FORM OF
(PORTIONS OF AGREEMENT AND DECLARTION OF TRUST OF
XXXXXX VARIABLE TRUST
(FORMERLY KNOWN AS XXXXXX CAPITAL MANAGER TRUST)
RELATING TO SHAREHOLDERS' RIGHTS)
ARTICLE I
NAME AND DEFINITIONS
(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 of
Shares is authorized by the Trustees, the
equal proportionate transferable units into which each
series
of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
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 allocated to that series. The
beneficial interest in each series shall at all times be divided
into Shares, without par value, each of which shall represent an
equal proportionate interest in the series with each other Share
of the same series, none having priority or preference over
another. The number of Shares authorized shall be unlimited.
The Trustees may from time to time divide or combine the Shares
of any series into a greater or lesser number without thereby
changing the proportionate beneficial interests in the series.
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
as to the number of Shares of each series held from time to time
by each Shareholder.
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.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 5. Shares shall be deemed to be personal
property
giving only the rights provided in this instrument. Every
Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof
and to have become a party hereto. 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 only to the
rights of said decedent under this 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 herein 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.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
Section 1. The Shareholders shall have power to vote
only (i)
for the election of Trustees as provided in Article IV, Section
1, (ii) for the removal of Trustees as provided in Article IV,
Section 1, (iii) with respect to any Manager as provided in
Article IV, Section 6, (iv) with respect to any termination of
this Trust to the extent and as provided in Article IX, Section
4, (v) with respect to any amendment of this Declaration of Trust
to the extent and as provided in Article IX, Section 7, (vi) to
the same extent as the stockholders of a Massachusetts business
corporation as to whether or not a court action, proceeding or
claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders,
and (vii) with respect to such additional matters relating to the
Trust as may be required by this Declaration of Trust, the Bylaws
or any registration of the Trust with the 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. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to vote shall
be voted by individual series, except (1) when required by the
1940 Act, Shares shall be voted in the aggregate and not by
individual series; and (2) when the Trustees have determined that
the matter affects only the interests of one or more series, then
only Shareholders of such series 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. 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 required by law, this
Declaration of Trust or Bylaws to be taken by Shareholders.
VOTING POWER AND MEETINGS
Section 2. Meetings of Shareholders of any or all
series
may be called by the Trustees from time to time for the purpose
of taking action upon any matter requiring the vote or authority
of the Shareholders of such series as herein provided or upon any
other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by mailing such notice at
least seven days before such meeting, postage prepaid, stating
the time, place and purpose of the meeting, to each Shareholder
entitled to vote at such meeting at the Shareholder's address as
it appears on the records of the Trust. If the Trustees shall
fail to call or give notice of any meeting of Shareholders for a
period of 30 days after written application by Shareholders
holding at least 10% of the then outstanding Shares of each
series entitled to vote at such meeting or of all series if all
series are entitled to vote at such meeting requesting a meeting
to be called for a purpose requiring action by the Shareholders
as provided herein or in the Bylaws, then Shareholders holding at
least 10% of the then outstanding Shares of each series entitled
to vote at such meeting or of all series if all series are
entitled to vote at such meeting may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees.
Notice of a meeting need not be given to any Shareholder 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
Shareholder who attends the meeting without protesting prior
thereto or at its commencement the lack of notice to him or her.
QUORUM AND REQUIRED VOTE
Section 3. Thirty percent of Shares entitled to vote
shall
be a quorum for the transaction of business at a Shareholders'
meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that holders of any
series shall vote as a series, then thirty percent of the
aggregate number of Shares of that series entitled to vote shall
be necessary to constitute a quorum for the transaction of
business by that series. 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 this Declaration of
Trust or the Bylaws, 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
permits or requires that the holders of any series shall vote as
a series, then a majority of the Shares of that series voted on
the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that series is
concerned.
ACTION BY WRITTEN CONSENT
Section 4. Any action taken by Shareholders may be
taken
without a meeting if a majority of Shareholders entitled to vote
on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or
the Bylaws) 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 Bylaws may include further provisions of
Shareholders' votes and meetings and related matters.
ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
DISTRIBUTIONS
Section 1. The Trustees may each year, or more
frequently
if they so determine, 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. Such distributions shall be
made in cash or Shares 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 Bylaws.
Notwithstanding the provisions of the foregoing
paragraph,
with respect to any money market series seeking to maintain a
constant net asset value per share, the Trustees shall each year,
or more frequently if they so determine in their sole discretion,
distribute to the Shareholders of such series an amount
approximately equal to the Net Income of such series, and may
from time to time distribute such additional amounts as they may
authorize to the Shareholders of such series. Such Net Income
shall consist of: (i) all interest income (including both
original issue and market discount earned on discount paper
accrued ratably to the date of maturity) accrued on portfolio
investments of such series, (ii) plus or minus realized or
unrealized gains and losses on portfolio investments determined
by valuing the portfolio investments of such series in a manner
consistent with the requirements of the actual and accrued
expenses and liabilities of such series determined in accordance
with good accounting practices. Such Net Income shall be
determined by the Trustees or as they may authorize on each
business day at the times and in the manner provided in the
Bylaws, and all such Net Income, which is a positive amount,
since the last determination of Net Income, shall be declared as
a dividend on Shares of such series. Determinations of Net
Income of any such money market series made by the Trustees, or
as they may authorize, in good faith, shall be binding on all
parties concerned. If, for any reason, the Net Income of such
series determined at any time is a negative amount, each
Shareholder's pro rata share of such negative amount shall
constitute a liability of such Shareholder to the Trust which
shall be paid at such times and in such manner as the Trustees
may from time to time determine out of the accrued dividend
account of such Shareholder, by reducing the number of Shares of
such series in the account of such Shareholder or otherwise. As
a result of such determinations and declarations as a dividend of
the Net Income of such series, the net asset value per Share of
such series is intended to remain at a constant amount
immediately after each such determination and declaration;
subject, however, to the power of the Trustees as provided in
Section I of Article III to divide or combine the Shares of such
series into a greater or lesser number.
Notwithstanding the provisions of the foregoing
paragraph
for calculation and distribution of Net Income, the Trustees may,
from time to time and for so long as they may deem appropriate,
for purposes of calculating and distributing income of any such
money market series to the Shareholders of such series divide
Shares of such series into as many classes as they deem
appropriate and pay distributions of differing amounts to each
class of Shares (provided all Shares of the same class receive
equal distributions), provided, that the division of Shares of
any such money market series into classes and the payment of
differing distributions to such classes shall be made in a manner
consistent with the requirements of the 1940 Act, the rules and
regulations thereunder and exemptions therefrom, and provided
further, that except as otherwise specifically authorized by the
Trustees pursuant to this paragraph, the Trustees shall continue
to calculate and distribute Net Income of such series in the
manner provided in the preceding paragraph.
REDEMPTIONS AND REPURCHASES
Section 2. The Trust shall purchase such Shares as are
offered by any Shareholder for redemption, upon the presentation
of any certificate for the Shares to be purchased, a proper
instrument of transfer and a request directed to the Trust or a
person designated by the Trust that the Trust purchase such
Shares, or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof, as next
determined in accordance with the Bylaws. Payment for said
Shares shall be made by the Trust to the Shareholder within seven
days after the date on which the request is made. The obligation
set forth in this Section 2 is subject to the provision that in
the event that any time the New York Stock Exchange is closed for
other than customary weekends or holidays, or, if permitted by
rules of the Commission, during periods when trading on the
Exchange is restricted or during any emergency which makes it
impractical for the Trust to dispose of its investments or to
determine fairly the value of its net assets, or during any other
period permitted by order of the Commission for the protection of
investors, such obligation may be suspended or postponed by the
Trustees. The Trust may also purchase or repurchase Shares 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 Bylaws:
(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 of Shares equal to or in excess of a percentage of the
outstanding Shares of that series determined from time to time by
the Trustees; or (iii) to the extent that such Shareholder owns
Shares of the Trust representing a percentage equal to or in
excess of such 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.
ARTICLE VIII
INDEMNIFICATION
SHAREHOLDERS
Section 4. 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 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 to be held harmless from and
indemnified against all loss and expense arising from such
liability, but only out of the assets of the particular series of
Shares of which he or she is or was a Shareholder.
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 a particular series
of Shares shall look only to the assets of the Trust or the
assets of that particular series of Shares 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, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any
Trustee against any liability to which such Trustee would
otherwise be subject by reason of wilful 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 by the Trustees or by any officer or
officers 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 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, and may contain such further recital as he or she or
they may deem appropriate, but the omission thereof shall not
operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders individually.
