Exhibit (b)(1)
AMENDED AND RESTATED
BY-LAWS
OF
XXXXXX XXXXXX FUNDS II
(July 21, 2005)
ARTICLE 1
Agreement and Declaration
of Trust and Principal Office
1.1 Agreement and Declaration of Trust. These Amended and Restated By-Laws shall
be subject to the First Amended and Restated Agreement and Declaration of Trust,
as from time to time in effect (the "Declaration of Trust"), of Xxxxxx Xxxxxx
Funds II (the "Trust"), the Massachusetts business trust established by the
Declaration of Trust.
1.2 Principal Office of the Trust. The principal office of the Trust shall be
located in Boston, Massachusetts.
ARTICLE 2
Meetings of Trustees
2.1 Regular Meetings. Regular meetings of the Trustees may be held without call
or notice at such places and at such times as the Trustees may from time to time
determine, provided that notice of the first regular meeting following any such
determination shall be given to absent Trustees.
2.2 Special Meetings. Special meetings of the Trustees may be held, at any time
and at any place designated in the call of the meeting, when called by the
Chairman of the Board, if any, the President, the Treasurer, any Vice President,
the Secretary or an Assistant Secretary or by two or more Trustees, with
sufficient notice thereof being given to each Trustee by the Secretary or an
Assistant Secretary or by the officer or the Trustees calling the meeting.
2.3 Notice. It shall be sufficient notice to a Trustee of a special meeting to
send notice of the time, date and place of such meeting by (a) mail or courier
at least forty-eight hours in advance of the meeting; (b) by telegram, telefax,
e-mail or by other electro-mechanical means addressed to the Trustee at his or
her usual or last known business or residence address (or fax number or e-mail
address as the case may be) at least twenty-four hours before the meeting; or
(c) to give notice to him or her in person or by telephone at least twenty-four
hours before the meeting. Notice of a meeting need not be given to any Trustee
if a written waiver of notice, executed by him or her before or after the
meeting, is filed with the records of the meeting, or to any Trustee who attends
the meeting without protesting prior thereto or at its commencement the lack of
notice to him or her. Except as required by law, neither notice of a meeting nor
a waiver of a notice need specify the purposes of the meeting.
2.4 Quorum. At any meeting of the Trustees a majority of the Trustees then in
office shall constitute a quorum. Any meeting may be adjourned from time to time
by a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice to any
Trustee who was present at the time of such adjournment; notice of the time and
place of any adjourned session of any such meeting shall, however, be given in a
manner provided in Section 2.3 of these By-Laws to each Trustee who was not
present at the time of such adjournment.
2.5 Action by Vote. When a quorum is present at any meeting, a majority of
Trustees present may take any action, except when a larger vote is expressly
required by law, by the Declaration of Trust or by these By-Laws. Subject to
applicable law, the Trustees by majority vote may delegate to any one of their
number their authority to approve particular matters or take particular actions
on behalf of the Trust.
2.6 Action by Writing. Except as required by law, any action required or
permitted to be taken at any meeting of the Trustees may be taken without a
meeting if a majority of the Trustees (or such larger proportion thereof as
shall be required by any express provision of the Declaration of Trust or these
By-Laws) consent to the action in writing and such written consents are filed
with the records of the meetings of the Trustees. Such consent shall be treated
for all purposes as a vote taken at a meeting of Trustees. Written consents of
the Trustees may be executed in one or more counterparts. Execution of a written
consent or waiver and delivery thereof to the Trust may be accomplished by
telefax, e-mail or other electro-mechanical means.
2.7 Presence through Communications Equipment. Except as required by applicable
law, the Trustees may participate in a meeting of Trustees by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
ARTICLE 3
Officers
3.1 Enumeration; Qualification. The officers of the Trust shall be a President,
a Treasurer, a Secretary, an Assistant Treasurer, an Assistant Secretary and
such other officers, if any, as the Trustees from time to time may in their
discretion elect. The Trust may also have such agents as the Trustees from time
to time may in their discretion appoint. If one or more Chairmen of the Board
are elected, each such person shall be a Trustee and may, but need not be, a
Shareholder, and shall be considered an officer of the Board of Trustees and not
of the Trust. Any other officer may be, but none need be, a Trustee or
Shareholder. Any two or more offices may be held by the same person.
3.2 Election and Tenure. The President, the Treasurer and the Secretary, and
such other officers as the Trustees may in their discretion from time to time
elect shall each be elected by the Trustees to serve until his or her successor
is elected or qualified, or until he or she sooner dies, resigns, is removed or
becomes disqualified. Each officer shall hold office and each agent shall retain
authority at the pleasure of the Trustees.
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3.3 Powers. Subject to the other provisions of these By-Laws, each officer shall
have, in addition to the duties and powers herein and set forth in the
Declaration of Trust, such duties and powers as are commonly incident to the
office occupied by him or her as if the Trust were organized as a Massachusetts
business corporation and such other duties and powers as the Trustees may from
time to time designate.
3.4 President and Vice Presidents. The President shall have the duties and
powers specified in these By-Laws and shall have such other duties and powers as
may be determined by the Trustees. Any Vice Presidents shall have such duties
and powers as shall be designated from time to time by the Trustees.
3.5 Chief Executive Officer. The Chief Executive Officer of the Trust shall be
the President or such other officer as is designated as such by the Trustees and
shall, subject to the control of the Trustees, have general charge and
supervision of the business of the Trust.
3.6 Chairman of the Board. If a Chairman of the Board of Trustees is elected, he
or she shall have the duties and powers specified in these By-Laws and shall
have such other duties and powers as may be determined by the Trustees. Except
as the Trustees or the By-Laws shall otherwise determine or provide, the
Chairman will preside at all meetings of the Shareholders and of the Trustees.
Except to the extent the Trustees otherwise determine, if the Chairman is absent
for a meeting of the Board of Trustees or if there is no Chairman, either the
Chairman of the Contract Review and Governance Committee or the Chairman of the
Audit Committee shall preside, as determined by the Board of Trustees. Except as
the Trustees otherwise determine, if the Chairman is absent for a meeting of the
Shareholders, the President of the Trust or such other officer of the Trust as
is designated by the President shall preside. If the Trustees determine to have
two or more Co-Chairmen of the Board, the duties of Chairman (including
presiding at meetings of the Trustees) shall be shared among the Co-Chairmen in
such manner as the Trustees may from time to time determine.
3.7 Treasurer; Assistant Treasurer. The Treasurer shall be the chief financial
and accounting officer of the Trust, and shall, subject to the provisions of the
Declaration of Trust and to any arrangement made by the Trustees with a
custodian, investment adviser or manager, administrator or transfer, shareholder
servicing or similar agent, be in charge of the valuable papers, books of
account and accounting records of the Trust, and shall have such other duties
and powers as may be designated from time to time by the Trustees or by the
President.
Any Assistant Treasurer shall have the duties and powers specified in these
By-Laws and may perform such duties of the Treasurer as the Treasurer or the
Trustees may assign, and, in the absence of the Treasurer, an Assistant
Treasurer may perform all of the duties of the Treasurer.
3.8 Secretary; Assistant Secretary. The Secretary or an Assistant Secretary
shall record all proceedings of the Shareholders and the Trustees in books to be
kept therefor, which books or a copy thereof shall be kept at the principal
office of the Trust. In the absence of the Secretary from any meeting of the
Shareholders or Trustees, an Assistant Secretary, or if there be none or if he
or she is absent, a temporary secretary chosen at such meeting shall record the
proceedings thereof in the aforesaid books.
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Any Assistant Secretary shall have the duties and powers specified in these
By-Laws and may perform such duties of the Secretary as the Secretary or the
Board of Trustees may assign, and, in the absence of the Secretary, an Assistant
Secretary may perform all of the duties of the Secretary.
3.9 Chief Legal Officer. The Chief Legal Officer shall, pursuant to Section 307
of the Xxxxxxxx-Xxxxx Act of 2002, review all reports of potential material
violations of securities laws, breach of fiduciary duty or similar violations
"up the ladder" to the Funds, evaluate the merits of the reports, and direct
investigative next steps as applicable and shall perform such other duties as
the Board may from time to time determine.
3.10 Chief Compliance Officer. The Chief Compliance Officer shall, pursuant to
Rule 38a-1 under the Investment Company Act of 1940, administer the funds'
compliance policies and procedures and shall perform such other duties as the
Board may from time to time determine.
3.11 Anti-Money Laundering Officer. The Anti-Money Laundering Officer will
administer the Trust's anti-money laundering compliance activities and shall
perform such other duties as the Board may from time to time determine.
3.12 Resignations; Removals. Any officer may resign at any time by written
instrument signed by him or her and delivered to the Chairman, if any, the
President or the Secretary, or to a meeting of the Trustees. Such resignation
shall be effective upon receipt unless specified to be effective at some other
time. The Trustees may remove any officer with or without cause. Except to the
extent expressly provided in a written agreement with the Trust, no officer
resigning and no officer removed shall have any right to any compensation for
any period following his or her resignation or removal, or any right to damages
on account of such removal.
ARTICLE 4
Committees
4.1 Quorum; Voting. Except as provided below or as otherwise specifically
provided in the resolutions constituting a Committee of the Trustees and
providing for the conduct of its meetings or in the charter of such committee
adopted by the Trustees, a majority of the members of any Committee of the
Trustees shall constitute a quorum for the transaction of business, and any
action of such a Committee may be taken at a meeting by a vote of a majority of
the members present (a quorum being present) or evidenced by one or more
writings signed by such a majority. Members of a Committee may participate in a
meeting of such Committee by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting.
Except as specifically provided in the resolutions constituting a Committee of
the Trustees and providing for the conduct of its meetings or in the charter of
such committee adopted by the Trustees, Article 2, Section 2.3 of these By-Laws
relating to special meetings of the Trustees
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shall govern the notice requirements for Committee meetings, provided, however,
that such notice need be given only to the Trustees who are members of such
Committee.
ARTICLE 5
Indemnification
5.1 Trustees, Officers, etc. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trust's request as directors,
officers or Trustees of another organization in which the Trust has any interest
as a shareholder, creditor or otherwise) (hereinafter referred to as a "Covered
Person") against all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees reasonably incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of any alleged act or
omission as a Trustee or officer or by reason of his or her being or having been
such a Covered Person except with respect to any matter as to which such Covered
Person shall have been finally adjudicated in any such action, suit or other
proceeding not to have acted in good faith in the reasonable belief that such
Covered Person's action was in the best interests of the Trust and except that
no Covered Person shall be indemnified against any liability to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office. Expenses, including counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), shall be paid from time to time by the
Trust to a Trustee who is not an "interested person" of the Trust and may be
paid from time to time by the Trust to a Trustee who is an "interested person"
of the Trust or to an officer in advance of the final disposition of any such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Covered Person to repay amounts so paid to the Trust if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article, provided, however, that either (a) such Covered Person shall have
provided appropriate security for such undertaking, (b) the Trust shall be
insured against losses arising from any such advance payments or (c) either a
majority of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the matter), or
independent legal counsel in a written opinion, shall have determined, based
upon a review of readily available facts (as opposed to a full trial type
inquiry) that there is reason to believe that such Covered Person will be found
entitled to indemnification under this Article. For purposes of the
determination or opinion referred to in clause (c), the majority of
disinterested Trustees acting on the matter or independent legal counsel, as the
case may be, shall afford the Covered Person a rebuttable presumption that the
Covered Person has not engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
5.2 Compromise Payment. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an adjudication by a
court, or by any other body before which the proceeding was brought, that such
Covered Person has not acted in good faith in the reasonable belief that such
Covered Person's action was in the best interests
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of the Trust or is liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office, indemnification shall be provided
if (a) approved, after notice that it involves such indemnification, by at least
a majority of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts (as opposed to a
full trial type inquiry) that such Covered Person has acted in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
the Trust and is not liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office, or (b) there has been
obtained an opinion in writing of independent legal counsel, based upon a review
of readily available facts (as opposed to a full trial type inquiry) to the
effect that such Covered Person appears to have acted in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
the Trust and that such indemnification would not protect such Covered Person
against any liability to the Trust to which such Covered Person 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 or her office.
Any approval pursuant to this Section shall not prevent the recovery from any
Covered Person of any amount paid to such Covered Person in accordance with this
Section as indemnification if such Covered Person is subsequently adjudicated by
a court of competent jurisdiction to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
5.3 Indemnification Not Exclusive. The right of indemnification hereby provided
shall not be exclusive of or affect any other rights to which any such Covered
Person may be entitled. As used in this Article 5, the term "Covered Person"
shall include such person's heirs, executors and administrators; and a
"disinterested Trustee" is a Trustee who is not an "interested person" of the
Trust as defined in Section 2(a)(19) of the Investment Company Act of 1940 (or
exempted from being an "interested person" by any rule, regulation or order of
the Securities and Exchange Commission) and against whom none of the actions,
suits or other proceedings in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending. Nothing
contained in this Article shall affect any rights to indemnification to which
personnel of the Trust, other than Trustees and officers, and other persons may
be entitled by contract or otherwise under law, nor the power of the Trust to
purchase and maintain liability insurance on behalf of any such person.
ARTICLE 6
Reports
6.1 General. The Trustees and officers shall render reports at the time and in
the manner required by the Declaration of Trust or any applicable law. Officers
shall render such additional reports as they may deem desirable or as may from
time to time be required by the Trustees.
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ARTICLE 7
Fiscal Year
7.1 General. The initial fiscal year of the Trust and/or any Series thereof
shall end on such date as is determined in advance or in arrears by the
Treasurer or the Trustees and subsequent fiscal years shall end on such date in
subsequent years. The Trustees shall have the power and authority to amend the
year-end date for the fiscal year of the Trust and/or any Series thereof. The
Trust and any such Series thereof may have different fiscal year-end dates if
deemed necessary or appropriate by the Trustees.
ARTICLE 8
Seal
8.1 General. The seal of the Trust shall consist of a flat-faced die with the
word "Massachusetts," together with the name of the Trust and the year of its
organization cut or engraved thereon, but, unless otherwise required by the
Trustees, the seal shall not be necessary to be placed on, and its absence shall
not impair the validity of, any document, instrument or other paper executed and
delivered by or on behalf of the Trust.
ARTICLE 9
Execution of Papers
9.1 General. Except as the Trustees may generally or in particular cases
authorize the execution thereof in some other manner, all checks, notes, drafts
and other obligations and all registration statements and amendments thereto and
all applications and amendments thereto to the Securities and Exchange
Commission shall be signed by the Chairman, if any, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or any of such other officers or agents as shall be designated for
that purpose by a vote of the Trustees.
ARTICLE 10
Issuance of Share Certificates
10.1 Share Certificates. In lieu of issuing certificates for shares, the
Trustees or the transfer agent may either issue receipts therefor or may keep
accounts on the books of the Trust for the record holders of such shares, who
shall in either case be deemed, for all purposes hereunder, to be the holders of
certificates for such shares as if they had accepted such certificates and shall
be held to have expressly assented and agreed to the terms of this Article 10.
The Trustees may at any time authorize the issuance of share certificates. In
that event, each shareholder shall be entitled to a certificate stating the
number of shares owned by him or her, in such form as shall be prescribed from
time to time by the Trustees. Such certificates shall be signed by the President
or any Vice President and by the Treasurer or any Assistant Treasurer.
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Such signatures may be a facsimile if the certificates are signed by a transfer
agent or registrar, other than a Trustee, office or employee of the Trust. In
case any officer who has signed or whose facsimile signature has been placed on
such certificate shall cease to be such officer before such officer is issued,
it may be issued by the Trust with the same effect as if he or she were such
officer at the time of its issue.
10.2 Loss of Certificates. In case of the alleged loss or destruction or the
mutilation of a share certificate, a duplicate certificate may be issued in
place thereof, upon such terms as the Trustees shall prescribe.
10.3 Issuance of New Certificates to Pledgee. A pledgee of shares transferred as
collateral security shall be entitled to a new certificate if the instrument of
transfer substantially describes the debt or duty that is intended to be secured
thereby. Such new certificate shall express on its face that it is held as
collateral security, and the name of the pledgor shall be stated thereon, who
alone shall be liable as a shareholder and entitled to vote thereon.
10.4 Discontinuance of Issuance of Certificates. The Trustees may at any time
discontinue the issuance of share certificates and may, by written notice to
each shareholder, require the surrender of share certificates to the Trust for
cancellation. Such surrender and cancellation shall not effect the ownership of
shares in the Trust.
ARTICLE 11
Provisions Relating to the
Conduct of the Trust's Business
11.1 Determination of Net Income and Net Asset Value Per Share. The Trustees or
any officer or officers or agent or agents of the Trust designated from time to
time for this purpose by the Trustees shall determine at least once daily the
net income and the value of all the assets attributable to any class or series
of shares of the Trust on each day on which the New York Stock Exchange is open
for unrestricted trading and at such other times as the Trustees shall
designate. The net income and net asset value per share of each class and each
series of shares of the Trust shall be determined in accordance with the
Investment Company Act of 1940 and the rules and regulations thereunder and any
related procedures and/or policies of the Trust, or an officer or officers or
agent or agents, as aforesaid, as adopted or authorized by the Trustees from
time to time.
11.2 Voting Power. Each whole share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional share shall be
entitled to a proportionate fractional vote.
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ARTICLE 12
Shareholders' Voting Powers and Meetings
12.1 Record Dates. For the purpose of determining the shareholders who are
entitled to vote or act at any meeting or any adjournment thereof, or who are
entitled to receive payment of any dividend or of any other distribution, the
Trustees may from time to time fix a time, which shall be not more than 90 days
before the date of any meeting of shareholders or the date for the payment of
any dividend or of any distribution, and in such case only shareholders of
record on such record date shall have the right notwithstanding any transfer of
shares on the books of the Trust after the record date; or without fixing such
record date the Trustees may for any of such purposes close the register or
transfer books for all or any of such period.
ARTICLE 13
Amendments to the By-Laws
13.1 General. These By-Laws may be amended or repealed, in whole or in part, by
a majority of the Trustees then in office at any meeting of the Trustees, or by
written consent in lieu thereof.
ARTICLE 14
Proxy Instructions
14.1 Proxy Instructions Transmitted by Telephonic or Electronic Means. The
placing of a Shareholder's name on a proxy pursuant to telephonic or
electronically transmitted instructions obtained pursuant to procedures
reasonably designed to verify that such instructions have been authorized by
such Shareholder shall constitute execution of such proxy by or on behalf of
such Shareholder.
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