Exhibit 77Q(1)(a)(i)
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.
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
ommonly 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.
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 Trusts 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 xxx 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 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 Trusts
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
Persons 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 Persons 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 Persons 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
Persons action was in the best interests 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 Persons 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 Persons 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 Persons
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
persons 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.
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. 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 Trusts 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.
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 Shareholders 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.
Exhibit 77Q1(a)(i) - By-laws.DOC -9-
Exhibit 77Q1(a)(i) - By-laws.DOC
