Exhibit 99.2(a)
UM INVESTMENT TRUST II
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made this 19th
day of July, 2004 by the Trustees hereunder and by the holders of shares of
beneficial interest issued hereunder and to be issued hereunder as hereinafter
provided, amending and restating the Agreement and Declaration of Trust dated
April 14, 2004 (the "Original Declaration of Trust"):
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts voluntary association with transferable
shares in accordance with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby amend and restate the Original
Declaration of Trust to read in its entirety as follows and do hereby declare
that they will hold all cash, securities and other assets, which they may from
time to time acquire in any manner as Trustees hereunder, IN TRUST to manage and
dispose of the same upon the following terms and conditions for the benefit of
the holders from time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
NAME
Section 1. This Trust shall be known as "UM Investment Trust II", and the
Trustees shall conduct the business of the Trust under that name or any other
name as they may from time to time determine.
DEFINITIONS
Section 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) "Trust" refers to the Massachusetts business trust established
by this Agreement and Declaration of Trust, as amended or restated from
time to time;
(b) "Trustees" refers to the Trustees of the Trust elected in
accordance with Article IV hereof;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided
from time to time or, if more than one Series or Class of Shares is
authorized by the Trustees, the equal proportionate transferable units into
which each Series or Class of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder
Vote" (the sixty-seven percent (67%) or fifty percent (50%) requirement of
the third sentence of Section 2(a)(42) of the 1940 Act, whichever may be
applicable) shall have the meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust, as amended or
restated from time to time;
(i) "Series" or "Series of Shares" refers to the one or more
separate investment portfolios of the Trust into which the assets and
liabilities of the Trust may be divided and the Shares of the Trust
representing the beneficial interest of Shareholders in such respective
portfolios; and
(j) "Class" or "Class of Shares" refers to the division of Shares
representing any Series into two or more Classes as provided in Article
III, Section 1 hereof.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights of a
financial character (which may include shares or interests in other investment
funds, whether or not registered under the 0000 Xxx) and to carry on such other
business as the Trustees may from time to time determine pursuant to their
authority under this Declaration of Trust.
ARTICLE III
SHARES
DIVISION OF BENEFICIAL INTEREST
Section 1. The Shares of the Trust shall be issued in one or more Series
as the Trustees may, without Shareholder approval, authorize. Each Series shall
be preferred over all other Series in respect of the assets specifically
allocated to that Series within the meaning of the 1940
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Act and shall represent a separate investment portfolio of the Trust. The
beneficial interest in each Series shall at all times be divided into Shares,
each of which shall, except as provided in the following sentence, represent an
equal proportionate interest in the Series with each other Share of the same
Series, none having priority or preference over another. The Trustees may,
without Shareholder approval, divide the Shares of any Series into two or more
Classes, Shares of each such Class having such par value and such preferences
and special or relative rights and privileges (including conversion rights, if
any) as the Trustees may determine or as shall be set forth in the By-Laws. The
number of Shares authorized shall be unlimited. The Trustees may from time to
time divide or combine the Shares of any Series or Class into a greater or
lesser number without thereby changing the proportionate beneficial interest in
the Series or Class.
OWNERSHIP OF SHARES
Section 2. The ownership of Shares shall be recorded on the books of the
Trust or a transfer or similar agent. No certificates certifying the ownership
of Shares shall be issued except as the Trustees may otherwise determine from
time to time. The Trustees may make such rules as they consider appropriate for
the issuance of Share certificates, the transfer of Shares and similar matters.
The record books of the Trust as kept by the Trust or any transfer or similar
agent, as the case may be, shall be conclusive as to who are the Shareholders of
each Series and Class and as to the number of Shares of each Series and Class
held from time to time by each Shareholder.
INVESTMENT IN THE TRUST
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist of cash
or tangible or intangible property or a combination thereof, as they or the
By-Laws from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares of
each Series, together with all income, earnings, profits and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to the Series of Shares
with respect to which the same were received by the Trust for all purposes,
subject only to the rights of creditors, and shall be so handled upon the books
of account of the Trust and are herein referred to as "assets of" such Series.
NO PREEMPTIVE RIGHTS
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust.
DERIVATIVE CLAIMS
Section 5. No Shareholder shall have the right to bring or maintain any
court action, proceeding or claim on behalf of the Trust or any Series or Class
without first making demand on the Trustees requesting the Trustees to bring or
maintain such action, proceeding or claim. Such demand shall not be excused
under any circumstances, including claims of alleged interest on the part of the
Trustees, unless the plaintiff makes a specific showing that irreparable injury
to the
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Trust, Series or Class would otherwise result. Such demand shall be mailed to
the Secretary of the Trust at the Trust's principal office and shall set forth
in reasonable detail the nature of the proposed court action, proceeding or
claim and the essential facts relied upon by the Shareholder to support the
allegations made in the demand. The Trustees shall consider such demand within
45 days after its receipt by the Trust. In their sole discretion, the Trustees
may submit the matter to a vote of Shareholders of the Trust of any Series or
Class, as appropriate. Any decision by the Trustees to bring, maintain or settle
(or not to bring, maintain or settle) such court action, proceeding or claim, or
to submit the matter to a vote of Shareholders, shall be made by the Trustees in
their business judgment and shall be binding upon the Shareholders.
DIRECT CLAIMS
Section 6. No group of Shareholders shall have the right to bring or
maintain a direct action or claim for monetary damages against the Trust or the
Trustees predicated upon an express or implied right of action under this
Declaration or the 1940 Act (excepting rights of action permitted under section
36(b) of the 1940 Act), nor shall any single Shareholder, who is similarly
situated to one or more other Shareholders with respect to an alleged injury,
have the right to bring such an action, unless such group of Shareholders or
such Shareholder has obtained authorization from the Trustees to bring the
action. The requirement of authorization shall not be excused under any
circumstances, including claims of alleged interest on the part of the Trustees.
A request for authorization shall be mailed to the Secretary of the Trust at the
Trust's principal office and shall set forth with particularity the nature of
the proposed court action, proceeding or claim and the essential facts relied
upon by the group of Shareholders or Shareholder to support the allegations made
in the request. The Trustees shall consider such request within 45 days after
its receipt by the Trust. In their sole discretion, the Trustees may submit the
matter to a vote of Shareholders of the Trust or Series or Class of Shares, as
appropriate. Any decision by the Trustees to settle or to authorize (or not to
settle or not to authorize) such court action, proceeding or claim, or to submit
the matter to a vote of Shareholders, shall be binding upon the group of
Shareholders or Shareholder seeking authorization.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 7. Shares shall be deemed to be personal property giving only the
rights provided in this Declaration of Trust or the By-Laws. Every Shareholder
by virtue of having become a Shareholder shall be held to have expressly
assented and agreed to the terms of this Declaration of Trust and the By-Laws.
The death of a Shareholder during the continuance of the Trust shall not operate
to terminate the same nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the Trust
or the Trustees, but such representative shall be entitled only to the rights of
said decedent under this Declaration of Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust, shall have any power to bind personally any Shareholder, nor
except as specifically provided in this Declaration of Trust to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
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TRANSFER OF SHARES
Section 8. Shares may not be assigned, transferred, pledged, mortgaged,
hypothecated, sold or otherwise disposed of, encumbered or conveyed
(collectively, a "Transfer"), except pursuant to a valid exemption from
registration pursuant to the Securities Act of 1933, as amended, or the
regulations thereunder (a "1933 Act Exemption"). Unless otherwise waived by the
President of the Trust in his or her sole discretion, any Transfer shall be made
only upon the receipt by the Trust of a written opinion of counsel for the Trust
or of other counsel reasonably satisfactory to the Trust (which opinion shall be
obtained at the expense of the transferor) that such Transfer will be made
pursuant to a 1933 Act Exemption. A Shareholder who Transfers any Shares may be
charged reasonable expenses, including without limitation attorneys' and
accountants' fees, incurred by the Trust in connection with the Transfer.
ARTICLE IV
THE TRUSTEES
ELECTION, TENURE AND REMOVAL
Section 1. The Trustees may fix the number of Trustees or fill vacancies
in the Trustees, including vacancies arising from an increase in the number of
Trustees. Each Trustee shall serve during the continued lifetime of the Trust
until he or she dies, resigns or is removed, or, if sooner, until the next
meeting of Shareholders called for the purpose of electing Trustees and until
the election and qualification of his or her successor. Any Trustee may resign
at any time by written instrument signed by him or her and delivered to any
officer of the Trust or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee 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. The Shareholders may fix the number
of Trustees and elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose and to the extent required by applicable law,
including paragraphs (a) and (b) of Section 16 of the 1940 Act.
No natural person shall serve as Trustee after the holders of record of not
less than two-thirds of the outstanding Shares have declared that such Trustee
be removed from that office either by declaration in writing filed with the
Trust's custodian or by votes cast in person or by proxy at a meeting called for
the purpose. The Trustees shall promptly call a meeting of Shareholders for the
purpose of voting upon the question of removal of any Trustee when requested to
do so in writing by the record holders of not less than ten percent (10%) of the
outstanding Shares.
Any Trustee may be removed from office by the Trustees at any time for
"Cause" (as hereinafter defined) by written instrument, signed by at least
two-thirds of the remaining Trustees, specifying the date when such removal
shall become effective. "Cause" for these purposes shall include, but not be
limited to, failure to comply with such written policies as may from time to
time be adopted by at least two-thirds of the Trustees with respect to the
conduct of Trustees and attendance at meetings.
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In addition, any Trustee who has been incapacitated with illness or injury,
as determined by a majority of the other Trustees, may be removed from office by
a written instrument signed by at least a majority of the remaining Trustees
specifying the date when such removal shall become effective.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 2. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
POWERS
Section 3. Subject to the provisions of this Declaration of Trust, the
business of the Trust shall be managed by the Trustees, and they shall have all
powers necessary or convenient to carry out that responsibility. Without
limiting the foregoing, the Trustees may adopt By-Laws not inconsistent with
this Declaration of Trust providing for the regulation and management of the
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may fill vacancies,
including vacancies caused by enlargement of their number and may remove
Trustees in accordance with the terms and provisions of Section 1 of this
Article IV; they may elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate; they may appoint
from their own number, and terminate, any one or more committees consisting of
two or more Trustees, including an executive committee which may, when the
Trustees are not in session, exercise some or all of the power and authority of
the Trustees as the Trustees may determine; they may employ one or more
custodians of the assets of the Trust and may authorize such custodians to
employ subcustodians and to deposit all or any part of such assets in a system
or systems for the central handling of securities or with a Federal Reserve
Bank, retain a transfer agent or a Shareholder servicing agent, or both, provide
for the distribution of Shares by the Trust, through one or more principal
underwriters or otherwise, set record dates for the determination of
Shareholders with respect to various matters, and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease,
write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust;
(c) To act as a distributor of shares and as underwriter of, or
broker or dealer in, securities and other property;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such
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person or persons such power and discretion with relation to securities or
property as the Trustees shall deem proper;
(e) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise;
(g) To allocate assets, liabilities, income and expenses of the
Trust to a particular Series of Shares or to apportion the same among two
or more Series, provided that any liabilities or expenses incurred by a
particular Series of Shares shall be payable solely out of the assets of
that Series; and, to the extent necessary or appropriate to give effect to
the preferences and special or relative rights and privileges of any
Classes of Shares, to allocate assets, liabilities, income and expenses of
a Series to a particular Class of Shares of that Series or to apportion the
same among two or more Classes of Shares of that Series;
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security of which is or was held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any security held
in the Trust;
(i) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection
to deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to
pay, such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(j) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(k) To enter into joint ventures, general or limited partnerships,
limited liability companies, and any other combinations or associations;
(l) To borrow funds or other property;
(m) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge
the Trust property or any part thereof to secure any of or all such
obligations;
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(n) To purchase or otherwise acquire Shares, from time to time as
provided in the By-Laws or as the Trustees shall otherwise deem
appropriate;
(o) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
Trust's business, including, without limitation, insurance policies
insuring the assets of the Trust and payment of distributions and principal
on its portfolio investments, and insurance policies insuring any or all of
the Shareholders, Trustees, officers, employees, agents, investment
advisers, subadvisers or managers, principal underwriters or independent
contractors of the Trust individually against all claims and liabilities of
every nature arising by reason of holding or having held any such office or
position, or by reason of any action alleged to have been taken or omitted
by any such person as Shareholder, Trustee, officer, employee, agent,
investment adviser, subadviser or manager, principal underwriter or
independent contractor, whether or not the Trust would have the power to
indemnify such person against such liability;
(p) To pay pensions as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of
the Trust; and
(q) To engage in any other lawful act or activity in which
corporations organized under the Massachusetts Business Corporation Act, as
amended from time to time, may engage.
The foregoing enumeration of the powers and authority of the Trustees shall
be read as broadly and liberally as possible, it being the intent of the
foregoing to in no way limit the Trustees' powers and authority.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. The Trustees shall
not be required to obtain any court order to deal with any assets of the Trust
or take any other action hereunder.
Except as otherwise provided herein or from time to time in the By-Laws,
any action to be taken by the Trustees may be taken (A) by a majority of the
Trustees present at a meeting of the Trustees (a quorum being present), within
or without Massachusetts, including any meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear one another at the same time
(participation by which means shall for all purposes constitute presence in
person at a meeting), or (B) by written consents of a majority of the Trustees
then in office (which written consents shall be filed with the records of the
meetings of the Trustees and shall be treated for all purposes as a vote taken
at a meeting of Trustees).
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PAYMENT OF EXPENSES BY TRUST AND BY SHAREHOLDERS
Section 4. The Trustees are authorized to pay or to cause to be paid out
of the principal or income of the Trust, or partly out of principal and partly
out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, in connection with
the management thereof, or in connection with the financing of the sale of
Shares, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees, any
investment adviser, manager or sub-adviser, administrator, principal
underwriter, auditor, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur, provided,
however, that all expenses, fees, charges, taxes and liabilities incurred by or
arising in connection with a particular Series of Shares, as determined by the
Trustees, shall be payable solely out of the assets of that Series and may, as
the Trustees from time to time may determine, be allocated to a particular Class
of Shares of a Series or apportioned among two or more Classes of Shares of a
Series.
The Trustees shall have the power, as frequently as they may determine, to
cause each Shareholder, or each Shareholder of any particular Series or Class,
to pay directly, in advance or arrears, for charges of the Trust's
administrator, custodian or transfer, shareholder servicing or similar agent, an
amount fixed from time to time by the Trustees, by setting off such charges due
from such Shareholder from declared but unpaid dividends owed such Shareholder
and/or by reducing the number of Shares in the account of such Shareholder by
that number of full and/or fractional Shares which represents the outstanding
amount of such charges due from such Shareholder.
OWNERSHIP OF ASSETS OF THE TRUST
Section 5. Title to all of the assets of each Series of Shares and of the
Trust shall at all times be considered as vested in the Trustees.
ADVISORY, MANAGEMENT AND DISTRIBUTION
Section 6. The Trustees may, at any time and from time to time, contract
for exclusive or nonexclusive advisory and/or management services with any
corporation, trust, limited liability company, association or other organization
(the "Manager"), every such contract to comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such contract may
provide for one or more sub-advisers who shall perform all or part of the
obligations of the Manager under such contract and may contain such other terms
interpretive of or in addition to said requirements and restrictions as the
Trustees may determine, including, without limitation, authority to determine
from time to time what investments shall be purchased, held, sold or exchanged
and what portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments. The Trustees may also, at any
time and from time to time, contract with the Manager or any other corporation,
trust, limited liability company, association or other organization, appointing
it the exclusive or nonexclusive distributor or principal underwriter for the
Shares, every such contract to comply with such requirements and restrictions as
may be set forth in the By-Laws; and any such contract may contain such other
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terms interpretive of or in addition to said requirements and restrictions as
the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner,
member, trustee, employee, manager, adviser,
subadviser, principal underwriter, distributor or
affiliate or agent of or for any corporation, trust,
association or other organization, or of or for any
parent or affiliate of any organization, with which an
advisory or management contract, or principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other agency contract may have
been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, limited liability company,
association or other organization with which an
advisory, subadvisory or management contract, principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other agency contract may have
been or may hereafter be made also has an advisory,
subadvisory or management contract, principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other agency contract with one
or more other corporations, trusts, associations or
other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
Section 1. The Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section 1 of this
Declaration of Trust, PROVIDED, HOWEVER, that no meeting of Shareholders is
required to be called for the purpose of electing Trustees unless and until such
time as less than a majority of the Trustees have been elected by the
Shareholders, (ii) with respect to any Manager or sub-adviser, to the extent
required by the 1940 Act, (iii) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article IX, Section 9 of
this Declaration of Trust, (iv) with respect to certain matters to the extent
and as provided in Article V, Section 6 of this Declaration of Trust, (v) with
respect to any termination of this Trust to the extent and as provided in
Article IX, Section 6 of this Declaration of Trust (for the avoidance of any
doubt, Shareholders shall have no separate right to
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vote with respect to the termination of the Trust if the Trustees exercise their
right to terminate the Trust pursuant to Article IX, Section 6 of this
Declaration of Trust, and Shareholders shall have no right to vote with respect
to the termination of a Series or Class of Shares), and (vi) with respect to
such additional matters relating to the Trust as may be required by law, this
Declaration of Trust, the By-Laws or any registration of the Trust with the
Securities and Exchange Commission (or any successor agency) or any state, or as
the Trustees may consider necessary or desirable. 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. On any
matter submitted to a vote of Shareholders, all Shares of the Trust then
entitled to vote shall, except as otherwise provided in the By-Laws, be voted in
the aggregate as a single class without regard to Series or Classes of Shares,
except that (1) when required by the 1940 Act or when the Trustees shall have
determined that the matter affects one or more Series or Classes of Shares
materially differently, Shares shall be voted by individual Series or Class and
(2) when the matter affects only the interests of one or more Series or Classes,
only Shareholders of such Series or Classes shall be entitled to vote thereon.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. 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. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action permitted or required of the Shareholders by law, this
Declaration of Trust or the By-Laws.
MEETINGS
Section 2. Meetings of the Shareholders may be called by the Trustees for
the purpose of electing Trustees as provided in Article IV, Section 1 of this
Declaration of Trust and for such other purposes as may be prescribed by law, by
this Declaration of Trust or by the By-Laws. Meetings of the Shareholders may
also be called by the Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Trustees to be necessary or
desirable. A meeting of Shareholders may be held at any place designated by the
Trustees. Notice of any meeting of Shareholders, stating the time and place of
the meeting, shall be given or caused to be given by the Trustees to each
Shareholder by mailing such notice, postage prepaid, at least seven days before
such meeting, at the Shareholder's address as it appears on the records of the
Trust, or by facsimile or other electronic transmission, at least seven days
before such meeting, to the telephone or facsimile number or e-mail or other
electronic address most recently furnished to the Trust (or its agent) by the
Shareholder. Whenever notice of a meeting is required to be given to a
Shareholder under this Declaration of Trust or the By-Laws, a written waiver
thereof, executed before or after the meeting by such Shareholder or his or her
attorney thereunto authorized and filed with the records of the meeting, shall
be deemed equivalent to such notice.
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QUORUM AND REQUIRED VOTE
Section 3. Except when a larger quorum is required by law, by the By-Laws
or by this Declaration of Trust, forty percent (40%) of the Shares entitled to
vote shall constitute a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust or the By-Laws requires that holders of any Series or Class
shall vote as a Series or Class, then forty percent (40%) of the aggregate
number of Shares of that Series or Class entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that Series or Class. Any
lesser number shall be sufficient for adjournments. Any adjourned session or
sessions may be held, within a reasonable time after the date set for the
original meeting, without the necessity of further notice. Except when a larger
vote is required by any provision of law or this Declaration of Trust or the
By-Laws, a majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, provided that where any provision of law or of
this Declaration of Trust or the By-Laws requires that the holders of any Series
or Class shall vote as a Series or Class, then a majority of the Shares of that
Series or Class voted on the matter (or a plurality with respect to the election
of a Trustee) shall decide that matter insofar as that Series or Class is
concerned.
ACTION BY WRITTEN CONSENT
Section 4. Any action taken by Shareholders may be taken without a meeting
if Shareholders holding a majority of the Shares entitled to vote on the matter
(or such larger proportion thereof as shall be required by any express provision
of law or this Declaration of Trust or the By-Laws) or, as applicable, holding a
majority (or such larger proportion as aforesaid) of the Shares of any Series or
Class entitled to vote separately on the matter consent to the action in writing
and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
ADDITIONAL PROVISIONS
Section 5. The By-Laws may include further provisions for Shareholders'
votes and meetings and related matters.
CONVERSION TO OPEN-END COMPANY
Section 6. Notwithstanding any other provisions in this Declaration of
Trust or the By-Laws, the conversion of the Trust or any Series of Shares from a
"closed-end company" to an "open-end company," as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act (as in effect on the
date of this Declaration of Trust), together with any necessary amendments to
this Declaration of Trust to permit such a conversion, shall require the
affirmative vote or consent of at least seventy-five percent (75%) of each
Series and Class of Shares outstanding and entitled to vote on the matter,
unless a majority of the Trustees approve such conversion and related actions.
In the event of such approval by the Trustees as referred to in the preceding
sentence, the 1940 Act shall govern whether and to what extent a vote or consent
of Shares shall be required to approve such conversion and related actions. Any
affirmative vote or consent required under this Section 6 shall be in addition
to the vote or
12
consent of the Shareholders otherwise required by law or by any agreement
between the Trust and any national securities exchange.
ARTICLE VI
DISTRIBUTIONS AND REPURCHASES
DISTRIBUTIONS
Section 1. The Trustees may each year, or more frequently if they so
determine in their sole discretion, distribute to the Shareholders of each
Series out of the assets of such Series such amounts as the Trustees may
determine. Any such distribution to the Shareholders of a particular Series
shall be made to said Shareholders pro rata in proportion to the number of
Shares of such Series held by each of them, except to the extent otherwise
required or permitted by the preferences and special or relative rights and
privileges of any Classes of Shares of that Series, and any distribution to the
Shareholders of a particular Class of Shares shall be made to such Shareholders
pro rata in proportion to the number of Shares of such Class held by each of
them. Such distributions shall be made in cash, Shares or other property, or a
combination thereof, as determined by the Trustees. Any such distribution paid
in Shares will be paid at the net asset value thereof as determined in
accordance with the By-Laws.
REPURCHASES
Section 2. The Trust may purchase or repurchase Shares. Such purchase or
repurchase of Shares may only be at a price not exceeding the net asset value of
such Shares in effect when the purchase or repurchase or any contract to
purchase or repurchase is made.
REDEMPTIONS AT THE OPTION OF THE TRUST
Section 3. The Trust shall have the right at its option and at any time to
redeem Shares of any Shareholder at the net asset value thereof as determined in
accordance with the By-Laws: (i) if at such time such Shareholder owns fewer
Shares than, or Shares having an aggregate net asset value of less than, an
amount determined from time to time by the Trustees; or (ii) to the extent that
such Shareholder owns Shares of a particular Series or Class of Shares equal to
or in excess of a percentage of the outstanding Shares of that Series or Class
determined from time to time by the Trustees; (iii) to the extent that such
Shareholder owns Shares of the Trust representing a percentage equal to or in
excess of a percentage of the aggregate number of outstanding Shares of the
Trust or the aggregate net asset value of the Trust determined from time to time
by the Trustees; or (iv) when required by applicable law or the Trust's
anti-money laundering program, if any, in effect from time to time.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
COMPENSATION
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent
13
the employment of any Trustee for advisory, management, legal, accounting,
investment banking, underwriting, brokerage or other services and payment for
the same by the Trust.
LIMITATION OF LIABILITY
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, Manager,
subadviser, or principal underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing herein
contained shall protect any Trustee against any liability to which he or she
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.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed or done by or on behalf of
the Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
TRUSTEES, OFFICERS, ETC.
Section 1. The By-Laws may include provisions whereby the Trust may
provide indemnity to 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
(each such Trustee, officer or person 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 being or having
been such a Covered Person. Any indemnity provided to Covered Persons by the
By-Laws may, if the By-Laws so provide, be in addition to any other indemnity to
which such persons may be entitled by law, contract or otherwise.
ARTICLE IX
MISCELLANEOUS
TRUSTEES, SHAREHOLDERS ETC. NOT PERSONALLY LIABLE; NOTICE
Section 1. All persons extending credit to, contracting with or having any
claim against the Trust or any Series or Class shall look only to the assets of
the Trust, or, to the extent that the liability relates to assets of a
particular Series or Class, only to the assets belonging to the relevant Series
or attributable to the relevant Class, for payment under such credit, contract
or claim, and neither the Shareholders nor the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future, as such, shall
be personally liable therefor. Nothing in
14
this Declaration of Trust shall protect any Trustee against any liability to
which such Trustee would otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made or
issued on behalf of the Trust by the Trustees, by any officer or officers or
otherwise shall give notice that this Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and shall recite that the same
was executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as officer or officers or otherwise and not individually and that
the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust or upon the assets belonging to the Series or attributable to the
Class for the benefit of which the Trustees have caused the note, bond,
contract, instrument, certificate or undertaking to be made or issued, and may
contain such further recital as he or she or they may deem appropriate, but the
omission of any such recital shall not operate to bind any Trustee or Trustees
or officer or officers or Shareholders or any other person individually.
SHAREHOLDERS
Section 2. In case any Shareholder or former Shareholder shall be held to
be personally liable solely by reason of his or her being or having been a
Shareholder of the Trust or of a particular Series or Class and not because of
his or her acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators or other legal
representatives or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets of the Series
(or attributable to the Class) of which he or she is a Shareholder or former
Shareholder to be held harmless from and indemnified against all loss and
expense arising from such liability.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
Section 3. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
for his or her own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any action taken or omitted in accordance with such
advice or for failing to follow such advice. The Trustees as such shall not be
required to give any bond as such nor any surety if a bond is required.
LIMITATION OF LIABILITY OF CERTAIN TRUSTEES
Section 4. For the sake of clarification and without limiting any
foregoing provision, the appointment, designation or identification of a Trustee
as the chairperson of the Trustees, the lead or assistant lead independent
Trustee, a member or chairperson of a committee of the Trustees, an expert on
any topic or in any area (including audit committee financial expert) or having
any other special appointment, designation or identification, shall not (a)
impose on that
15
person any obligation or liability that is greater than the obligations and
liabilities imposed on that person as a Trustee in the absence of the
appointment, designation or identification or (b) affect in any way such
Trustee's rights or entitlement to indemnification, and no Trustee who has
special skills or expertise, or is appointed, designated or identified as
aforesaid, shall (x) be held to a higher standard of care by virtue thereof or
(y) be limited with respect to any indemnification to which such Trustee would
otherwise be entitled.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
Section 5. No person dealing with the Trustees shall be bound to make any
inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
DURATION AND TERMINATION OF TRUST
Section 6. Unless terminated as provided herein, the Trust shall continue
without limitation of time. Subject to the voting powers of one or more Classes
or Series of Shares as set forth in this Declaration of Trust or the By-Laws,
the Trust may be terminated at any time (i) by vote or consent of Shareholders
holding at least seventy-five percent (75%) of the Shares entitled to vote or
(ii) by vote or consent of a majority of the Trustees upon written notice to the
Shareholders. Any Series or Class of Shares may be terminated at any time by
vote or consent of a majority of the Trustees upon written notice to the
Shareholders of such Series or Class. For the avoidance of any doubt and
notwithstanding anything to the contrary in this Declaration of Trust,
Shareholders shall have no separate right to vote with respect to the
termination of the Trust or a Series or Class of Shares if the Trustees exercise
their right to terminate the Trust or such Series or Class pursuant to this
Section 6. Upon termination of the Trust or of any one or more Series or Classes
of Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Series or Class as may be determined by the Trustees, the Trust shall
in accordance with such procedures as the Trustees consider appropriate reduce
the remaining assets to distributable form in cash or shares or other property,
or any combination thereof, and distribute the proceeds to the Shareholders of
the Series involved, ratably according to the number of Shares of such Series
held by the several Shareholders of such Series on the date of termination,
except to the extent otherwise required or permitted by the preferences and
special or relative rights and privileges of any Classes of Shares of that
Series, provided that any distribution to the Shareholders of a particular Class
of Shares shall be made to such Shareholders pro rata in proportion to the
number of Shares of such Class held by each of them. For these purposes,
"ratably" and "pro rata" shall refer to the proceeds themselves and shall not
prevent different Shareholders from receiving different forms of property.
FILING AND COPIES, REFERENCES, HEADINGS
Section 7. The original or a copy of this instrument and of each amendment
hereto shall be kept at the office of the Trust where it may be inspected by any
Shareholder. A copy of this instrument and of each amendment hereto shall be
filed by the Trust with the Secretary of the Commonwealth of Massachusetts and
with the Boston City Clerk, as well as any other governmental office where such
filing may from time to time be required. Anyone dealing with
16
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made and as to any matters in connection with
the Trust hereunder, and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument and all expressions like "herein,"
"hereof" and "hereunder" shall be deemed to refer to this instrument as amended
or affected by any such amendments. Headings are placed herein for convenience
of reference only and shall not be taken as a part hereof or control or affect
the meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
APPLICABLE LAW
Section 8. This Declaration of Trust is created under and is to be
governed by and construed and administered according to the laws of the
Commonwealth of Massachusetts. The Trust shall be of the type commonly called a
Massachusetts business trust and, without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised by such a trust.
AMENDMENTS
Section 9. Except to the extent that this Declaration of Trust, the
By-Laws or applicable law may require a higher vote or the separate vote of one
or more Classes or Series of Shares, this Declaration of Trust may be amended at
any time by an instrument in writing signed by a majority of the then Trustees
when authorized to do so by a vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment which in the determination of
the Trustees shall affect the holders of one or more Series or Classes of Shares
but not the holders of all outstanding Series and Classes shall be authorized by
vote of the Shareholders holding a majority of the Shares entitled to vote of
each Series and Class affected and no vote of Shareholders of a Series or Class
not affected shall be required. Amendments having the purpose of (i) changing
the name of the Trust, (ii) establishing, changing or eliminating the par value
of any Shares, (iii) supplying any omission, curing any ambiguity or curing,
correcting or supplementing any defective or inconsistent provision contained
herein, or (iv) adding, eliminating or modifying any provision based on any
applicable change since the date hereof in any requirement under (a) any federal
or state statute or any rule, regulation or interpretation thereof or thereunder
or (b) any rule, regulation, interpretation or guideline of any federal or state
agency or the staff thereof, including without limitation, requirements set
forth in the 1940 Act (and interpretations thereof), shall not require
authorization by vote of any Shareholders.
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IN WITNESS WHEREOF, the undersigned Trustees do set their hands hereunto as
of the day and year first above written.
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxx Xxxxxxx Xxxx
---------------------------------
Xxx Xxxxxxx Xxxx
/s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx Xxxx, III
---------------------------------
Xxxxxx Xxxx, III
/s/ Xxxxx X. Xxxxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Amended and Restated Declaration of Trust
UM INVESTMENT TRUST II
Address of Trustees: c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Trust Address: c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Registered Agent: BISYS Group, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000