Exhibit 99.2(b)
SECOND AMENDED AND RESTATED BY-LAWS
OF
UM INVESTMENT TRUST II
(ADOPTED AS OF JULY 19, 2004)
ARTICLE 1
AGREEMENT AND DECLARATION
OF TRUST AND PRINCIPAL OFFICE
1.1 AGREEMENT AND DECLARATION OF TRUST. These By-Laws shall be subject to the
Agreement and Declaration of Trust, as from time to time in effect (the
"Declaration of Trust"), of UM Investment Trust II (the "Trust"), the
Massachusetts business trust established by the Declaration of Trust.
Capitalized terms used but not defined in these By-Laws have the meanings
defined in the Declaration of Trust.
1.2 PRINCIPAL OFFICE OF THE TRUST. The principal office of the Trust shall be
located in New York, New York.
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 or the Treasurer or by two or more
Trustees, 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 by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting addressed to the Trustee at his or her
usual or last known business or residence address or to give notice to him or
her in person, by telephone or by facsimile or other electronic means of
transmission at least twenty-four hours before the meeting. Notice of a meeting
need not be given (a) to any Trustee if a written waiver of notice, executed by
him before or after the
meeting, is filed with the records of the meeting; or (b) to any Trustee who
attends the meeting without protesting prior thereto or at its commencement the
lack of notice to him or her. 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.
ARTICLE 3
OFFICERS
3.1 ENUMERATION; QUALIFICATION. The officers of the Trust shall be a
President, a Treasurer, a 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 may appoint from time to time in their
discretion. If a Chairman of the Board is elected, he or she shall be a Trustee
and may but need not be a shareholder; and any other officer may be but none
need be a Trustee or a shareholder. The Chairman of the Board of Trustees, if
one is elected, shall be considered an officer of the Trustees and not of the
Trust. Any two or more offices may be held by the same person.
3.2 ELECTION AND TENURE. The President, the Treasurer, 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 in the Declaration
of Trust set forth, 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 Chairman of the Board, the President or such other officer as is
designated by the Trustees and shall, subject to the control of the Trustees,
have general charge and supervision of the business of the Trust and, except as
the Trustees shall otherwise determine, preside at all meetings of the
shareholders and of the Trustees or delegate such duty to another party. If no
such designation is made, the President shall be the Chief Executive Officer.
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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.
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 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 such duties and powers as may
be designated from time to time by the Trustees or the President.
3.8 SECRETARY; ASSISTANT SECRETARY. The 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. At any meeting, the Secretary may delegate to an assistant Secretary or
to a temporary clerk chosen at such meeting such duties of recording the
proceedings thereof in the aforesaid books. Any Assistant Secretary shall have
such duties and powers as may be designated from time to time by the Trustees or
the President.
3.9 RESIGNATIONS AND REMOVALS. Any officer may resign at any time by written
instrument signed by him or her and delivered to 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
INDEMNIFICATION
4.1 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) (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 person may
be or may have been threatened, while in office or thereafter, by reason of any
alleged act or omission as a Covered Person 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 a decision on the
merits in any such action, suit or other proceeding
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(a) 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 or (b) to be 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. 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), may be paid from time to time by the Trust
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, THAT (a) such
Covered Person shall provide security for his or her undertaking, (b) the Trust
shall be insured against losses arising by reason of such Covered Person's
failure to fulfill his or her undertaking, or (c) a majority of the Trustees who
are disinterested persons and who are not Interested Persons of the Trust
(provided that a majority of such Trustees then in office act on the matter), or
independent legal counsel in a written opinion shall determine, based on a
review of readily available facts (but not a full trial-type inquiry), that
there is reason to believe such Covered Person ultimately will be entitled to
indemnification.
4.2 COMPROMISE PAYMENT. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without a decision on the
merits of such matter by a court, or by any other body before which the
proceeding was brought, that such Covered Person either (a) did not act in good
faith in the reasonable belief that such Covered Person's action was in the best
interests of the Trust or (b) 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 such Covered Person's office,
indemnification shall be provided if (x) approved as in the best interests of
the Trust, after notice that it involves such indemnification, by at least a
majority of the Trustees who are disinterested persons and are not Interested
Persons of the Trust (provided that a majority of such Trustees then in office
act on the matter), upon a determination, based upon a review of readily
available facts (but not a full trial-type inquiry) that such Covered Person
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 such Covered
Person's office, or (y) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (but
not 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 or its
Shareholders 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 4.2 shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this Section 4.2 as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction 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 or to
have been liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross
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negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
4.3 REBUTTABLE PRESUMPTION. For purposes of the determination or opinion
referred to in clause (c) of Section 1 of this Article 4 or clauses (x) or (y)
of Section 2 of this Article 4, a majority of the Trustees who are disinterested
persons and who are not Interested Persons of the Trust acting on the matter or
independent legal counsel, as the case may be, shall be entitled to rely upon 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.
4.4 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 4, the term "Covered
Person" shall include such person's heirs, executors and administrators, and a
"disinterested person" is a person against whom none of the actions, suits or
other proceedings in question nor any other 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, or the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
ARTICLE 5
REPORTS
5.1 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 from
time to time as may be required by the Trustees.
ARTICLE 6
FISCAL YEAR
6.1 GENERAL. Except as otherwise provided from time to time by the Trustees,
the fiscal year of the Trust shall end on December 31 in each year.
ARTICLE 7
SEAL
7.1 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. Unless otherwise required by the Trustees,
it shall not be necessary to place the seal 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.
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ARTICLE 8
EXECUTION OF PAPERS
8.1 GENERAL. Except as the Trustees, generally or in particular cases, may
have authorized 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 any of the President, any Vice-President,
the Treasurer or any of such other officers or agents as shall be designated for
that purpose by a vote of the Trustees.
ARTICLE 9
ISSUANCE OF SHARE CERTIFICATES
9.1 SHARE CERTIFICATES. In lieu of issuing certificates for shares, the
Trustees or the transfer agent may either issue receipts therefor or may keep
accounts upon 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 9.
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 facsimiles if the certificate is signed by a transfer agent,
or by a registrar, other than a Trustee, officer 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 certificate 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.
9.2 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.
9.3 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.
9.4 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.
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ARTICLE 10
PROVISIONS RELATING TO THE CONDUCT OF THE TRUST'S BUSINESS
10.1 DETERMINATION OF NET ASSET VALUE PER SHARE. Net asset value per share of
each Series or Class of Shares shall be determined at the times and in the
manner specified from time to time by the Trustees.
ARTICLE 11
SHAREHOLDERS' VOTING POWERS AND MEETINGS
11.1 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 other distribution, as the record date for determining
the shareholders having the right to notice of and to vote at such meeting and
any adjournment thereof or the right to receive such dividend or distribution,
and in such case only shareholders of record on such record date shall have such
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 part of such
period.
11.2 PROXIES. A shareholder may authorize another person to act as proxy for
the shareholder by: (i) signing a writing authorizing another person to act as
proxy, (ii) the shareholder's authorized agent signing the writing or causing
the shareholder's signature to be affixed to the writing by any reasonable
means, including facsimile signature, or (iii) transmitting, or authorizing the
transmission of, an authorization for the person to act as proxy to the person
authorized to act as proxy or any other person authorized to receive the proxy
authorization on behalf of the person authorized to act as proxy, including a
proxy solicitation firm or proxy support service organization. The authorization
may be transmitted by a telegram, cablegram, datagram, electronic mail, or any
other electronic or telephonic means. A copy, facsimile telecommunication, or
other reliable reproduction of the writing or transmission may be substituted
for the original writing or transmission for any purpose for which the original
writing or transmission could be used. No proxy shall be valid more than eleven
(11) months after its date unless it provides for a longer period.
ARTICLE 12
REPURCHASES OF SHARES BY THE TRUST
12.1 REPURCHASES OF SHARES. The Trust may purchase or repurchase Shares at the
discretion of the Board of Trustees of the Trust. Any such purchase or
repurchase made on or after the date of commencement of the Trust's investment
operations shall be as of the last business day of a calendar quarter pursuant
to written tenders by Shareholders, which written tenders shall be void unless
received by the Trust at least 60 and no more than 90 days prior to the purchase
or repurchase date. Purchases and repurchases of Shares may also be made at such
other times as may be determined from time to time by the Board of Trustees of
the Trust. No Shareholder
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shall be permitted to sell to the Trust on or after the date of commencement of
the Trust's investment operations, and the Trust shall not purchase or
repurchase on or after the date of commencement of the Trust's investment
operations, any Shares that as of the purchase or repurchase date have been
outstanding for less than one year; provided, however, that a Shareholder shall
be permitted to sell to the Trust, and the Trust may purchase or repurchase, any
Shares that are issued in connection with a reinvestment of the Trust's
dividends and/or capital gain distributions ("Dividend Reinvestment Shares") at
such time that the Shares with respect to which such dividends and/or capital
gain distributions were paid, and thereby such Dividend Reinvestment Shares were
issued, are permitted to be purchased or repurchased by the Trust. With regard
to any purchase or repurchase of Shares, the price at which Shares shall be
purchased or repurchased shall be based on the net asset value of the relevant
Series calculated as of the date designated by the Board of Trustees of the
Trust for purchase or repurchase of such Shares. In addition, with regard to any
purchase or repurchase of Shares on or after the date of commencement of the
Trust's investment operations, the Trust shall remit 95% of the initially
determined purchase or repurchase amount to the applicable Shareholder upon
purchase or repurchase and shall pay the purchase or repurchase balance after
the availability of more accurate valuations of the Shares, which in any event
shall not be until after the annual audit of the Trust by the Trust's
independent accountants for the period that includes the date for which the net
asset value calculation is made for such purchase or repurchase. Purchases and
repurchases of Shares may be made subject to such additional terms as may be
determined from time to time by the Board of Trustees of the Trust.
12.2 CONVERSION TO OPEN-END INVESTMENT COMPANY. In the event that the Trust
does not at least twice during any 18-month period beginning after September 30,
2005 (measured on a calendar quarter basis) purchase or repurchase, as of the
last business day of a calendar quarter, 100% of the Shares properly tendered
for purchase or repurchase on such business day, then, the Trust will initiate
the process of converting into an open-end management investment company. Any
such 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 which case the 1940 Act shall govern whether
and to what extent a vote or consent of Shares shall be required to approve such
conversion. Any affirmative vote or consent required by this Section 12.2 in
connection with any such conversion shall be in addition to any vote or consent
of the Shareholders that may otherwise be required by law.
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.
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