c)
MUTUAL OF AMERICA INVESTMENT CORPORATION
RE: By-Law Amendment
The following resolution is being proposed to further refine procedures relating to previous amendments which have permitted the Corporation to avoid having unnecessary annual shareholders meetings. The proposed resolution establishes that each year the Chairman of the Board will be elected whether or not an annual shareholders meeting is held.
RESOLVED, that the first paragraph of Article III Section 3.8 of the Corporation's By-Laws be deleted and replaced in its entirety by the following:
SECTION 3.8 Chairman of the Board. The Chairman of the Board shall be a member of the Board of Directors, and shall be chosen annually by the Board of Directors at its first meeting after each annual meeting of the shareholders if any is held. Should no annual shareholder meeting be held in any year, the Chairman of the Board shall be chosen at the Corporation's second meeting held during each such calendar year.
Exhibit 4(a)
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, made this 21st day of April, 1993, by and between Mutual of America Life Insurance Company (the "Adviser"), a New York mutual life insurance company, and Mutual of America Investment Corporation (the "Company"), a Maryland corporation.
W I T N E S S E T H
WHEREAS, the Company is engaged in business as a diversified open-end management investment Company and is registered as such under the Investment Company Act of 1940, (the "Investment Company Act");
WHEREAS, the Company is comprised of seven separate Funds, each of which pursues its investment objective through separate investment policies;
WHEREAS, the Adviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Company desires to retain the Adviser to render investment supervisory and corporate administration services to the Company in the manner and on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual agreements herein contained, the Adviser and the Company agree as follows:
1. General. For the period and on the terms set forth in this Agreement, the Adviser shall manage the investment and reinvestment of the assets of the existing Funds of the Company, (the Money Market Fund, the Stock Fund, the Equity Index Fund, the Bond Fund, the Short-Term Bond Fund, the Mid-Term Bond Fund and the Composite Fund) and of any additional funds created in the future (collectively, the existing and any additional funds are hereinafter referred to as "Funds"). The Adviser agrees during such period, at its own expense and subject to the supervision of the Board of Directors of the Company, to render the investment advisory services and assume the obligations herein set forth, for the compensation provided by this Agreement.
2. Investment Management Services. In carrying out its obligations to manage the investment and reinvestment of the assets of the Company, the Adviser shall as appropriate and consistent with the limitations set forth in Paragraph 3 hereof:
(a) perform research and obtain and evaluate pertinent economic, statistical and financial data relevant to the investment policies of each of the Funds as set forth in the then effective registration statement for the Company, as amended from time to time, filed with the Securities and Exchange Commission ("Registration Statement");
(b) consult with the Board of Directors of the Company and furnish to the Board of Directors of the Company recommendations with respect to an overall investment plan for each of the Funds for approval, modification or rejection by the Board of Directors of the Company;
(c) seek out, present and recommend specific investment opportunities, consistent with any overall investment plans approved by the Board of Directors of the Company;
(d) take such steps as are necessary to implement any overall investment plans approved by the Board of Directors of the Company, including making and carrying out decisions to acquire or dispose of permissible investments, management of investments and any other property of the Company, and providing or obtaining such services as may be necessary in managing, acquiring or disposing of investments;
(e) regularly report to the Board of Directors of the Company with respect to the implementation of any approved overall investment plans and any other activities in connection with management of the assets of the Company;
(f) maintain all required accounts, records, memoranda, instructions or authorizations relating to the acquisition or disposition of investments for each Fund; and
(g) provide all the office space, facilities, equipment, material and personnel necessary to fulfill its obligations under this Agreement.
3. Supplemental Information. If, in the judgment of the Adviser, the Funds of the Company would be benefited by supplemental investment research from other persons or entities, outside the context of a specific brokerage transaction, the Adviser is authorized to obtain and pay a reasonable flat fee for such information. Supplemental investment research shall be limited to statistical and other factual information, advice regarding economic factors and trends and advice as to occasional transactions in specific securities, and shall not involve general advice or recommendations regarding the purchase or sale of securities. The expenses of the Adviser may not necessarily be reduced as a result of receipt of such supplemental information.
4. Limitations on Management Services. The Adviser shall render investment advisory services with respect to assets allocated to the Company and effect all purchases and sales of investments for each Fund thereof in a manner consistent with:
(a) the investment objectives, policies and restrictions for each Fund of the Company as stated in the Registration Statement;
(b) the Rules and Regulations of the Company; and
(c) the provisions of the Investment Company Act of 1940.
Any investment program undertaken by the Adviser pursuant to this Agreement shall at all times be subject to any directives of the Board of Directors of the Company or any duly constituted committee thereof acting pursuant to like authority.
5. Brokerage and Research Services. The Adviser shall, subject to the supervision of the Board of Directors of the Company, arrange for the placement of orders for each of the Funds, either
directly with the issuer, with any broker-dealer or underwriter that specializes in the securities for which the order is made or with any other broker or dealer selected by the Adviser, subject to the following limitations.
The Adviser is authorized to select the brokers or dealers that will execute the purchases and sales of portfolio securities for the Funds and will use its best efforts to obtain the most favorable net results, taking into account all appropriate factors, including price, dealer spread or commission, if any, size of the transaction and difficulty of execution. However, in addition to seeking the best price and execution, the Adviser may also take into consideration research and statistical information and wire and other quotation services provided to the Adviser. In any event, the Adviser shall select only brokers whose commissions it believes are reasonable. The Adviser will periodically evaluate the statistical data, research and other investment services provided by brokers and dealers to it. Such services may be used by the Adviser in connection with the performance of its obligations under this Agreement or in connection with other advisory activities or investment operations.
6. Compensation. As compensation for its investment advisory services to the Company, the Adviser shall receive an amount calculated as a daily charge at the annual rates of .125% of the value of the net assets of the Equity Index Fund, 0.25% of the value of the net assets of the Money Market Fund and 0.50% of the value of the net assets of the Stock Fund, the Bond Fund, the Short-Term Bond Fund, the Mid-Term Bond Fund and the Composite Fund, respectively (computed in accordance with the Investment Company Act and the Registration Statement).
7. Expenses. The Adviser shall be responsible for all expenses incurred in performing the investment advisory services herein set forth, including costs of compensating and furnishing office space for officers and employees of the Adviser connected with investment and economic research, trading and investment management for the Funds of the Company. All brokers' commissions, transfer taxes and other fees relating to purchases and sales of investments for each Fund of the Company shall be paid out of assets allocated to such Fund.
8. Services Not Exclusive. The services rendered by the Adviser pursuant to this Agreement are not to be deemed exclusive, and the Adviser may render similar services to other entities so long as its services under this Agreement are not impaired or interfered with.
It is understood that the Adviser or its affiliates may use any investment research obtained for the benefit of the Company in providing investment advice to its other investment advisory accounts or for use in managing their own accounts. Conversely, such supplemental information obtained by the placement of business for the Company or other entities advised by the Adviser may be considered by and may be useful to the Adviser in carrying out its obligations to the Company.
When the Adviser deems the purchase or sale of a security to be in the best interests of a Fund of the Company, as well as other accounts or companies, it may, to the extent permitted by applicable laws and regulations, but will not be obligated to, aggregate the securities to be sold or purchased for such Fund with those to be sold or purchased for other accounts or companies in order to obtain favorable execution and low brokerage commissions. In that event, allocation of the securities purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner it considers to be most equitable and consistent with its fiduciary obligations
to the Company and to such other accounts or companies. The Company recognizes that in some cases this procedure may adversely affect the size of the position obtainable for it.
9. Term of Agreement. This Agreement will continue from year to year but only so long as such continuance is specifically approved at least annually either (i) by the Board of Directors of the Fund or (ii) by a vote of a majority of the outstanding voting securities of the Fund, provided that in either event such continuance will also be approved by the vote of a majority of the directors who are not interested persons (as defined in the Investment Company Act) of the Fund, or of the Insurance Company, cast in person at a meeting called for the purpose of voting on such approval. In connection with such approvals, the Board of Directors of the Company shall request and evaluate, and the Adviser shall furnish, such information as may be reasonably necessary to evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Adviser without the prior approval of a new investment advisory agreement by vote of a majority of the outstanding shares of each Fund of the Company;
(b) shall be subject to termination, without the payment of any penalty, by the Board of Directors of the Company, or by vote of a majority of the outstanding shares of the Company, or with respect to a particular Fund by vote of a majority of the outstanding shares of that Fund, in each case on sixty days written notice to the Adviser;
(c) shall not be amended without specific approval of such amendment
by (i) the Board of Directors of the Company, or by the vote of a majority
of the outstanding shares of each Fund affected by such amendment, and
(ii) a majority of those members of the Board of Directors of the Company
who are not parties to this Agreement or interested persons of such a
party, cast in person at a meeting called for the purpose of voting on
such approval; and
(d) shall automatically terminate upon assignment by either party.
10. Recordkeeping. The Adviser agrees that all accounts and records that it maintains for the Company shall be the property of the Company and that it will surrender promptly to the designated officers of the Company any or all such accounts and records upon request. The Adviser further agrees to preserve for the period prescribed by the rules and regulations of the Securities and Exchange Commission all such records and accounts as are required to be maintained pursuant to said rules. The Adviser also agrees that it will maintain all records and accounts regarding the investment activities of each of the Funds in a confidential manner. All such accounts or records shall be made available, within five (5) business days of a written request, to the Company's accountants or auditors during regular business hours at the Adviser's offices. In addition, the Adviser will provide any materials as are required to be maintained pursuant to said rules. The Adviser also agrees that it will maintain all records and accounts reasonably related to the investment advisory services provided hereunder, as may reasonably be requested in writing by the members of the Board of Directors of the Company or as may be required by any governmental agency having jurisdiction over the Adviser or the Company.
11. Interested and Affiliated Persons. It is understood that members, officers, employees or agents of the Company may also be interested in the Adviser as directors, officers, employees, agents or otherwise.
12. Liability of the Adviser. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties on the part of the Adviser (or its officers, directors, agents, employees, controlling persons, and any other person or entity affiliated with the Adviser or retained by it to perform or assist in the performance of its obligations under this Agreement), neither the Adviser nor any of its officers, directors, employees or agents shall be subject to liability to the Company or any shareholder of the Company for any act or omission in the course of, or connected with, rendering services hereunder, including without limitation, any error of judgment or mistake of law or for any loss suffered by the Company or any shareholder of the Company in connection with the matters to which this Agreement relates, except to the extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services.
13. Governing Law. This Agreement is subject to the provisions of the Investment Company Act, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder, including such exemptions therefrom as the Securities and Exchange Commission may grant. Words and phrases used herein shall be interpreted in accordance with that Act and those rules and regulations, and such exemptions. Without limiting the generality of the foregoing, (a) the term "assigned" shall not include any transaction exempted from Section 15(a)(4) of the Investment Company Act by an order of the Securities and Exchange Commission, and (b) as used with respect to the Company or any of its Funds, the term "majority of the outstanding shares" means the lesser of (i) 67% of the shares represented at a meeting at which more than 50% of the outstanding shares are represented, or (ii) more than 50% of the outstanding shares.
14. Miscellaneous. The Adviser shall submit to all regulatory and administrative bodies having jurisdiction over the operations of the Adviser or the Company, present or future, any materials, reasonably related to the investment advisory services provided hereunder, as may be reasonably requested in writing by the Board of Directors of the Company or as may be required by any governmental agency having jurisdiction.
WITNESS WHEREOF, the parties hereto have caused this Investment Advisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA LIFE INSURANCE
COMPANY
/s/ Manfred Altstadt
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MUTUAL OF AMERICA INVESTMENT
CORPORATION
/s/ Dolores J. Morrissey
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Exhibit 4(b)
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT made this 3rd day of November, 1993 (the "Assumption Agreement"), by and between Mutual of America Life Insurance Company, a New York mutual life insurance company (the "Insurance Company") and Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser").
W I T N E S S E T H
WHEREAS, Mutual of America Investment Corporation, a Maryland corporation (the "Investment Company"), is engaged in business as a diversified open-end management company and is registered as such under the Investment Company Act of 1940 (the "Investment Company Act"); and
WHEREAS, the Investment Company is comprised of seven separate Funds, each of which pursues its investment objective through separate investment policies; and
WHEREAS, the Insurance Company, as investment adviser, entered into an investment advisory agreement dated April 20, 1993, with the Investment Company (the "Investment Advisory Agreement"); and
WHEREAS, the Adviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Adviser wishes to assume the obligations of the Insurance Company under the Investment Advisory Agreement; and
WHEREAS, the Insurance Company wishes to assign its rights under the Investment Advisory Agreement to the Adviser; and
WHEREAS, the Investment Company wishes to accept and agree to the provisions of the Assumption Agreement; and
WHEREAS, pursuant to Rule 2a-6 under the Investment Company Act, the provisions of the Assumption Agreement will not be deemed an assignment under the Investment Company Act;
NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the Insurance Company and the Adviser agree as follows:
1. The Adviser hereby assumes all of the obligations of the Insurance Company under the Investment Advisory Agreement.
2. The Insurance Company hereby assigns all of its rights under the Investment Advisory Agreement to the Adviser.
3. The provisions hereof are deemed not to be an assignment under Section 9 of the Investment Advisory Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assumption Agreement to be executed as of the day and year first above written.
MUTUAL OF AMERICA LIFE INSURANCE
COMPANY
/s/ Richard J. Ciecka
--------------------------------
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MUTUAL OF AMERICA CAPITAL MANAGEMENT
CORPORATION
/s/ Frederick S. Hammer
--------------------------------
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The foregoing Assumption Agreement
is accepted and agreed to as of
the 3rd day of November, 1993.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
/s/ Dolores J. Morrissey
------------------------------------
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Exhibit 4(c)
SUPPLEMENT AA
TO
INVESTMENT ADVISORY AGREEMENT
Supplement AA made this 29th day of April 1, 1994, by and between Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser"), and Mutual of America Investment Corporation, a Maryland corporation (the "Company"), supplementing the investment advisory agreement dated the 21st day of April, 1993, by and between the Adviser and the Company (the "Investment Advisory Agreement").
W I T N E S S E T H
WHEREAS, the Company desires to authorize the Adviser to engage subadvisory services with respect to the management of the assets of the All America (previously Stock) Fund of the Company (the "All America Fund") in the manner and on the terms hereinafter set forth:
NOW THEREFORE, in consideration of the premises and the mutual agreements herein contained, the Investment Advisory Agreement is hereby supplemented as follows:
1. Engagement of Subadvisory Services. In carrying out its obligations to manage the investment and reinvestment of the assets of the All America Fund, the Adviser shall, as appropriate and consistent with the limitations set forth in Paragraph 4 of the Investment Advisory Agreement engage, on behalf of the All America Fund and with the required consent of the stockholders thereof, he services of one or more subadvisers (the "Subadvisers"), subject to any limitations imposed by the Investment Company Act of 1940.
2. Brokerage and Research Services. With respect only to the All America Fund, Paragraph 5 of the Investment Advisory Agreement shall be interpreted so that the term "Adviser", whenever it appears in the Paragraph, includes the Subadvisers.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement AA to the Investment Advisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA
CAPITAL MANAGEMENT CORPORATION
By: /s/ Thomas J. Verage
-------------------------------
Name: Thomas J. Verage
Title: Senior Vice President
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MUTUAL OF AMERICA
INVESTMENT CORPORATION
By: /s/ Manfred Altstadt ------------------------------- Name: Manfred Altstadt Title: Senior Exec.Vice Pres. & CFO |
Exhibit 4(d)
SUPPLEMENT AE
TO
INVESTMENT ADVISORY AGREEMENT
Supplement AE made this 29th day of April, 1994, by and between Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser"), and Mutual of America Investment Corporation , a Maryland corporation (the "Company"), supplementing the investment advisory agreement dated the 21st day of April, 1993, by and between the Adviser and the Company (the "Investment Advisory Agreement").
W I T N E S S E T H
WHEREAS, the Company desires to authorize the Adviser to engage subadvisory services with respect to the management of the assets of the Aggressive Equity Fund of the Company (the "Aggressive Equity Fund") in the manner and on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the Investment Advisory Agreement is hereby supplemented as follows:
1. Engagement of Subadvisory Services. In carrying out its obligations to manage the investment and reinvestment of the assets of the Aggressive Equity Fund, the Adviser shall as appropriate and consistent with the limitations set forth in Paragraph 4 of the Investment Advisory Agreement engage, on behalf of the Aggressive Equity Fund and with the required consent of the stockholders thereof, the services of one or more subadvisers (the "Subadvisers"), subject to any limitations imposed by the Investment Company Act of 1940.
2. Brokerage and Research Services. With respect only to the Aggressive Equity Fund, Paragraph 5 of the Investment Advisory Agreement shall be interpreted so that the term "Adviser", whenever it appears in the Paragraph, includes the Subadvisers.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement AE to the Investment Advisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA
CAPITAL MANAGEMENT CORPORATION
By: /s/ Thomas J. Verage
-------------------------------
Name: Thomas J. Verage
Title: Senior Vice President
|
MUTUAL OF AMERICA
INVESTMENT CORPORATION
By: /s/ Manfred Altstadt ------------------------------- Name: Manfred Altstadt Title: Senior Exec.Vice Pres. & CFO |
Exhibit 4(f)
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT, made this 2nd day of May, 1994, by and between Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser"), and Fred Alger Management, Inc., a New York corporation (the "Subadviser").
W I T N E S S E T H
WHEREAS, Mutual of America Investment Corporation (the "Investment Company") is engaged in business as a diversified open-end management investment company and is registered as such under the Investment Company Act of 1940 (the "Investment Company Act"); and
WHEREAS, the Investment Company is comprised of eight separate Funds, one of which is designated, and is hereinafter referred to, as the "All America Fund"; and
WHEREAS, the Adviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Investment Company entered into an investment advisory agreement dated April 21, 1993 (the "Original Investment Advisory Agreement") with Mutual of America Life Insurance Company (the "Insurance Company"); and
WHEREAS, the obligations of the Insurance Company under the Original Investment Advisory Agreement were assumed by the Adviser, pursuant to an assumption agreement dated November 3, 1993, between the Insurance Company and the Adviser (the "Assumption Agreement"), which was accepted and agreed to by the Investment Company as of such date (the Original Investment Advisory Agreement and the Assumption Agreement together, the "Investment Advisory Agreement"); and
WHEREAS, the Adviser renders investment supervisory and corporate administration services to the Investment Company, on the terms and conditions set forth in the Investment Advisory Agreement; and
WHEREAS, the Investment Advisory Agreement was supplemented on December 30, 1993 with respect to the management of the assets of the All America Fund; and
WHEREAS, the Subadviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Adviser desires to retain the Subadviser to render investment supervisory services to the Adviser in connection with the Adviser's responsibilities to the All America Fund with respect to such assets of the All America Fund as shall be allocated to the Subadviser (the "Allocated Assets") in the manner and on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the Adviser and the Subadviser agree as follows:
1. General. For the period and on the terms set forth in this Agreement, the Subadviser shall manage the investment and reinvestment of the Allocated Assets of the All America Fund. The Subadviser agrees during such period, at its own expense and subject to the supervision of the Adviser and the Board of Directors of the Investment Company, to render the investment advisory services and assume the obligations herein set forth, for the compensation provided by this Agreement.
2. Investment Management Services. In carrying out its obligations to manage the investment and reinvestment of the Allocated Assets of the All America Fund, the Subadviser shall as appropriate and consistent with the limitations set forth in Paragraph 3 hereof:
(a) perform research and obtain and evaluate pertinent economic, statistical and financial data relevant to the investment policies of the All America Fund as set forth in the then effective registration statement for the Investment Company, as amended from time to time, filed with the Securities and Exchange Commission (the "Registration Statement");
(b) review with the Adviser and the Board of Directors of the Investment Company the overall investment plan for the Allocated Assets of the All America Fund;
(c) make investments consistent with any overall investment plans previously approved by the Adviser and the Board of Directors of the Investment Company;
(d) take such steps as are necessary to implement any overall investment plans approved by the Adviser and the Board of Directors of the Investment Company, including making and carrying out decisions to acquire or dispose of permissible investments, management of investments and any other property constituting the Allocated Assets of the All America Fund, and providing or obtaining such services as may be necessary in managing, acquiring or disposing of investments;
(e) regularly report to the Adviser and the Board of Directors of the Investment Company with respect to all investment activity associated with the management of the Allocated Assets of the All America Fund;
(f) maintain all required accounts, records, memoranda, instructions or authorizations relating to the acquisition or disposition of investments for the All America Fund; and
(g) provide all the office space, facilities, equipment, material and personnel necessary to fulfill its obligations under this Agreement.
3. Limitations on Management Services. The Subadviser shall render investment advisory services with respect to the Allocated Assets of the All America Fund and effect all purchases and sales of investments for the Allocated Assets of the All America Fund in a manner consistent with:
(a) the investment objectives, policies and restrictions for the Allocated Assets of the All America Fund as stated in the Registration Statement;
(b) the procedures and guidelines adopted by the Board of Directors of the Investment Company; and
(c) the provisions of the Investment Company Act.
Any investment program undertaken by the Subadviser pursuant to this Agreement shall at all times be subject to any directives of the Adviser and the Board of Directors of the Investment Company or any duly constituted committee thereof acting pursuant to like authority.
4. Brokerage and Research Services. The Subadviser shall, with respect to the Allocated Assets of the All America Fund, subject to the supervision of the Adviser and the Board of Directors of the Investment Company, arrange for the placement of orders for the All America Fund, either directly with the issuer, with any broker-dealer or underwriter that specializes in the securities for which the order is made or with any other broker or dealer selected by the Subadviser, subject to the following limitations.
The Subadviser is authorized to select the brokers or dealers that will execute the purchases and sales of portfolio securities constituting the Allocated Assets of the All America Fund and will use its best efforts to obtain the most favorable net results, taking into account all appropriate factors, including price, dealer spread or commission, if any, size of the transaction and difficulty of execution. However, in selecting brokers or dealers to execute a particular transaction and in evaluating the best overall terms available, the Subadviser may consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to All America Fund and/or other accounts over which the Subadviser or an affiliate exercises investment discretion. The Subadviser will periodically evaluate the statistical data, research and other investment services provided by brokers and dealers to it. Such services may be used by the Subadviser in connection with the performance of its obligations under this Agreement or in connection with other advisory activities or investment operations.
5. Compensation. As compensation for its investment advisory services to the Adviser, the Subadviser shall receive an amount calculated daily at the annual rate of .45% of the value of the net assets constituting the Allocated Assets of the All America Fund.
6. Expenses. The Subadviser shall be responsible for all expenses incurred in performing the investment advisory services herein set forth, including costs of compensating
and furnishing office space for officers and employees of the Subadviser connected with investment and economic research, trading and investment management for the All America Fund. All brokers' commissions, transfer taxes and other fees relating to purchases and sales of investments for the All America Fund shall be paid out of assets of the All America Fund.
7. Services Not Exclusive. The services rendered by the Subadviser pursuant to this Agreement are not to be deemed exclusive, and the Subadviser may render similar services to other entities so long as its services under this Agreement are not impaired or interfered with.
It is understood that the Subadviser or its affiliates may use any investment research obtained for the benefit of the All America Fund in providing investment advice to its other investment advisory accounts or for use in managing their own accounts. Conversely, such supplemental information obtained by the placement of business for the All America Fund or other entities advised by the Subadviser may be considered by and may be useful to the Subadviser in carrying out its obligations to the All America Fund.
When the Subadviser deems the purchase or sale of a security to be in the best interests of the All America Fund as well as other accounts or companies, it may, to the extent permitted by applicable laws and regulations but will not be obligated to, aggregate the securities to be sold or purchased for the All America Fund with those to be sold or purchased for other accounts or companies in order to obtain favorable execution and low brokerage commissions. In that event, allocation of the securities purchased or sold, as well as the expenses incurred in the transaction, will be made by the Subadviser in the manner it considers to be most equitable and consistent with its fiduciary obligations to the All America Fund and to such other accounts or companies. The Investment Company recognizes that in some cases this procedure may adversely affect the price paid or received by All America Fund or the size of the position obtainable or disposable for the All America Fund.
8. Term of Agreement. This Agreement will continue from year to year but only so long as such continuance is specifically approved at least annually either (i) by the Board of Directors of the Investment Company or (ii) by a vote of a majority of the outstanding voting securities of the All America Fund, provided that in either event such continuance will also be approved by the vote of a majority of the directors who are not interested persons (as defined in the Investment Company Act) of the Investment Company, the Adviser, or the Subadviser, cast in person at a meeting called for the purpose of voting on such approval. In connection with such approvals, the Adviser and the Board of Directors of the Investment Company shall request and evaluate, and the Subadviser shall furnish, such information as may be reasonably necessary to evaluate the terms of this Agreement. This Agreement:
(a) shall be subject to termination, without the payment of any penalty, by the Subadviser on one hundred eighty days' written notice to the Adviser and the Investment Company;
(b) shall be subject to termination, without the payment of any penalty, by the Adviser or the Board of Directors of the Investment Company, or by vote of a majority of the
outstanding shares of the All America Fund, in each case on sixty days' written notice to the Subadviser;
(c) shall not be amended without specific approval of such amendment by the Adviser and (i) the Board of Directors of the Investment Company, or by the vote of a majority of the outstanding shares of the All America Fund, and (ii) a majority of those members of the Board of Directors of the Investment Company who are not parties to this Agreement or interested persons of such a party, cast in person at a meeting called for the purpose of voting on such approval; and
(d) shall automatically terminate upon assignment by either party.
9. Recordkeeping. The Subadviser agrees that all accounts and records that it maintains for the Investment Company shall be the property of the Investment Company and that it will surrender promptly to the designated officers of the Investment Company any or all such accounts and records upon request. The Subadviser further agrees to preserve for the period prescribed by the rules and regulations of the Securities and Exchange Commission all such records and accounts as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts regarding the investment activities with respect to the Allocated Assets of the All America Fund in a confidential manner. All such accounts or records shall be made available, within five (5) business days of a written request, to the Investment Company's accountants or auditors during regular business hours at the Subadviser's offices. In addition, the Subadviser will provide any materials as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts reasonably related to the investment advisory services provided hereunder, as may reasonably be requested in writing by the Adviser or the members of the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction over the Adviser, the Subadviser, or the Investment Company.
10. Interested and Affiliated Persons. It is understood that members, officers, employees or agents of the Investment Company or the Adviser may also be interested in the Subadviser as directors, officers, employees, agents or otherwise.
11. Liability of the Subadviser. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties on the part of the Subadviser (or its officers, directors, agents, employees, controlling persons, and any other person or entity affiliated with the Subadviser or retained by it to perform or assist in the performance of its obligations under this Agreement), neither the Subadviser nor any of its officers, directors, employees or agents shall be subject to liability to the Investment Company or any shareholder of the Investment Company for any act or omission in the course of, or connected with, rendering services hereunder, including without limitation, any error of judgment or mistake of law, or for any loss suffered by the Investment Company or any shareholder of the Investment Company in connection with the matters to which this Agreement relates, except to the extent
specified in the Investment Company Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services.
12. Governing Law. This Agreement is subject to the provisions of the Investment Company Act, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder, including such exemptions therefrom as the Securities and Exchange Commission may grant. Words and phrases used herein shall be interpreted in accordance with that Act and those rules and regulations, and such exemptions.
13. Miscellaneous. The Subadviser shall submit to all regulatory and administrative bodies having jurisdiction over the operations of the Adviser, the Subadviser or the Investment Company, present or future, any materials, reasonably related to the investment advisory services provided hereunder, as may be reasonably requested in writing by the Adviser or the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Subadvisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA CAPITAL
MANAGEMENT CORPORATION
By: /s/ Manfred Altstadt
--------------------------------------
Name: Manfred Altstadt
Title: Senior Executive Vice President
& CFO
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FRED ALGER MANAGEMENT, INC.
By: /s/ Gregory S. Duch
--------------------------------------
Name: Gregory S. Duch
Title: Treasurer
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Exhibit 4(g)
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT, made this 2nd day of May, 1994, by and between Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser"), and James Dravo Oelschlager, a sole proprietor doing business as Oak Associates (the "Subadviser").
W I T N E S S E T H
WHEREAS, Mutual of America Investment Corporation (the "Investment Company") is engaged in business as a diversified open-end management investment company and is registered as such under the Investment Company Act of 1940 (the "Investment Company Act"); and
WHEREAS, the Investment Company is comprised of eight separate Funds, one of which is designated, and is hereinafter referred to, as the "All America Fund"; and
WHEREAS, the Adviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Investment Company entered into an investment advisory agreement dated April 21, 1993 (the "Original Investment Advisory Agreement") with Mutual of America Life Insurance Company (the "Insurance Company"); and
WHEREAS, the obligations of the Insurance Company under the Original Investment Advisory Agreement were assumed by the Adviser, pursuant to an assumption agreement dated November 3, 1993, between the Insurance Company and the Adviser (the "Assumption Agreement"), which was accepted and agreed to by the Investment Company as of such date (the Original Investment Advisory Agreement and the Assumption Agreement together, the "Investment Advisory Agreement"); and
WHEREAS, the Adviser renders investment supervisory and corporate administration services to the Investment Company, on the terms and conditions set forth in the Investment Advisory Agreement; and
WHEREAS, the Investment Advisory Agreement was supplemented on December 30, 1993 with respect to the management of the assets of the All America Fund; and
WHEREAS, the Subadviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Adviser desires to retain the Subadviser to render investment supervisory services to the Adviser in connection with the Adviser's responsibilities to the All America Fund with respect to such assets of the All America Fund as shall be allocated to the Subadviser (the "Allocated Assets") in the manner and on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the Adviser and the Subadviser agree as follows:
1. General. For the period and on the terms set forth in this Agreement, the Subadviser shall manage the investment and reinvestment of the Allocated Assets of the All America Fund. The Subadviser agrees during such period, at its own expense and subject to the supervision of the Adviser and the Board of Directors of the Investment Company, to render the investment advisory services and assume the obligations herein set forth, for the compensation provided by this Agreement.
2. Investment Management Services. In carrying out its obligations to manage the investment and reinvestment of the Allocated Assets of the All America Fund, the Subadviser shall as appropriate and consistent with the limitations set forth in Paragraph 3 hereof:
(a) perform research and obtain and evaluate pertinent economic, statistical and financial data relevant to the investment policies of the All America Fund as set forth in the then effective registration statement for the Investment Company, as amended from time to time, filed with the Securities and Exchange Commission (the "Registration Statement");
(b) review with the Adviser and the Board of Directors of the Investment Company the overall investment plan for the Allocated Assets of the All America Fund;
(c) make investments consistent with any overall investment plans previously approved by the Adviser and the Board of Directors of the Investment Company;
(d) take such steps as are necessary to implement any overall investment plans approved by the Adviser and the Board of Directors of the Investment Company, including making and carrying out decisions to acquire or dispose of permissible investments, management of investments and any other property constituting the Allocated Assets of the All America Fund, and providing or obtaining such services as may be necessary in managing, acquiring or disposing of investments;
(e) regularly report to the Adviser and the Board of Directors of the Investment Company with respect to all investment activity associated with the management of the Allocated Assets of the All America Fund;
(f) maintain all required accounts, records, memoranda, instructions or authorizations relating to the acquisition or disposition of investments for the All America Fund; and
(g) provide all the office space, facilities, equipment, material and personnel necessary to fulfill its obligations under this Agreement.
3. Limitations on Management Services. The Subadviser shall render investment advisory services with respect to the Allocated Assets of the All America Fund and effect all purchases and sales of investments for the Allocated Assets of the All America Fund in a manner consistent with:
(a) the investment objectives, policies and restrictions for the Allocated Assets of the All America Fund as stated in the Registration Statement;
(b) the procedures and guidelines adopted by the Board of Directors of the Investment Company; and
(c) the provisions of the Investment Company Act.
Any investment program undertaken by the Subadviser pursuant to this Agreement shall at all times be subject to any directives of the Adviser and the Board of Directors of the Investment Company or any duly constituted committee thereof acting pursuant to like authority.
4. Brokerage and Research Services. The Subadviser shall, with respect to the Allocated Assets of the All America Fund, subject to the supervision of the Adviser and the Board of Directors of the Investment Company, arrange for the placement of orders for the All America Fund, either directly with the issuer, with any broker-dealer or underwriter that specializes in the securities for which the order is made or with any other broker or dealer selected by the Subadviser, subject to the following limitations.
The Subadviser is authorized to select the brokers or dealers that will execute the purchases and sales of portfolio securities constituting the Allocated Assets of the All America Fund and will use its best efforts to obtain the most favorable net results, taking into account all appropriate factors, including price, dealer spread or commission, if any, size of the transaction and difficulty of execution. However, in selecting brokers or dealers to execute a particular transaction and in evaluating the best overall terms available, the Subadviser may consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to All America Fund and/or other accounts over which the Subadviser or an affiliate exercises investment discretion. The Subadviser will periodically evaluate the statistical data, research and other investment services provided by brokers and dealers to it. Such services may be used by the Subadviser in connection with the performance of its obligations under this Agreement or in connection with other advisory activities or investment operations.
5. Compensation. As compensation for its investment advisory services to the Adviser, the Subadviser shall receive an amount calculated daily at the annual rate of .30% of the value of the net assets constituting the Allocated Assets of the All America Fund.
6. Expenses. The Subadviser shall be responsible for all expenses incurred in performing the investment advisory services herein set forth, including costs of compensating and furnishing office space for officers and employees of the Subadviser connected with investment and
economic research, trading and investment management for the All America Fund. All brokers' commissions, transfer taxes and other fees relating to purchases and sales of investments for the All America Fund shall be paid out of assets of the All America Fund.
7. Services Not Exclusive. The services rendered by the Subadviser pursuant to this Agreement are not to be deemed exclusive, and the Subadviser may render similar services to other entities so long as its services under this Agreement are not impaired or interfered with.
It is understood that the Subadviser or its affiliates may use any investment research obtained for the benefit of the All America Fund in providing investment advice to its other investment advisory accounts or for use in managing their own accounts. Conversely, such supplemental information obtained by the placement of business for the All America Fund or other entities advised by the Subadviser may be considered by and may be useful to the Subadviser in carrying out its obligations to the All America Fund.
When the Subadviser deems the purchase or sale of a security to be in the best interests of the All America Fund as well as other accounts or companies, it may, to the extent permitted by applicable laws and regulations but will not be obligated to, aggregate the securities to be sold or purchased for the All America Fund with those to be sold or purchased for other accounts or companies in order to obtain favorable execution and low brokerage commissions. In that event, allocation of the securities purchased or sold, as well as the expenses incurred in the transaction, will be made by the Subadviser in the manner it considers to be most equitable and consistent with its fiduciary obligations to the All America Fund and to such other accounts or companies. The Investment Company recognizes that in some cases this procedure may adversely affect the price paid or received by All America Fund or the size of the position obtainable or disposable for the All America Fund.
8. Term of Agreement. This Agreement will continue from year to year but only so long as such continuance is specifically approved at least annually either (i) by the Board of Directors of the Investment Company or (ii) by a vote of a majority of the outstanding voting securities of the All America Fund, provided that in either event such continuance will also be approved by the vote of a majority of the directors who are not interested persons (as defined in the Investment Company Act) of the Investment Company, the Adviser, or the Subadviser, cast in person at a meeting called for the purpose of voting on such approval. In connection with such approvals, the Adviser and the Board of Directors of the Investment Company shall request and evaluate, and the Subadviser shall furnish, such information as may be reasonably necessary to evaluate the terms of this Agreement. This Agreement:
(a) shall be subject to termination, without the payment of any penalty, by the Subadviser on one hundred eighty days' written notice to the Adviser and the Investment Company;
(b) shall be subject to termination, without the payment of any penalty, by the Adviser or the Board of Directors of the Investment Company, or by vote of a majority of the
outstanding shares of the All America Fund, in each case on sixty days' written notice to the Subadviser;
(c) shall not be amended without specific approval of such amendment by the Adviser and (i) the Board of Directors of the Investment Company, or by the vote of a majority of the outstanding shares of the All America Fund, and (ii) a majority of those members of the Board of Directors of the Investment Company who are not parties to this Agreement or interested persons of such a party, cast in person at a meeting called for the purpose of voting on such approval; and
(d) shall automatically terminate upon assignment by either party.
9. Recordkeeping. The Subadviser agrees that all accounts and records that it maintains for the Investment Company shall be the property of the Investment Company and that it will surrender promptly to the designated officers of the Investment Company any or all such accounts and records upon request. The Subadviser further agrees to preserve for the period prescribed by the rules and regulations of the Securities and Exchange Commission all such records and accounts as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts regarding the investment activities with respect to the Allocated Assets of the All America Fund in a confidential manner. All such accounts or records shall be made available, within five (5) business days of a written request, to the Investment Company's accountants or auditors during regular business hours at the Subadviser's offices. In addition, the Subadviser will provide any materials as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts reasonably related to the investment advisory services provided hereunder, as may reasonably be requested in writing by the Adviser or the members of the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction over the Adviser, the Subadviser, or the Investment Company.
10. Interested and Affiliated Persons. It is understood that members, officers, employees or agents of the Investment Company or the Adviser may also be interested in the Subadviser as directors, officers, employees, agents or otherwise.
11. Liability of the Subadviser. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties on the part of the Subadviser (or its officers, directors, agents, employees, controlling persons, and any other person or entity affiliated with the Subadviser or retained by it to perform or assist in the performance of its obligations under this Agreement), neither the Subadviser nor any of its officers, directors, employees or agents shall be subject to liability to the Investment Company or any shareholder of the Investment Company for any act or omission in the course of, or connected with, rendering services hereunder, including without limitation, any error of judgment or mistake of law, or for any loss suffered by the Investment Company or any shareholder of the Investment Company in connection with the matters to which this Agreement relates, except to the extent specified in the Investment Company Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services.
12. Governing Law. This Agreement is subject to the provisions of the Investment Company Act, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder, including such exemptions therefrom as the Securities and Exchange Commission may grant. Words and phrases used herein shall be interpreted in accordance with that Act and those rules and regulations, and such exemptions.
13. Miscellaneous. The Subadviser shall submit to all regulatory and administrative bodies having jurisdiction over the operations of the Adviser, the Subadviser or the Investment Company, present or future, any materials, reasonably related to the investment advisory services provided hereunder, as may be reasonably requested in writing by the Adviser or the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Subadvisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA CAPITAL
MANAGEMENT CORPORATION
By: /s/ Thomas J. Verage
` ----------------------------------
Name: Thomas J. Verage
Title: Senior Vice President
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JAMES DRAVO OELSCHLAGER d/b/a/
OAK ASSOCIATES
By: /s/ James Dravo Oelschlager
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Name:
Title:
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Exhibit 4(h)
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT, made this 2nd day of May, 1994, by and between Mutual of America Capital Management Corporation, a Delaware corporation (the "Adviser"), and Palley-Needelman Asset Management, Inc., a California corporation (the "Subadviser").
W I T N E S S E T H
WHEREAS, Mutual of America Investment Corporation (the "Investment Company") is engaged in business as a diversified open-end management investment company and is registered as such under the Investment Company Act of 1940 (the "Investment Company Act"); and
WHEREAS, the Investment Company is comprised of eight separate Funds, one of which is designated, and is hereinafter referred to, as the "All America Fund"; and
WHEREAS, the Adviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Investment Company entered into an investment advisory agreement dated April 21, 1993 (the "Original Investment Advisory Agreement") with Mutual of America Life Insurance Company (the "Insurance Company"); and
WHEREAS, the obligations of the Insurance Company under the Original Investment Advisory Agreement were assumed by the Adviser, pursuant to an assumption agreement dated November 3, 1993, between the Insurance Company and the Adviser (the "Assumption Agreement"), which was accepted and agreed to by the Investment Company as of such date (the Original Investment Advisory Agreement and the Assumption Agreement together, the "Investment Advisory Agreement"); and
WHEREAS, the Adviser renders investment supervisory and corporate administration services to the Investment Company, on the terms and conditions set forth in the Investment Advisory Agreement; and
WHEREAS, the Investment Advisory Agreement was supplemented on December 30, 1993 with respect to the management of the assets of the All America Fund; and
WHEREAS, the Subadviser renders advisory services and is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Adviser desires to retain the Subadviser to render investment supervisory services to the Adviser in connection with the Adviser's responsibilities to the All America Fund with respect to such assets of the All America Fund as shall be allocated to the Subadviser (the "Allocated Assets") in the manner and on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the Adviser and the Subadviser agree as follows:
1. General. For the period and on the terms set forth in this Agreement, the Subadviser shall manage the investment and reinvestment of the Allocated Assets of the All America Fund. The Subadviser agrees during such period, at its own expense and subject to the supervision of the Adviser and the Board of Directors of the Investment Company, to render the investment advisory services and assume the obligations herein set forth, for the compensation provided by this Agreement.
2. Investment Management Services. In carrying out its obligations to manage the investment and reinvestment of the Allocated Assets of the All America Fund, the Subadviser shall as appropriate and consistent with the limitations set forth in Paragraph 3 hereof:
(a) perform research and obtain and evaluate pertinent economic, statistical and financial data relevant to the investment policies of the All America Fund as set forth in the then effective registration statement for the Investment Company, as amended from time to time, filed with the Securities and Exchange Commission (the "Registration Statement");
(b) review with the Adviser and the Board of Directors of the Investment Company the overall investment plan for the Allocated Assets of the All America Fund;
(c) make investments consistent with any overall investment plans previously approved by the Adviser and the Board of Directors of the Investment Company;
(d) take such steps as are necessary to implement any overall investment plans approved by the Adviser and the Board of Directors of the Investment Company, including making and carrying out decisions to acquire or dispose of permissible investments, management of investments and any other property constituting the Allocated Assets of the All America Fund, and providing or obtaining such services as may be necessary in managing, acquiring or disposing of investments;
(e) regularly report to the Adviser and the Board of Directors of the Investment Company with respect to all investment activity associated with the management of the Allocated Assets of the All America Fund;
(f) maintain all required accounts, records, memoranda, instructions or authorizations relating to the acquisition or disposition of investments for the All America Fund; and
(g) provide all the office space, facilities, equipment, material and personnel necessary to fulfill its obligations under this Agreement.
3. Limitations on Management Services. The Subadviser shall render investment advisory services with respect to the Allocated Assets of the All America Fund and effect all
purchases and sales of investments for the Allocated Assets of the All America Fund in a manner consistent with:
(a) the investment objectives, policies and restrictions for the Allocated Assets of the All America Fund as stated in the Registration Statement;
(b) the procedures and guidelines adopted by the Board of Directors of the Investment Company; and
(c) the provisions of the Investment Company Act.
Any investment program undertaken by the Subadviser pursuant to this Agreement shall at all times be subject to any directives of the Adviser and the Board of Directors of the Investment Company or any duly constituted committee thereof acting pursuant to like authority.
4. Brokerage and Research Services. The Subadviser shall, with respect to the Allocated Assets of the All America Fund, subject to the supervision of the Adviser and the Board of Directors of the Investment Company, arrange for the placement of orders for the All America Fund, either directly with the issuer, with any broker-dealer or underwriter that specializes in the securities for which the order is made or with any other broker or dealer selected by the Subadviser, subject to the following limitations.
The Subadviser is authorized to select the brokers or dealers that will execute the purchases and sales of portfolio securities constituting the Allocated Assets of the All America Fund and will use its best efforts to obtain the most favorable net results, taking into account all appropriate factors, including price, dealer spread or commission, if any, size of the transaction and difficulty of execution. However, in selecting brokers or dealers to execute a particular transaction and in evaluating the best overall terms available, the Subadviser may consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to All America Fund and/or other accounts over which the Subadviser or an affiliate exercises investment discretion. The Subadviser will periodically evaluate the statistical data, research and other investment services provided by brokers and dealers to it. Such services may be used by the Subadviser in connection with the performance of its obligations under this Agreement or in connection with other advisory activities or investment operations.
5. Compensation. As compensation for its investment advisory services to the Adviser, the Subadviser shall receive an amount calculated daily at the annual rate of .30% of the value of the net assets constituting the Allocated Assets of the All America Fund.
6. Expenses. The Subadviser shall be responsible for all expenses incurred in performing the investment advisory services herein set forth, including costs of compensating and furnishing office space for officers and employees of the Subadviser connected with investment and economic research, trading and investment management for the All America
Fund. All brokers' commissions, transfer taxes and other fees relating to purchases and sales of investments for the All America Fund shall be paid out of assets of the All America Fund.
7. Services Not Exclusive. The services rendered by the Subadviser pursuant to this Agreement are not to be deemed exclusive, and the Subadviser may render similar services to other entities so long as its services under this Agreement are not impaired or interfered with.
It is understood that the Subadviser or its affiliates may use any investment research obtained for the benefit of the All America Fund in providing investment advice to its other investment advisory accounts or for use in managing their own accounts. Conversely, such supplemental information obtained by the placement of business for the All America Fund or other entities advised by the Subadviser may be considered by and may be useful to the Subadviser in carrying out its obligations to the All America Fund.
When the Subadviser deems the purchase or sale of a security to be in the best interests of the All America Fund as well as other accounts or companies, it may, to the extent permitted by applicable laws and regulations but will not be obligated to, aggregate the securities to be sold or purchased for the All America Fund with those to be sold or purchased for other accounts or companies in order to obtain favorable execution and low brokerage commissions. In that event, allocation of the securities purchased or sold, as well as the expenses incurred in the transaction, will be made by the Subadviser in the manner it considers to be most equitable and consistent with its fiduciary obligations to the All America Fund and to such other accounts or companies. The Investment Company recognizes that in some cases this procedure may adversely affect the price paid or received by All America Fund or the size of the position obtainable or disposable for the All America Fund.
8. Term of Agreement. This Agreement will continue from year to year but only so long as such continuance is specifically approved at least annually either (i) by the Board of Directors of the Investment Company or (ii) by a vote of a majority of the outstanding voting securities of the All America Fund, provided that in either event such continuance will also be approved by the vote of a majority of the directors who are not interested persons (as defined in the Investment Company Act) of the Investment Company, the Adviser, or the Subadviser, cast in person at a meeting called for the purpose of voting on such approval. In connection with such approvals, the Adviser and the Board of Directors of the Investment Company shall request and evaluate, and the Subadviser shall furnish, such information as may be reasonably necessary to evaluate the terms of this Agreement. This Agreement:
(a) shall be subject to termination, without the payment of any penalty, by the Subadviser on one hundred eighty days' written notice to the Adviser and the Investment Company;
(b) shall be subject to termination, without the payment of any penalty, by the Adviser or the Board of Directors of the Investment Company, or by vote of a majority of the outstanding shares of the All America Fund, in each case on sixty days' written notice to the Subadviser;
(c) shall not be amended without specific approval of such amendment by the Adviser and (i) the Board of Directors of the Investment Company, or by the vote of a majority of the outstanding shares of the All America Fund, and (ii) a majority of those members of the Board of Directors of the Investment Company who are not parties to this Agreement or interested persons of such a party, cast in person at a meeting called for the purpose of voting on such approval; and
(d) shall automatically terminate upon assignment by either party.
9. Recordkeeping. The Subadviser agrees that all accounts and records that it maintains for the Investment Company shall be the property of the Investment Company and that it will surrender promptly to the designated officers of the Investment Company any or all such accounts and records upon request. The Subadviser further agrees to preserve for the period prescribed by the rules and regulations of the Securities and Exchange Commission all such records and accounts as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts regarding the investment activities with respect to the Allocated Assets of the All America Fund in a confidential manner. All such accounts or records shall be made available, within five (5) business days of a written request, to the Investment Company's accountants or auditors during regular business hours at the Subadviser's offices. In addition, the Subadviser will provide any materials as are required to be maintained pursuant to said rules. The Subadviser also agrees that it will maintain all records and accounts reasonably related to the investment advisory services provided hereunder, as may reasonably be requested in writing by the Adviser or the members of the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction over the Adviser, the Subadviser, or the Investment Company.
10. Interested and Affiliated Persons. It is understood that members, officers, employees or agents of the Investment Company or the Adviser may also be interested in the Subadviser as directors, officers, employees, agents or otherwise.
11. Liability of the Subadviser. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties on the part of the Subadviser (or its officers, directors, agents, employees, controlling persons, and any other person or entity affiliated with the Subadviser or retained by it to perform or assist in the performance of its obligations under this Agreement), neither the Subadviser nor any of its officers, directors, employees or agents shall be subject to liability to the Investment Company or any shareholder of the Investment Company for any act or omission in the course of, or connected with, rendering services hereunder, including without limitation, any error of judgment or mistake of law, or for any loss suffered by the Investment Company or any shareholder of the Investment Company in connection with the matters to which this Agreement relates, except to the extent specified in the Investment Company Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services.
12. Governing Law. This Agreement is subject to the provisions of the Investment Company Act, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder, including such exemptions therefrom as the Securities and Exchange Commission may grant. Words and phrases used herein shall be interpreted in accordance with that Act and those rules and regulations, and such exemptions.
13. Miscellaneous. The Subadviser shall submit to all regulatory and administrative bodies having jurisdiction over the operations of the Adviser, the Subadviser or the Investment Company, present or future, any materials, reasonably related to the investment advisory services provided hereunder, as may be reasonably requested in writing by the Adviser or the Board of Directors of the Investment Company or as may be required by any governmental agency having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Subadvisory Agreement to be duly executed as of the day and year first above written.
MUTUAL OF AMERICA CAPITAL
MANAGEMENT CORPORATION
By: /s/ Thomas J. Verage
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Name: Thomas J. Verage
Title: Senior Vice President
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PALLEY-NEEDELMAN ASSET MANAGEMENT, INC.
By: /s/ Chet Needelman
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Name: Chet Needelman
Title: CEO
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CHASE
[LOGO] EXHIBIT 7
[FORM OF]
DOMESTIC AND GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective , 1996, and is between THE CHASE MANHATTAN BANK, N.A. (the "Bank") and MUTUAL OF AMERICA INVESTMENT CORPORATION (the "Customer").
1. CUSTOMER ACCOUNTS.
The Bank agrees to establish and maintain the following accounts ("Accounts"):
(a) A custody account in the name of the Customer ("Custody Account") for any
and all stocks, shares, bonds, debentures, notes, mortgages or other obligations
for the payment of money, bullion, coin and any certificates, receipts, warrants
or other instruments representing rights to receive, purchase or subscribe for
the same or evidencing or representing any other rights or interests therein,
including options, futures contracts and options on futures contracts, and other
similar property whether certificated or uncertificated or publicly or privately
issued as may be received by the Bank or its Subcustodian (as defined in Section
3) for the account of the Customer ("Securities"); and
(b) A deposit account in the name of the Customer ("Deposit Account") for any and all cash in any currency received by the Bank or its Subcustodian for the account of the Customer. which cash shall not be subiect to withdrawal by draft or check.
The Customer warrants its authority to: 1) deposit the cash and Securities
("Assets") received in the Accounts and 2) give Instructions (as defined in
Section 11) concerning the Accounts. The Bank may deliver equivalent securities
of the same class in place of those deposited in the Custody Account.
Upon written agreement between the Bank and the Customer, additional Accounts may be established and separately accounted for as additional Accounts under the terms of this Agreement.
2. MAINTENANCE OF SECURITIES AND CASH AT BANK AND SUBCUSTODIAN LOCATIONS.
Unless Instructions specifically require another location acceptable to the Bank:
(a) Securities will be held in the country or other jurisdiction in which the principal trading market for such Securities is located, where such Securities are to be presented for payment or where such Securities are acquired; and
(b) Cash will be credited to an account in a country or other jurisdiction in which such cash may be legally deposited or is the legal currency for the payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or non-interest bearing accounts as may be available for the particular currency. To the extent Instructions are issued and the Bank can comply with such Instructions, the Bank is authorized to maintain cash balances on deposit for the Customer with itself or one of its affiliates at such reasonable rates of interest as may from time to time be paid on such accounts, or in non-interest bearing accounts as the Customer may direct, if acceptable to the Bank.
If the Customer wishes to have any of its Assets held in the custody of an institution other than the established Subcustodians as defined in Section 3 (or their securities depositories), such arrangement must be authorized by a written agreement, signed by the Bank and the Customer.
3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
The Bank may act under this Agreement in the countries and through the subcustodians listed in Schedule A of this Agreement with which the Bank has entered into subcustodial agreements ("Subcustodians"). The Customer authorizes the Bank to hold Assets in the Accounts in accounts which the Bank has established with one or more of its branches or Subcustodians. The Bank and Subcustodians are authorized to hold any of the Securities in their account with any securities depository in which they participate.
The Bank reserves the right to add new, replace or remove Subcustodians. The Customer will be given reasonable notice by the Bank of any amendment to Schedule A regarding Subcustodians. Upon request by the Customer, the Bank will identify the name, address and principal place of business of any Subcustodian of the Customer's Assets and the name and address of the governmental agency or other regulatory authority that supervises or regulates such Subcustodian. Countries may be added or removed from Schedule A by the written agreement of the Bank and the Customer, but the Bank reserves the right to remove Subcustodians from Schedule A upon reasonable notice.
4. USE OF SUBCUSTODIAN.
(a) The Bank will identify the Assets on its books as belonging to the Customer.
(b) A Subcustodian will hold such Assets together with assets belonging to other customers of the Bank in accounts identified on such Subcustodian's books as special custody accounts for the exclusive benefit of customers of the Bank.
(c) Any Assets in the Accounts held by a Subcustodian will be subject only to the instructions of the Bank or its agent. Any Securities held in a securities depository for the account of a Subcustodian will be subject only to the instructions of such Subcustodian.
(d) Any agreement the Bank enters into with a Subcustodian for holding its customer's assets shall provide that such assets will not be subject to any right, charge, security interest, lien or claim of any kind in favor of such Subcustodian except for safe custody or administration, and that the beneficial ownership of such assets will be freely transferable without the payment of money or value other than for safe custody or administration. The foregoing shall not apply to the extent of any special agreement or arrangement made by the Customer with any particular Subcustodian.
5. DEPOSIT ACCOUNT TRANSACTIONS.
(a) The Bank or its Subcustodians will make payments from the Deposit Account upon receipt of Instructions which include all information required by the Bank.
(b) In the event that any payment to be made under this Section 5 exceeds the funds available in the Deposit Account, the Bank, in its discretion, may advance the Customer such excess amount which shall be deemed a loan payable on demand, bearing interest at the rate customarily charged by the Bank on similar loans.
(c) If the Bank credits the Deposit Account on a payable date, or at any time prior to actual collection and reconciliation to the Deposit Account, with interest, dividends, redemptions or any other amount due, the Customer will promptly return any such amount upon oral or written notification: (i) that such amount has not been received in the ordinary course of business or (ii) that such amount was incorrectly credited. If the Customer does not promptly return any amount upon such notification, the Bank shall be entitled, upon oral or written notification to the Customer, to reverse such credit by debiting the Deposit Account for the amount previously credited. The Bank or its Subcustodian shall have no duty or obligation to institute legal proceedings, file a claim or a proof of claim in any insolvency proceeding or take any other action with respect to the collection of such amount, but may act for the Customer upon Instructions after consultation with the Customer. With respect to domestic U.S. and Canadian Securities (the latter if held in DTC), the "Autocredit" procedures described in this subsection (c) shall apply.
6. CUSTODY ACCOUNT TRANSACFFONS.
(a) Securities will be transferred, exchanged or delivered by the Bank or its Subcustodian upon receipt by the Bank of Instructions which include all information required by the Bank. Settlement and payment for Securities received for, and delivery of Securities out of, the Custody Account may be made in accordance with the customary or established securities trading or securities processing practices and procedures in the jurisdiction or market in which the transaction occurs, including, without limitation, delivery of Securities to a purchaser, dealer or their agents against a receipt with the expectation of receiving later payment and free delivery.
Delivery of Securities out of the Custody Account may also be made in any manner specifically required by Instructions acceptable to the Bank.
(b) The Bank, in its discretion, may credit or debit the Accounts on a contractual settlement date with cash or Securities with respect to any sale, exchange or purchase of Securities. Otherwise, such transactions will be credited or debited to the Accounts on the date cash or Securities are actually received by the Bank and reconciled to the Account.
(i) The Bank may reverse credits or debits made to the Accounts in its discretion and upon notice to the Customer if the related transaction fails to settle within a reasonable period, determined by the Bank in its discretion, after the contractual settlement date for the related transaction.
(ii) If any Securities delivered pursuant to this Section 6 are returned by the recipient thereof, the Bank may reverse the credits and debits of the particular transaction within a reasonable time following the return.
7. ACTIONS OF THE BANK.
The Bank shall follow Instructions received regarding assets held in the Accounts. However, until it receives Instructions to the contrary, the Bank will:
(a) Present for payment any Securities which are called, redeemed or retired or otherwise become payable and all coupons and other income items which call for payment upon presentation, to the extent that the Bank or Subcustodian is actually aware of such opportunities.
(b) Execute in the name of the Customer such ownership and other certificates as may be required to obtain payments in respect of Securities.
(c) Exchange interim receipts or temporary Securities for definitive Securities.
(d) Appoint brokers and agents for any transaction involving the Securities, including, without limitation, affiliates of the Bank or any Subcustodian.
(e) Issue monthly statements to the Customer, and at other times mutually agreed upon, identifying the Assets in the Accounts.
The Bank will send the Customer an advice or notification of any transfers of Assets to or from the Accounts. Such statements, advices or notifications shall indicate the identity of the entity having custody of the Assets. Unless the Customer sends the Bank a written exception or objection to any Bank statement within sixty (60) days of receipt, the Customer shall be deemed to have approved such statement. In such event, or where the Customer has otherwise approved any such statement, the Bank shall, to the extent permitted by law, be released, relieved and discharged with respect to all matters set forth in such statement or reasonably implied therefrom as though it had been settled by the decree of a court of competent jurisdiction in an action where
the Customer and all persons having or claiming an interest in the Customer or the Customer's Accounts were parties.
All collections of funds or other property paid or distributed in respect of Securities in the Custody Account shall be made at the risk of the Customer. The Bank shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Bank or by its Subcustodians of any payment, redemption or other transaction regarding Securities in the Custody Account in respect of which the Bank has agreed to take any action under this Agreement.
8. CORPORATE ACTIONS; PROXIES; TAX RECLAIMS.
Proxy voting services may be provided by the Bank or, in whole or in part, by one or more third parties appointed by the Bank (which may be affiliates of the Bank).
(i) Subject to the provisions hereof, the Bank will apply for a reduction of withholding tax and any refund of any tax paid or tax credits which apply in each applicable market in respect of income payments on Securities for the benefit of the Customer which the Bank believes may be available to such Customer.
(ii) The provision of tax reclaim services by the Bank is conditional upon the Bank receiving from the beneficial owner of Securities (A) a declaration of its identity and place of residence and (B) certain other documentation (pro forma copies of which shall be provided by the Bank). The Customer acknowledges that, if the Bank does not receive such declarations, documentation and information, additional United Kingdom taxation will be deducted from all income received in respect of Securities issued outside the United Kingdom and that U.S. non- resident alien tax or U.S. backup withholding tax will be deducted from U.S. source income. The Customer shall provide to the Bank such documentation and information as the Bank may reasonably require in connection with taxation, and warrants that, when given, this information shall be true and correct in every material respect, not misleading in any way, and contain all material information. The Customer undertakes to notify the Bank immediately if any such information requires updating or amendment.
(iii) The Bank shall not be liable to the Customer or any third party for any tax, fines or penalties payable by the Bank or the Customer, and shall be indemnified accordingly, whether these result from the inaccurate completion of documents by the Customer or any third party, or as a result of the provision to the Bank or any third party of inaccurate or misleading information or the withholding of material information by the Customer or any other third party, or as a result of any delay of any revenue authority or any other matter beyond the control of the Bank.
(iv) The Customer confirms that the Bank is authorized to deduct from any cash received or credited to the Cash Account any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Securities or Cash Accounts.
(v) The Bank shall perform tax reclaim services only with respect to taxation levied by the revenue authorities of the countries notified to the Customer from time to time and the Bank may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax
reclaim services are offered. Other than as expressly provided in this subclause, the bank shall have no responsibility with regard to the Customer's tax position or status in any jurisdiction.
(vi) The Customer confirms that the Bank is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Customer or the Securities and/or Cash held for the Customer.
(vii) Tax reclaim services may be provided by the Bank or, in whole or in part, by one or more third parties appointed by the Bank (which may be affiliates of the Bank); provided that the Bank shall be liable for the performance of any such third party to the same extent as the Bank would have been if it performed such services itself.
9. NOMINEES.
Securities which are ordinarily held in registered form may be registered in a nominee name of the Bank, Subcustodian or securities depository, as the case may be. The Bank may, with notice to the Customer, cause any such Securities to cease to be registered in the name of any such nominee and to be registered in the name of the Customer. In the event that any Securities registered in a nominee name are called for partial redemption by the issuer, the Bank may allot the called portion to the respective beneficial holders of such class of security in any manner the Bank deems to be fair and equitable. The Customer agrees to hold the Bank, Subcustodians, and their respective nominees harmless from any liability arising directly or indirectly from their status as a mere record holder of Securities in the Custody Account.
10. AUTHORIZED PERSONS.
As used in this Agreement, the term "Authorized Person" means employees or agents including investment managers as have been designated by written notice from the Customer, attested to or certified by its Secretary or Assistant Secretary with the Corporate Seal affixed, or its designated agent to act on behalf of the Customer under this Agreement. Such persons shall continue to be Authorized Persons until such time as the Bank receives Instructions from the Customer or its designated agent that any such employee or agent is no longer an Authorized Person.
11. INSTRUCTIONS.
Except as provided below, the term "Instructions" means written instructions of any Authorized Person received by the Bank, via telex, TWX, facsimile transmission, bank wire or other teleprocess or instructions given by an electronic or trade information system acceptable to the Bank which the Bank believes in good faith to have been given by Authorized Persons or which are transmitted with proper testing or authentication pursuant to terms and conditions which the Bank may specify. Unless otherwise expressly provided, all Instructions shall continue in full force and effect until canceled or superseded. The Customer shall be responsible
for safeguarding any testkeys, identification codes or other security devices which the Bank shall make available to the Customer or its Authorized Persons. The Bank shall make test keys, identification codes or other security devices available only to the persons specified on Schedule B hereto, as modified from time to time by the written agreement of the Customer and the Bank.
Oral Instructions may only be given for transfers between Accounts and the Bank may rely upon such Instructions if it believes in good faith that the Instruction was issued by an Authorized Person. The Bank may electronically record any Instructions given by telephone, and any other telephone discussions with respect to the Custody Account.
12. STANDARD OF CARE; LIABILITIES.
(a) The Bank shall be responsible for the performance of only such duties as are set forth in this Agreement or expressly contained in Instructions which are consistent with the provisions of this Agreement as follows:
(i) The Bank will use reasonable care with respect to its obligations under this Agreement and the safekeeping of Assets by exercising the same degree of care with respect to the Assets as it would with respect to its own securities and property and will indemnify the Customer and hold the Customer harmless from any loss or liability (including, without limitation, the reasonable fees and disbursements of outside counsel) incurred by the Customer by reason of the negligence (whether through action or inaction) or willful misconduct of the Bank. The Bank shall be liable to the Customer for any loss which shall occur as the result of the failure of a Subcustodian to exercise reasonable care with respect to the safekeeping of such Assets to the same extent that the Bank would be liable to the Customer if the Bank were holding such Assets in New York. In the event of any loss to the Customer by reason of the failure of the Bank or its Subcustodian to utilize reasonable care, the Bank shall be liable to the Customer only to the extent of the Customer's direct damages, to be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special conditions or circumstances. The Bank will not be responsible for the insolvency of any Subcustodian which is not a branch or affiliate of Bank.
(ii) The Bank will not be responsible for any act, omission, default or the solvency of any broker or agent which it or a Subcustodian appoints unless such appointment was made negligently or in bad faith.
(iii) The Bank shall be without liability to the Customer for any action taken or omitted by the Bank whether pursuant to Instructions or otherwise within the scope of this Agreement if such act or omission was in good faith, without negligence. In performing its obligations under this Agreement, the Bank may rely on the genuineness of any document which it believes in good faith to have been validly executed.
(iv) The Customer agrees to pay for and hold the Bank harmless from any
liability or loss resulting from the imposition or assessment of any taxes
or other governmental charges, and any related expenses with respect to
income from or Assets in the Accounts, other than taxes imposed as a
consequence of the Bank's failure to perform the services set forth in
Section 8(c) of this Agreement.
(v) The Bank shall be entitled to rely, and may act, upon the written advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice.
(vi) The Bank need not maintain any insurance for the benefit of the Customer.
(vii) Without limiting the foregoing, the Bank shall not be liable for any loss which results from: 1) the general risk of investing, or 2) investing or holding Assets in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; currency restrictions, devaluations or fluctuations; and market conditions which prevent the orderly execution of securities transactions or affect the value of Assets.
(viii) Neither party shall be liable to the other for any loss due to forces beyond their control including, but not limited to strikes or work stoppages, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, or acts of God.
(ix) The Customer agrees to indemnify the Bank and to hold the Bank harmless from any loss or liability (including, without limitation, the reasonable fees and disbursements of outside counsel) incurred by the Bank arising out of or related to this Agreement and services performed hereunder, except such loss or liabilty that results from the Bank's failure to exercise the standard of care set forth in paragraph (a)(i) of this Section 12. The Customer shall be liable to the Bank only to the extent of the Bank's direct damages, without reference to any special conditions or circumstances.
(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that the Bank shall have no duty or
responsibility to:
(i) question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions;
(ii) supervise or make recommendations with respect to investments or the retention of Securities;
(iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any security other than as provided in Section 5(c) of this Agreement;
(iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which Securities are delivered or payments are made pursuant to this Agreement;
(v) review or reconcile trade confirmations received from brokers. The Customer or its Authorized Persons (as defined in Section 10) issuing Instructions shall bear any responsibility to review such confirmations against Instructions issued to and statements issued by the Bank.
(c) The Customer authorizes the Bank to act under this Agreement notwithstanding that the Bank or any of its divisions or affiliates may have a material interest in a transaction, or circumstances are such that the Bank may have a potential conflict of duty or interest including the fact that the Bank or any of its affiliates may provide brokerage services to other customers, act as financial advisor to the issuer of Securities, act as a lender to the issuer of Securities, act in the same transaction as agent for more than one customer, have a material interest in the issue of Securities, or earn profits from any of the activities listed herein.
13. FEES AND EXPENSES.
The Customer agrees to pay the Bank for its services under this Agreement such amount set forth in Schedule C hereto, as modified from time to time by the written agreement of the Bank and the Customer, together with the Bank's reasonable out-of-pocket or incidental expenses, including, but not limited to, legal fees. The Bank shall have a lien on and is authorized to charge any Accounts of the Customer for any amount owing to the Bank under any provision of this Agreement. In case of any dispute between the Customer and the Bank as to an amount owed, no lien shall be applicable and no charge shall be made until the dispute has been settled, adjudicated or arbitrated.
14. MISCELLANEOUS.
The following Schedules are part of this Agreement:
Schedule A - List of Countries, Subcustodians and Securities Depositories; ---------- Schedule B - Customer Personnel to Receive Security Information; and ---------- Schedule C - Fees of Bank. ---------- |
There are no other provisions of this Agreement and this Agreement supersedes any other agreements, whether written or oral, between the parties. Any amendment to this Agreement must be in writing, executed by both parties.
Bank: The Chase Manhattan Bank, N.A.
110 West 52nd Street
New York, NY 10019
Attention: John K. Breitweig
or facsimile: (212) 554-2905
Customer: Mutual of America Investment Corporation
320 Park Avenue
New York, NY 10022
Attention: Allen Bruckheimer
or facsimile: (212) 224-2535
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the provisions of this Agreement, or may continue to hold the Assets until Instructions are provided to the Bank.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
By:______________________________________
Title:
Date:
THE CHASE MANHATTAN BANK, N.A.
By:______________________________________
Title:
Date:
STATE OF NEW YORK)
: ss.
COUNTY OF NEW YORK)
On this day of , 1996, before me personally came,
to me known, who being by me duly sworn, did depose and say that he/she
resides in
at ; that he/she
is of MUTUAL OF AMERICA INVESTMENT CORPORATION, the entity described in and which executed the foregoing instrument; that he/she knows the seal of said entity, that the seal affixed to said instrument is such seal, that it was so affixed by order of said entity, and that he/she signed his/her name thereto by like order.
Sworn to before me this ______________
day of ______________, 19_____.
Notary
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this day of ,1996, before me personally came
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, to me known, who being by me duly sworn, did depose and say that he/she resides in at ; that he/she is a Vice President of THE CHASE MANHATTAN BANK, (National Association), the corporation described in and which executed the foregoing instrument; that he/she knows the seal of said corporation, that the seal affixed to said instrument is such corporate seal, that it was so affixed by order of the Board of Directors of said corporation, and that he/she signed his/her name thereto by like order.
Sworn to before me this ___________________
day of ________________, 19________.
Notary
ERISA Rider to Domestic and Global Custody Agreement Between The Chase Manhattan Bank, N.A. and Mutual of America Investment Corporation effective ______________, 1996
Customer represents that some of the Assets being placed in the Bank's custody are subject to ERISA. It is understood that in connection therewith the Bank is a service provider and not a fiduciary of the plan and trust to which the assets are related. The Bank shall not be considered a party to the underlying plan and trust and the Customer hereby assumes all responsibility to assure that Instructions issued under this Agreement are in compliance with such plan and trust and ERISA.
This Agreement will be interpreted as being in compliance with the Department of Labor Regulations Section 2550.404b-1 concerning the maintenance of indicia of ownership of plan assets outside of the jurisdiction of the district courts of the United States.
The following modifications are made to the Agreement:
Add the following language to the end of Section 3:
As used in this Agreement, the term Subcustodian and the term securities depositories include a branch of the Bank, a branch of a qualified U.S. bank, an eligible foreign custodian, or an eligible foreign securities depository, where such terms shall mean:
(a) "qualified U.S. bank" shall mean a U.S. bank as described in paragraph
(a)(2)(ii)(A)(1) of the Department of Labor Regulations Section
2550.404b-1;
(b) "eligible foreign custodian" shall mean a banking institution incorporated or organized under the laws of a country other than the United States which is supervised or regulated by that country's government or an agency thereof or other regulatory authority in the foreign jurisdiction having authority over banks; and
(c) "eligible foreign securities depository" shall mean a securities depository or clearing agency, incorporated or organized under the laws of a country other than the United States, which is supervised or regulated by that country's government or an agency thereof or other regulatory authority in the foreign jurisdiction having authority over such depositories or clearing agencies and which is described in paragraph (c)(2) of the Department of Labor Regulations Section 2550.404b-1.
Subsection (d) of this section is modified by deleting the last sentence.
Subsection (b) is amended to read as follows:
(b) In the event that any payment made under this Section 5 exceeds the funds available in the Deposit Account, such discretionary advance shall be deemed a service provided by the Bank under this Agreement for which it is entitled to recover its costs as may be determined by the Bank in good faith.
Add the following paragraph at the end of Section 10:
Customer represents that to the extent that Assets are subject to ERISA: a) Instructions will only be issued by or for a fiduciary pursuant to Department of Labor Regulation Section 404b-1 (a)(2)(i) and b) if Instructions are to be issued by an investment manager, such entity will meet the requirements of Section 3(38) of ERISA and will have been designated by the Customer to manage assets held in the Customer Accounts ("Investment Manager"). An Investment Manager may designate certain of its employees to act as Authorized Persons under this Agreement.
Add the following paragraph at the end of Subsection 14(a):
Instructions to execute foreign exchange transactions with the Bank, its subsidiaries, affiliates or Subcustodians will include (1) the time period in which the transaction must be completed; (2) the location i.e., Chase New York,
Chase London, etc. or the Subcustodian with whom the contract is to be executed and (3) such additional information and guidelines as may be deemed necessary; and, if the Instruction is a standing Instruction, a provision allowing such Instruction to be overridden by specific contrary Instructions.
Mutual Fund Rider to Global Custody Agreement Between The Chase Manhattan Bank, N.A. and Mutual of America Investment Corporation effective __________________
Customer represents that the Assets being placed in the Bank's custody are subject to the Investment Company Act of 1940 (the Act), as the same may be amended from time to time.
Except to the extent that the Bank has specifically agreed to comply with a condition of a rule, regulation, interpretation promulgated by or under the authority of the SEC or the Exemptive Order applicable to accounts of this nature issued to the Bank (Investment Company Act of 1940, Release No. 12053, November 20, 1981), as amended, or unless the Bank has otherwise specifically agreed, the Customer shall be solely responsible to assure that the maintenance of Assets under this Agreement complies with such rules, regulations, interpretations or exemptive order promulgated by or under the authority of the Securities Exchange Commission.
The following modifications are made to the Agreement:
Add the following language to the end of Section 3:
The terms Subcustodian and securities depositories as used in this Agreement shall mean a branch of a qualified U.S. bank, an eligible foreign custodian or an eligible foreign securities depository, which are further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S. bank as defined in Rule 17f-5 under the Investment Company Act of 1940;
(b) "eligible foreign custodian" shall mean (i) a banking institution or trust company incorporated or organized under the laws of a country other than the United States that is regulated as such by that country's government or an agency thereof and that has shareholders' equity in excess of $200 million in U.S. currency (or a foreign currency equivalent thereof), (ii) a majority owned direct or indirect subsidiary of a qualified U.S. bank or bank holding company that is incorporated or organized under the laws of a country other than the United States and that has shareholders' equity in excess of $100 million in U.S. currency (or a foreign currency equivalent thereof) or (iii) any other entity that shall have been so qualified by exemptive order, rule or other appropriate action of the SEC; and
(c) "eligible foreign securities depository" shall mean a securities depository or clearing agency, incorporated or organized under the laws of a country other than the United States, which operates (i) the central system for handling securities or equivalent book-entries in that country, or (ii) a transnational system for the central handling of securities or equivalent book-entries.
The Customer represents that its Board of Directors has approved each of the Subcustodians listed in Schedule A to this Agreement and the terms of the subcustody agreements between the Bank and each Subcustodian, which are attached as Exhibits I through _____ of Schedule A, and further represents that its Board has determined that the use of each Subcustodian and the terms of each subcustody agreement are consistent with the best interests of the Fund(s) and its (their) shareholders. The Bank will supply the Customer with any amendment to Schedule A for approval. The Customer has supplied or will supply the Bank with certified copies of its Board of Directors resolution(s) with respect to the foregoing prior to placing Assets with any Subcustodian so approved.
Add the following language to the end of Section 6:
(c) Unless the Custodian gives the Customer reasonable notice to the contrary, the Custodian will execute, or cause a subcustodian or agent to execute, an escrow receipt relating to any covered call option written by Customer and will deliver such escrow receipt against payment of the premium thereof. The Custodian shall maintain a segregated margin account as necessary in connection with put or call options purchased or sold by the Customer.
(d) If the Customer purchases or sells puts, calls or futures contracts traded on any commodity exchange, the Custodian shall establish a segregated margin account in the name of each futures commission merchant ("FCM"), pursuant to a safekeeping agreement among the Custodian, the Customer and the FCM.
Add the following language to the end of Section 11:
Deposit Account Payments and Custody Account Transactions made pursuant to
Section 5 and 6 of this Agreement may be made only for the purposes listed
below. Instructions must specify the purpose for which any transaction is
to be made and Customer shall be solely responsible to assure that
Instructions are in accord with any limitations or restrictions applicable
to the Customer by law or as may be set forth in its prospectus.
(a) In connection with the purchase or sale of Securities at prices as confirmed by Instructions;
(b) When Securities are called, redeemed or retired, or otherwise become payable;
(c) In exchange for or upon conversion into other securities alone or other securities and cash pursuant to any plan or merger, consolidation, reorganization, recapitalization or readjustment;
(d) Upon conversion of Securities pursuant to their terms into other securities;
(e) Upon exercise of subscription, purchase or other similar rights represented by Securities;
(f) For the payment of interest, taxes, management or supervisory fees, distributions or operating expenses;
(g) In connection with any borrowings by the Customer requiring a pledge of Securities, but only against receipt of amounts borrowed;
(h) In connection with any loans, but only against receipt of adequate collateral as specified in Instructions which shall reflect any restrictions applicable to the Customer;
(i) For the purpose of redeeming shares of the capital stock of the Customer and the delivery to, or the crediting to the account of, the Bank, its Subcustodian or the Customer's transfer agent, such shares to be purchased or redeemed;
(j) For the purpose of redeeming in kind shares of the Customer against delivery to the Bank, its Subcustodian or the Customer's transfer agent of such shares to be so redeemed;
(k) For delivery in accordance with the provisions of any agreement among the Customer, the Bank and a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act") and a member of The National Association of Securities Dealers, Inc. ("NASD"), relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange, or of any similar organization or organizations, regarding escrow or other arrangements in connection with transactions by the Customer;
(l) For release of Securities to designated brokers under covered call options, provided, however, that such Securities shall be released only upon payment to the Bank of monies for the premium due and a receipt for the Securities which are to be held in escrow. Upon exercise of the option, or at expiration, the Bank will receive from brokers the Securities previously deposited. The Bank will act strictly in accordance with Instructions in the delivery of Securities to be held in escrow and will have no responsibility or liability for any such Securities which are not returned promptly when due other than to make proper request for such return;
(m) For spot or forward foreign exchange transactions to facilitate security trading, receipt of income from Securities or related transactions;
(n) For other proper purposes as may be specified in Instructions issued by an officer of the Customer which shall include a statement of the purpose for which the delivery or payment is to be made, the amount of the payment or specific Securities to be delivered, the name of the person or persons to whom delivery or payment is to be made, and a certification that the purpose is a proper purpose under the instruments governing the Customer; and
(o) Upon the termination of this Agreement as set forth in Section 14(i).
Add the following subsection (d) to Section 12:
(d) The Bank hereby warrants to the Customer that in its opinion, after due inquiry, the established procedures to be followed by each of its branches, each branch of a qualified U.S. bank, each eligible foreign custodian and each eligible foreign securities depository holding the Customer's Securities pursuant to this Agreement afford protection for such Securities at least equal to that afforded by the Bank's established procedures with respect to similar securities held by the Bank and its securities depositories in New York.
Upon reasonable request from the Customer, the Bank shall furnish the Customer such reports (or portions thereof) of the Bank's system of internal accounting controls applicable to the Bank's duties under this Agreement. The Bank shall endeavor to obtain and furnish the Customer with such similar reports as it may reasonably request with respect to each Subcustodian and securities depository holding the Customer's assets.
Special Terms and Conditions Rider to
Domestic and Global Custody Agreement
between
The Chase Manhattan Bank, N.A.
and
Mutual of America Investment Corporation
effective , 1996
The following accounts are to be maintained under the Custody Agreement:
Title of Account Account Number ----------------- -------------- All America Fund Bond Fund Mid-Term Bond Fund Short-Term Bond Fund Money Market Fund Composite Fund Aggressive Equity Fund Equity Income Fund |
This Rider may be amended from time to time by Customer and the Bank.
Exhibit 9(a)
[Letterhead of Patrick A. Burns,
Senior Executive Vice President and General Counsel]
June 4, 1999
Mutual of America Investment Corporation
320 Park Avenue
New York, New York 10022
Dear Sirs/Madams:
This opinion restates opinions previously furnished by counsel in connection with offerings of common shares of the Equity Index Fund, All America Fund, Aggressive Equity Fund, Composite Fund, Bond Fund, Mid-Term Bond Fund, Short-Term Bond Fund and Money Market Fund (together, the "Funds") of Mutual of America Investment Corporation (the "Investment Company"). This opinion is furnished in connection with the filing of a Post-Effective Amendment No. 17 to the Registration Statement on Form N-1A by the Investment Company, made for the purpose of filing via EDGAR all necessary exhibits that previously were filed on paper.
The Investment Company offers common shares of the Funds, par value $.01 per share, as described in the Investment Company's current Prospectus and Statement of Additional Information, each dated May 1, 1999.
I have reviewed such documents and records as I have deemed necessary to express an informed opinion on the matters covered hereby. It is my opinion that the common shares of the Funds, when issued and sold in accordance with the Investment Company's current Prospectus and Statement of Additional Information in jurisdictions where such sales have been authorized, are and will be legally issued, fully paid and non-assessable.
I consent to the use of this opinion as an exhibit to Post-Effective Amendment No. 17.
Sincerely,
/s/ Patrick A. Burns |
Exhibit 10(c)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William J. Flynn, Dolores J. Morrissey, Manfred Altstadt, Patrick A. Burns and Stephanie J. Kopp, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ Manfred Altstadt
----------------------------------------
/s/ Dolores J. Morrissey
----------------------------------------
/s/ Peter J. Flanagan
----------------------------------------
/s/ George J. Mertz
----------------------------------------
/s/ James J. Needham
----------------------------------------
/s/ Howard J. Nolan
----------------------------------------
[From Pages C-5 and C-6 of Post-Effective Amendment No. 10 to Registrant's
Registration Statement on Form N-1A, as filed with the Securities and Exchange
Commission on April 19, 1994]
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