STEINROE VARIABLE INVESTMENT TRUST
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
i
TABLE OF CONTENTS
First: Name................................................................1
Second: Purposes...........................................................1
Third: Address and Resident Agent..........................................3
Fourth: Shares.............................................................3
A. Definition.........................................................3
B. Division of Beneficial Interest....................................3
C. Ownership of Shares................................................4
D. Status of Shares and Limitations of Personal Liability.............4
Fifth: No Preemptive Rights................................................4
Sixth: Issue, Redemption, and Repurchase of Shares.........................4
Section I. Issue of the Trust's Shares................................4
1.01 General......................................................4
1.02 Price........................................................4
1.03 Fractional Shares............................................5
1.04 Assets of a Series...........................................5
Section II. Redemption and Repurchase of the Trust's Shares......5
2.01 Redemption of Shares.........................................5
2.02 Price........................................................5
2.03 Payment......................................................6
2.04 Effect of Suspension of Determination of Net Asset
Value....................................................6
2.05 Repurchase by Agreement......................................6
2.06 Redemption of Shareholder's Interest.........................6
2.07 Additional Provisions Relating to Redemptions and
Repurchases..............................................7
Section III. Net Asset Value of Shares................................7
3.01 By Whom Determined...........................................7
3.02 When Determined..............................................7
3.03 Suspension of Determination of Net Asset Value...............7
3.04 Computation of Per Share Net Asset Value.....................8
3.05 Miscellaneous................................................8
Section IV. Compliance with Investment Company Act of 1940............9
Seventh: Board of Trustees.................................................9
A. Election...........................................................9
B. Effect of Death, Resignation, Etc. of a Trustee....................9
X. Xxxxxx.............................................................9
ii
D. Payment of Expenses by Trust.......................................12
E. Ownership of Assets of the Trust...................................12
F. Advisory, Management and Distribution..............................12
Eighth: Liability..........................................................13
A. Trustees, Shareholders, Etc. Not Personally Liable; Notice.........13
B. Trustee's Good Faith Action; Expert Advice; No Bond or Surety......14
C. Liability of Third Persons Dealing with Trustees...................14
Ninth: Determination of Net Profits, Etc.; Dividends.......................14
Tenth: Indemnification.....................................................15
A. Indemnification Generally..........................................15
B. Determination of Eligibility.......................................15
C. Indemnification Not Exclusive......................................16
D. Shareholders.......................................................16
E. Contractual Rights ................................................16
F. Protection of Rights ..............................................17
Eleventh: Reservation of Right to Amend....................................17
A. By Board of Trustees...............................................17
B. By Shareholders....................................................17
Twelfth: Shareholders' Voting Powers and Meetings..........................17
A. Shareholders' Voting Powers........................................17
B. Meetings...........................................................18
C. Quorum and Required Vote...........................................18
D. Place of Meeting...................................................19
E. Notice of Meetings; Adjournment....................................19
F. Share Ledger.......................................................19
G. Action by Written Consent...........................................19
Thirteenth: Use of Name....................................................19
Fourteenth: Miscellaneous..................................................20
A. Duration and Termination of Trust..................................20
B. Filing of Copies; References; Headings.............................20
C. Applicable Law.....................................................21
D. Severability ......................................................21
iii
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
THIS RESTATED AGREEMENT AND DECLARATION OF TRUST (the "Declaration of
Trust") made at Boston, Massachusetts this 22nd of May, 2000 by the Trustees
hereunder and the holders of shares of beneficial interest issued hereunder and
to be issued hereunder as hereinafter provided:
WITNESSETH that
WHEREAS, this Trust has been formed as a voluntary association with
transferable shares under the laws of the Commonwealth of Massachusetts 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 voluntary association in the form of a
Massachusetts business trust in accordance with the provisions hereinafter set
forth.
NOW THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets that 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 pro rata benefit of the holders from time
to time of shares of this Trust as hereinafter set forth.
FIRST: NAME.
The name of this Trust (which is hereafter called the "Trust") is SteinRoe
Variable Investment Trust.
SECOND: PURPOSES.
The purposes for which the Trust is formed are:
1. To engage in the business of a management investment company;
2. To invest and reinvest in, to buy or otherwise acquire, to hold, for
investment or otherwise, to sell or otherwise dispose of, to lend or to
pledge, to trade in or deal in, securities or interests of all kinds,
or obligations of all kinds, or rights, warrants, or contracts, and to
acquire such securities, interests, or obligations, of or guaranteed by
any private or public company, corporation, association, general or
limited partnership, trust or other enterprise or organization, foreign
or domestic, or of or guaranteed by any national, state or local
government, foreign or domestic, or their agencies, instrumentalities
or subdivisions, including but not limited to bonds, debentures,
preferred stocks, common stocks, convertible securities, bills, time
notes and all other evidences of indebtedness; negotiable or
non-negotiable instruments; options; futures contracts and options on
futures contracts; government securities; and money market instruments,
including but not limited to bank certificates of deposit, finance
paper,
1
commercial paper, bankers' acceptances, and all kinds of repurchase
agreements, of any corporation, company, trust, association, firm or
other business organization, however established, and of any county,
state, municipality or other political subdivision, or of any other
governmental or quasi-governmental agency or instrumentality;
3. To invest and reinvest in, to buy or otherwise acquire, to hold, for
investment or otherwise, to sell or otherwise dispose of, foreign
currencies, funds, and exchange, and to make deposits in banks, savings
banks, trust companies, and savings and loan associations, foreign or
domestic;
4. To exercise all rights, powers, and privileges as owner of any
securities, property, or assets which might be exercised by any
individual owning such securities, property, or assets in his own
right;
5. To acquire (by purchase, lease, or otherwise) and to hold, use,
maintain, develop, and dispose of (by sale or otherwise) any property,
real or personal, and any interest therein;
6. To aid by further investment any corporation, company, trust,
association, or firm, any obligation of or interest in which is held by
the Trust or in the affairs of which the Trust has any direct or
indirect interest; to do all acts and things designed to protect,
preserve, improve, or enhance the value of such obligation or interest;
to guarantee or become surety on any or all of the contracts, stocks,
bonds, notes, debentures, and other obligations of any such
corporation, company, trust, association, or firm; and
7. In general, to carry on any other business in connection with or
incidental to any of the foregoing objects and purposes, and to engage
in any and all lawful business except as may be prohibited to be
engaged in by a business trust organized under the laws of the
Commonwealth of Massachusetts as in force from time to time, to do
everything necessary, suitable, or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of any power
hereinbefore set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes, objects,
or powers.
The Trust shall have the power to conduct and carry on its business, or
any part thereof, and to have one or more offices, and to exercise any or all of
its trust powers and rights, in the Commonwealth of Massachusetts, in any other
states, territories, districts, colonies, and dependencies of the United States,
and in any or all foreign countries.
The foregoing clauses shall be construed both as objects and powers,
and the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trust.
2
THIRD: ADDRESS AND RESIDENT AGENT.
The post office address of the principal office of the Trust in the
Commonwealth of Massachusetts is:
c/o Liberty Funds Group LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or such other office as the Board of Trustees may from time to time designate.
The name and post office address of the resident agent of the Trust in
the Commonwealth of Massachusetts is:
Xxxxx X. Xxxxxx, Esq.
c/o Liberty Funds Group LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or such other person as the Board of Trustees may from time to time designate.
FOURTH: SHARES.
A. DEFINITION. "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 units into which each series of shares
shall be divided from time to time or, if more than one class of shares of any
series is authorized by the Trustees, the equal proportionate units into which
each class of such series of shares shall be divided from time to time.
B. DIVISION OF BENEFICIAL INTEREST. The shares of the Trust shall be
issued in one or more series as the Board of Trustees may, without shareholder
approval, authorize. The Trustees may, without shareholder approval, divide the
shares of any series into two or more classes, shares of each such class having
such preferences or special or relative rights or privileges (including
conversion rights, if any) as the Trustees may determine and as are not
inconsistent with any provision of this Declaration of Trust. Each series shall
be preferred over all other series with respect to the assets allocated to that
series. The beneficial interest in each series shall at all times be divided
into shares, with or without par value as the Board of Trustees may determine,
each of which shall, except as the Trustees may otherwise authorize in the case
of any series that is divided into two or more classes, 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, and the shares so authorized may be represented in part by
fractional shares. The Board of 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 interests in the series or class.
3
C. OWNERSHIP OF SHARES. The ownership of shares shall be recorded on
the books of the Trust or its transfer or similar agent. No certificates
certifying the ownership of shares shall be issued except as the Board of
Trustees may otherwise determine from time to time. The Board of Trustees may
make such rules as it considers 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 of the Trust, 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.
D. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. 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
deemed to have expressly assented to and agreed to be bound by 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 such deceased shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Board of 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 to
be partners. Neither the Trust nor the Board of 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.
FIFTH: NO PREEMPTIVE RIGHTS.
Shareholders shall have no preemptive or other right to receive,
purchase, or subscribe for any additional shares or other securities issued by
the Trust.
SIXTH: ISSUE, REDEMPTION, AND REPURCHASE OF SHARES.
SECTION I. ISSUE OF THE TRUST'S SHARES
1.01. GENERAL. The Board of Trustees may from time to time issue,
reissue, sell or cause to be issued and sold any of the Trust's shares in one or
more series and in one or more classes of each such series as the Board of
Trustees may, without shareholder approval, authorize, including any shares
redeemed or repurchased by the Trust, for a consideration determined in
accordance with Section 1.02 hereof; except that only shares previously
contracted to be sold may be issued during any period when the determination of
net asset value is suspended pursuant to the provisions of Section III hereof.
1.02. PRICE. No shares of a series or class shall be issued or sold by
the Trust, except as a share dividend distributed to shareholders of such series
or class, for less than an amount which would result in proceeds to the Trust,
in connection with such transaction, of at least the net asset value per share
of such series or class, determined as set forth in Section III hereof. The net
asset value per share applicable to any such transaction shall be the net asset
value per share of such series or class next determined after receipt of an
unconditional order for purchase of shares of
4
such series or class; except that, subject to applicable rules and regulations,
if any, of the Securities and Exchange Commission or any other governmental body
having similar jurisdiction over the Trust (the "SEC"), the Board of Trustees
may prescribe that requests for purchase received prior to a time of day (the
"cutoff time") preceding the time of day prescribed for determination of net
asset value per share of such series or class shall be transacted at the net
asset value per share next determined and that requests for purchase received
after the cutoff time and before the time for determination of the next net
asset value per share shall be transacted at the net asset value per share next
determined after the next net asset value per share of such series or class. The
criteria for determining what constitutes an unconditional order for purchase of
shares of a series or class and the receipt of such an order shall be prescribed
by the Board of Trustees. All shares, when issued in accordance with the terms
of this Section I, shall be fully paid and nonassessable.
1.03. FRACTIONAL SHARES. The Trust may issue and sell or cause to be
issued and sold fractions of shares of a series or class having pro rata all the
rights of full shares of such series or class, including, without limitation,
the right to vote and to receive dividends.
1.04. ASSETS OF A SERIES. All consideration received by the Trust for
the issue or sale of shares of each series authorized by the Board of Trustees,
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 of Trust assets allocated to such series, and shall be so
recorded upon the books of account of the Trust and are herein referred to as
"assets of" such series.
SECTION II. REDEMPTION AND REPURCHASE OF THE TRUST'S SHARES
2.01. REDEMPTION OF SHARES. Any shares of any series or class of the
Trust may be redeemed at the option of the holder of such shares and, to the
extent permitted in Section 2.06 hereof, at the option of the Trust, at the
redemption price for such shares, determined in the manner set out in this
Declaration of Trust or in any amendment hereto. Unless otherwise provided by
resolution of the Board of Trustees, shares redeemed shall be cancelled.
Redeemed shares which have not been cancelled may be resold by the Trust. The
Trust shall redeem shares subject to the conditions and at the price determined
as hereinafter set forth.
2.02. PRICE. Shares shall be redeemed at the net asset value per share
of the appropriate series or attributable to the particular class, determined as
set forth in Section III hereof. The net asset value per share of such series or
class applicable to any such redemption of shares shall be the net asset value
per share next determined after receipt of a request for redemption of such
shares in proper form, except that, subject to applicable rules and regulations,
if any, of the SEC, the Board of Trustees may prescribe that requests for
redemption received prior to the cutoff time preceding the time of day
prescribed for determination of net asset value per share of such series or
class shall be transacted at the net asset value per share next determined and
that requests for redemption after the cutoff time and before the time for
determination of the next net asset value per share shall be transacted at the
net asset value per share next determined after the next net asset value per
share. The criteria for determining what constitutes a proper request for
5
redemption of shares of a series or class and the receipt of such request for
redemption shall be prescribed by the Board of Trustees.
2.03. PAYMENT. Subject to the provisions of Section 2.04 hereof,
payment for shares of a series or class shall be made in cash to, or upon the
direction of, the shareholder of record within seven calendar days after the
date of receipt of (a) a written, unconditional and irrevocable instruction of
the shareholder to redeem, in a form acceptable to the Trust or its designated
agent, together with any certificates which may have been issued therefor,
endorsed or accompanied by proper instrument of transfer, and such other
documents as the Trust or its designated agent may require or (b) such other
direction or authorization of redemption by the shareholder as the Board of
Trustees shall authorize. Subject to applicable rules and regulations, if any,
of the SEC, the Trust may pay the redemption price for such shares of a series
or class in whole or in part by a distribution in kind of securities from the
portfolio of the Trust allocated to such series or class, in lieu of money,
valuing such securities at their value employed for determining the net asset
value governing such redemption price, and selecting the securities in such
manner as the Board of Trustees may determine to be fair and equitable.
2.04. EFFECT OF SUSPENSION OF DETERMINATION OF NET ASSET VALUE. If,
pursuant to Section 3.03 hereof, the Board of Trustees shall declare a
suspension of the determination of net asset value of a particular series or
class, (a) the rights of shareholders (including those who shall have requested
redemption pursuant to Sections 2.01, 2.02, and 2.03 hereof but for whom the
redemption price shall not yet have been determined) to have shares redeemed and
paid for by the Trust, and (b) the obligation of the Trust to pay for shares
previously redeemed, shall be suspended until the termination of such
suspension. Any record holder of shares not previously redeemed who shall have
his redemption right so suspended may, during the period of such suspension, by
appropriate written notice of revocation at the office or agency where request
for redemption was made, revoke any request or instruction for redemption not
honored and withdraw any certificates tendered for redemption. The redemption
price of shares for which redemption requests have been made and not revoked
shall be the net asset value of such shares next determined as set forth in
Section III hereof after the termination of such suspension, and payment shall
be made within seven days after the date upon which the requirements of Section
2.03 were met plus the period during which the determination of net asset value
was suspended.
2.05. REPURCHASE BY AGREEMENT. The Trust may repurchase shares of the
Trust directly, or through a principal underwriter, if any, or another agent
designated for the purpose, by agreement with the owner thereof at a price not
exceeding the net asset value per share of the appropriate series or class
determined as of the time when the purchase or contract of purchase is made or
the net asset value as of any time which may be later determined pursuant to
Section III hereof, provided payment is not made for the shares prior to the
time as of which such net asset value is determined. Repurchased shares may be
resold by the Trust.
2.06. REDEMPTION OF SHAREHOLDER'S INTEREST. 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 determined in accordance with Section III hereof: (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 Board of 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
6
outstanding shares of that series or class determined from time to time by the
Board of 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 Board of Trustees,
and subject to the Trust's giving general notice to all shareholders of its
intention to avail itself of such right, either by publication in the Trust's
prospectus, if any, or by such other means as the Board of Trustees may
determine. Subject to the same terms and conditions, the Trust shall also have
the right to redeem shares of the Trust, or a particular series or class, owned
by any shareholder if, in the opinion of the Board of Trustees, ownership of
shares of the Trust or series or class, respectively, has or may become
concentrated to an extent which could cause the Trust to become a personal
holding company within the meaning of the Internal Revenue Code.
2.07 ADDITIONAL PROVISIONS RELATING TO REDEMPTIONS AND REPURCHASES. The
completion of redemption of shares shall constitute a full discharge of the
Trust and the Trustees with respect to such shares, and the Trustees may require
that any certificate or certificates issued by the Trust to evidence the
ownership of such shares shall be surrendered to the Trustees for cancellation
or notation.
SECTION III. NET ASSET VALUE OF SHARES
3.01. BY WHOM DETERMINED. Subject to the provisions of Section 3.04 of
this Article SIXTH, the Board of Trustees shall have the power and duty to
determine from time to time the net asset value per share of the outstanding
shares of each series and class authorized by the Board of Trustees and any such
determination shall be binding on all parties.
3.02. WHEN DETERMINED. The net asset value of a series or class shall
be determined at such times as the Board of Trustees, subject to applicable
rules and regulations, if any, of the SEC, shall prescribe, provided that such
net asset value shall be determined at least once each week. In the absence of a
resolution of the Board of Trustees, the net asset value of a series or class
shall be determined as of the close of trading on the New York Stock Exchange on
each business day.
3.03. SUSPENSION OF DETERMINATION OF NET ASSET VALUE. The Board of
Trustees may declare a suspension of the determination of net asset value of a
series or class (a) for any period during which trading on the New York Stock
Exchange is restricted, as determined by the SEC, or that Exchange is closed
(other than customary weekend and holiday closings), (b) for any period during
which an emergency exists as a result of which disposal of the investments held
by that series or determination of net asset value of that series is not
reasonably practicable, or (c) for such period as the SEC by order may permit.
Such suspension shall take effect at such time as the Board of Trustees shall
specify and thereafter there shall be no determination of net asset value until
the Board of Trustees shall declare the suspension terminated, except that the
suspension shall terminate in any event on the first day on which (1) the
condition giving rise to the suspension shall have ceased to exist and (2) no
other condition exists under which suspension is authorized under this Section
3.03. Each declaration by the Board of Trustees pursuant to this Section 3.03
shall be consistent with such official rules and regulations, if any, relating
to the subject matter thereof as shall have been promulgated by the SEC. To the
extent not inconsistent with such official rules and regulations, the
determination of the Board of Trustees shall be conclusive.
7
3.04. COMPUTATION OF PER SHARE NET ASSET VALUE.
a. Net Asset Value Per Share. The net asset value of each share of a
series or class as of any particular time shall be the quotient obtained by
dividing the value of the net assets of the Trust allocated to such series or
class by the total number of shares of such series or class outstanding, rounded
to such extent as the Board of Trustees shall determine from time to time.
b. Value of Trust's Net Assets. The value of the net assets of the
Trust allocated to any series or class as of any particular time shall be the
value of the assets so allocated less the liabilities of the Trust so allocated,
determined as follows:
(1) each security for which market quotations are readily available shall be
valued at current market value determined by methods specified by the Board
of Trustees;
(2) each other security, including any security within (1) for which the
specified price does not appear to represent a dependable quotation for
such security as of the time of valuation, shall be valued at a fair value
as determined in good faith by the Board of Trustees;
(3) any cash on hand shall be valued at the face amount thereof;
(4) any cash on deposit, accounts receivable, and cash dividends and interest
declared or accrued and not yet received, any prepaid expenses, and any
other current asset shall be valued at the face amount thereof, unless the
Board of Trustees shall determine that any such item is not worth its face
amount, in which case such asset shall be valued at a fair value determined
in good faith by the Board of Trustees; and
(5) any other asset shall be valued at a fair value determined in good faith by
the Board of Trustees.
Notwithstanding the foregoing, short-term debt obligations, commercial
paper and repurchase agreements may be, but need not be, valued on the basis of
quoted yields for securities of comparable maturity, quality and type, or on the
basis of amortized cost. The Board of Trustees may appoint persons to assist it
in the determination of the value of assets, liabilities and net asset value per
share of any series or class and to make the actual calculations pursuant to the
direction of the Board of Trustees.
3.05. MISCELLANEOUS. For the purposes of this Section III:
a. Shares of any series issued shall be deemed to be outstanding
commencing immediately after the time for determination of net asset value per
share for purposes of determining their sale price, pursuant to Section 1.02
hereof, and the net sale price thereof shall thereupon be deemed an asset of
that series.
b. Shares of any series for which a request for redemption has been
made in proper form or which are being repurchased by the Trust shall be deemed
to be outstanding up to and including the time as of which the redemption or
repurchase price for such shares is determined.
8
After such time, they shall be deemed to be no longer outstanding and the price
until paid shall thereupon be deemed to be a liability of that series.
c. Funds on deposit and contractual obligations payable to the Trust in
foreign currency and liabilities and contractual obligations payable by the
Trust in foreign currency shall be taken at the current applicable rate of
exchange as nearly as practicable at the time as of which the net asset value is
computed for the series or class to which such items relate.
SECTION IV. COMPLIANCE WITH INVESTMENT COMPANY ACT OF 1940
Notwithstanding any of the foregoing provisions of this Article SIXTH,
the Board of Trustees may prescribe such other bases and times for determining
the per share net asset value of any series or class of the Trust as it shall
deem necessary or desirable to enable the Trust to comply with any provision of
the Investment Company Act of 1940, or any rule or regulation thereunder, all as
now in effect or hereafter amended or added (the "1940 Act"), including any rule
or regulation adopted by any securities association registered under the
Securities Exchange Act of 1934.
SEVENTH: BOARD OF TRUSTEES.
A. ELECTION. The Trustees shall be Xxxx X. Xxxxx, Xxxxxxx X. Xxxx,
Xxxxxxx Xxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxxxx Xxxxx and
Xxxxxx X. Xxxxxxxx. Any vacancy occurring in the Board of Trustees may be filled
by the Trustees, unless immediately after filling any such vacancy, less than
two-thirds of the Trustees then holding office would have been elected to such
office by the shareholders. The Board of Trustees shall call a meeting of
shareholders for the purpose of electing Trustees whenever less than a majority
of the Trustees have been elected by shareholders. Each Trustee elected by the
shareholders or by the Board of Trustees shall serve until the next meeting of
shareholders, if any, called for the purposes of reelecting such Trustee or
electing a successor to such Trustee and until the election and qualification of
his or her successor, or until he or she sooner dies, resigns or is removed. A
Trustee may be removed with or without cause (a) at any meeting called for such
purpose by a vote of two-thirds of the outstanding shares, (b) by the holders of
two-thirds of the outstanding shares by declaration in writing filed with the
Custodian of the securities of the Trust, or (c) by vote of a majority of the
Trustees then in office.
B. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. 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.
X. XXXXXX. Subject to the provisions of this Declaration of Trust, the
business of the Trust shall be managed by the Board of Trustees, and they shall
have all powers necessary or convenient to carry out that responsibility.
Without limiting the foregoing, the Board of Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business 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
in their number, including vacancies resulting from increases in their number,
and may elect and remove such officers and appoint and terminate such agents as
they consider appropriate; they may appoint from their own
9
number, and terminate, any one or more committees consisting of two or more
Trustees, including an executive committee which may, when the Board of Trustees
is not in session, exercise some or all of the power and authority of the Board
of Trustees as the Trustees may determine; they may appoint an advisory board,
the members of which shall not be Trustees and need not be shareholders; 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, retain a
transfer agent or a shareholder services 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 officers of the Trust, to any committee of the Board
of Trustees and to any agent or employee of the Trust or to any such custodian
or underwriter.
Without limiting the foregoing, the Board of Trustees shall have power
and authority:
(1) To invest and reinvest in securities, options, futures contracts,
options on futures contracts and other property, and to hold cash
uninvested;
(2) To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
(3) 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
Board of Trustees shall deem proper, granting to such person or persons
such power and discretion with relation to securities or property as
the Board of Trustees shall deem proper;
(4) To exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities or other assets;
(5) 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 depository or a nominee or nominees or otherwise;
(6) Subject to the provisions of Article SIXTH, Section 1.04, to allocate
assets, liabilities 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 or attribute 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;
(7) 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,
10
and to pay calls or subscriptions with respect to any security held in
the Trust;
(8) 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 Board of 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 Board of
Trustees shall deem proper;
(9) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust on any matter in controversy, including but not
limited to claims for taxes;
(10) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(11) To borrow funds, securities or other assets;
(12) To endorse or guarantee the payment of any notes or other obligations
of any person; to make contracts of guarantee 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
of such obligations or obligations incurred pursuant to Clause 11
hereof;
(13) To purchase and pay for, entirely out of Trust property, such insurance
as they may deem necessary or appropriate for the conduct of the
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 the
shareholders, Trustees, officers, employees, agents, investment
advisers or managers, principal underwriters, or independent
contractors of the Trust individually against all claims and
liabilities of every nature arising by reason of holding, being 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 or
manager, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify
such person against such liability;
(14) To pay pensions for faithful service, as deemed appropriate by the
Board of 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;
(15) To pay remuneration to each Trustee for his services, including
reimbursement of expenses incurred, as shall be fixed from time to time
by resolution of the Board of Trustees. Nothing herein contained shall
be construed to preclude any Trustee from serving the Trust in any
other capacity and receiving compensation therefor; and
11
(16) To do all acts and things appropriate in the furtherance of the
foregoing and in furtherance of the purposes of the Trust.
The Board of Trustees shall not in any way be bound or limited by any
present or future law or custom in regard to investments by Trustees. Except as
otherwise provided herein or from time to time in the By-Laws, any action to be
taken by the Board of Trustees may be taken by a majority of the Trustees
present at a meeting of the Board of Trustees (a quorum being present), within
or without Massachusetts, including any meeting held by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting, or
by written consents of a majority of the Trustees then in office.
D. PAYMENT OF EXPENSES BY TRUST. The Board of Trustees is 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 appropriate, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser or manager,
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 Board of Trustees may deem necessary or proper to
incur, provided, however, that all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with a particular series or class
of shares, as determined by the Board of Trustees, shall be payable solely out
of the assets of that series or attributable to that class.
E. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets of the
Trust, including all assets allocated to each series or attributable to each
class of shares, shall at all times be considered as vested in the Board of
Trustees.
F. ADVISORY, MANAGEMENT AND DISTRIBUTION. Subject to a vote meeting the
requirements of the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive advisory and/or management
services with any partnership, corporation, trust, association or other
organization (the "Adviser"), 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 terms interpretive of or in addition to said
requirements and restrictions as the Board of 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 Board of Trustees may also, at any time and from time to time,
contract with the Adviser or any other partnership, corporation, trust,
association or other organization, appointing it 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 terms interpretive of or
in addition to said requirements and restrictions as the Board of Trustees may
determine.
The fact that:
12
(i) any of the shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter, or distributor 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 services 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, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, shareholder services or other agency
contract may have been or may hereafter be made by the Trust also has an
advisory or management contract, or principal underwriter's or distributor's
contract, or transfer, shareholder services 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.
EIGHTH: LIABILITY:
A. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE. All
persons extending credit to, contracting with or having any claim against the
Trust or a particular series or class of shares shall look only to the assets of
the Trust or the assets of that particular series or attributable to that
particular class 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.
The Board of Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, investment
adviser or principal underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing herein
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 by any Trustees or Trustee or by any officers or officer 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 Trustees or Trustee or as
officers or officer 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 of the particular
series of shares to which such instrument relates, 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 Trustees or Trustee or officers or officer, or
shareholders or shareholder individually.
Every note, bond, contract, instrument, certificate, share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Board of Trustees or
13
any of them in connection with the Trust shall be conclusively deemed to have
been executed or done only in or with respect to their or his capacity as
Trustees or Trustee, and such Trustees or Trustee shall not be personally liable
thereon.
B. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. 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 act or omission in accordance with such advice or for failing to follow such
advice. The Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
C. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person dealing
with the Board of Trustees or any Trustee shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by either or to
see to the application of any payments made or property transferred to the Trust
or upon its order.
NINTH: DETERMINATION OF NET PROFITS, ETC.; DIVIDENDS.
With respect to each series or class of shares authorized by the Board
of Trustees, the Board is expressly authorized to determine in accordance with
generally accepted accounting principles and practices what constitutes net
income, profits or earnings, or surplus and capital, to include in net income,
profits or earnings the portion of subscription or redemption prices
attributable to accrued net income, profits or earnings in such prices, and to
determine what accounting periods shall be used by the Trust for any purpose,
whether annual or any other period, including daily; to set apart out of any
funds of such series or class such reserves for such purposes as it shall
determine and to abolish the same; to declare and pay dividends and
distributions in cash, securities, or other property from surplus or capital or
any funds of such series or attributable to such class legally available
therefor, at such intervals (which may be as frequently as daily) or on such
other periodic basis as it shall determine; to declare such dividends or
distributions by means of a formula or other method of determination at meetings
held less frequently than the frequency of the effectiveness of such
declarations; to establish payment dates for dividends or any other
distributions on any basis, including dates occurring less frequently than the
effectiveness of the declaration thereof; and to provide for the payment of
declared dividends on a date earlier than the specified payment date in the case
of shareholders of such series or class redeeming their entire ownership of
shares of such series or class. Inasmuch as the computation of net income,
profits or earnings for Federal income tax purposes may vary from the
computation thereof on the books, the above provisions shall be interpreted to
give to the Board of Trustees the power in its discretion to distribute for any
fiscal year as dividends and as capital gain distributions, respectively,
additional amounts sufficient to enable the Trust to avoid or reduce its
liability for taxes. In the case of any series not divided into two or more
classes of shares, each distribution pursuant to this Article NINTH shall be
made ratably according to the number of shares of the series held by the several
shareholders on the applicable record date thereof, provided that no
distribution need be made on shares purchased pursuant to orders received, or
for which payment is made, after such time or times as
14
the Trustees may determine. In the case of any series divided into two or more
classes, each distribution pursuant to this Article NINTH may be made in whole
or in such parts as the Trustees may determine to the shareholders of any one or
more classes, and the distribution to the shareholders of any class shall be
made ratably according to the number of shares of the class (but need not be
made ratably according to the number of shares of the series, considered without
regard to class) held by the several shareholders on the record date thereof,
provided that no distribution need be made on shares purchased pursuant to
orders received, or for which payment is made, after such time or times as the
Trustees may determine. Any such distribution paid in shares will be paid at the
net asset value thereof as determined in accordance with Section III of Article
SIXTH of this Declaration of Trust.
No dividend or distribution (including, without limitation, any
distribution paid upon termination of the Trust or of any series or class) with
respect to, nor any redemption or repurchase of, the shares of any series or
class shall be effected by the Trust other than from the assets of such series
or class.
TENTH: INDEMNIFICATION.
A. INDEMNIFICATION GENERALLY. The Trust shall indemnify, to the fullest
extent permitted by applicable law, each person who is or has been a Trustee or
officer (including each person who serves or has served at the Trust's request
as a director, officer, or trustee of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise, and any heir,
administrator or executor of such person) (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
attorney's fees reasonably incurred by such Covered Person in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil, criminal, administrative or investigative, and any appeal therefrom (a
"Proceeding"), 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 being or having been such a Covered Person.
B. DETERMINATION OF ELIGIBILITY. Notwithstanding the provisions of
Section A of Article TENTH, to the extent required under the 1940 Act,
(i) Article TENTH, Section A, shall not protect any person against any
liability to the Trust or to its shareholders to which he 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 office;
(ii) in the absence of a final decision on the merits by a court or
other body before whom a Proceeding was brought that a Covered Person was not
liable by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of his office, no
indemnification shall be permitted unless a determination that such person was
not so liable shall have been made on behalf of the Trust by (a) the vote of a
majority of "disinterested, nonparty Trustees," as defined below, or (b) an
independent legal counsel as expressed in a written opinion; and
15
(iii) the Trust shall not advance attorneys' fees incurred by a Covered
Person in connection with Proceeding unless the Trust receives an undertaking by
or on behalf of the Covered Person to repay the advance (unless it is ultimately
determined that he is entitled to indemnification) and (a) the Covered Person
shall provide security for his undertaking, or (b) the Trust shall be insured
against losses arising by reason of any lawful advances, or (c) a majority of
the disinterested, nonparty Trustees of the Trust or an independent legal
counsel, as expressed in a written opinion, shall determine, based on a review
of readily available facts (as opposed to a full trial type inquiry), that there
is reason to believe that the Covered Person ultimately will be found entitled
to indemnification. Such undertaking shall provide that the Covered Person to
whom the advance was made shall not be obligated to repay pursuant to such
undertaking until the final determination of any pending Proceeding in a court
of competent jurisdiction, including appeals therefrom, concerning the right of
such Covered Person to be indemnified by the Trust or the obligation of such
person to repay pursuant to the undertaking.
Any approval pursuant to this Section shall not prevent the recovery
from any Covered Person of any amount paid to such Covered Person in accordance
with this Section as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in, or not
opposed to, 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
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
As used in this Article TENTH, the term "disinterested, nonparty
Trustee" is a Trustee who is not an "interested person" of the Trust, as defined
in Section 2(a)(19) of the 1940 Act and against whom none of the Proceedings in
question or another action, suit or other Proceeding on the same or similar
grounds is then or has been pending.
C. 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. Nothing contained in this Article shall affect
any rights to indemnification to which Covered Persons and other persons may be
entitled by contract (apart from the provisions of this Article TENTH) or
otherwise under law, nor to limit the power of the Trust to indemnify such
persons.
D. SHAREHOLDERS. 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, his or her
non-compliance with applicable federal tax law, 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.
E. CONTRACTUAL RIGHTS. This Article TENTH shall be deemed to be a
contract between the Trust and each person who is a Covered Person at any time
this Article TENTH is in effect. Any repeal or other modification of this
Article TENTH or of any applicable laws shall not limit any rights of
indemnification then existing or arising out of events, acts, or omissions
occurring prior to such repeal or modification, including, without limitation,
the right to
16
indemnification for Proceedings commenced after such repeal or modification to
enforce this Article TENTH with respect to events, acts or omissions prior to
repeal or modification.
F. PROTECTION OF RIGHTS. If a written claim for indemnification by a
Covered Person under this Article TENTH is not promptly paid in full by the
Trust after receipt by the Trust of a such claim, or if expenses have not been
promptly advanced after compliance by a Covered Person with the requirements of
this Article TENTH for such advancement, such Covered Person may, at any time
thereafter, bring suit against the Trust to recover the unpaid amount of the
claim or the advancement of expenses. If successful, in whole or in part, in
such suit, such Covered Person shall also be entitled to be paid the reasonable
expense therefor. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the requirements of this Article TENTH
for advancement of expenses have been met by such Covered Person) that the
indemnification of the Covered Person is prohibited, but the burden of proving
such defense shall be on the Trust. Neither the failure of the Trust, including
its disinterested non-party Trustees or independent legal counsel, to have made
a determination that indemnification of Covered Person is proper in the
circumstances because he or she has met the applicable standard of conduct
required under the 1940 Act, nor the actual determination by the Trust,
including its disinterested non-party Trustees or independent legal counsel,
that the Covered Person had not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that such Covered Person had
not met the applicable standard of conduct.
ELEVENTH: RESERVATION OF RIGHT TO AMEND.
A. BY BOARD OF TRUSTEES. Except when otherwise required by the 1940
Act, this Declaration of Trust may be amended at any time by a majority of the
Trustees then in office, provided notice of any amendment (other than amendments
having the purpose of supplying any omission, curing any ambiguity or curing,
correcting or supplementing any defective or inconsistent provision contained
herein, or having any other purpose which is ministerial or clerical in nature)
shall be mailed promptly to shareholders of record at the close of business on
the effective date of such amendment.
B. BY SHAREHOLDERS. Except when otherwise required by the 1940 Act,
this Declaration of Trust may be amended at any time by a majority vote of the
shares of the Trust entitled to be voted.
TWELFTH: SHAREHOLDERS' VOTING POWERS AND MEETINGS.
A. SHAREHOLDERS' VOTING POWERS. The shareholders shall have power to
vote only (i) for the election or removal of Trustees as provided in Article
SEVENTH, Section A; (ii) with respect to any investment adviser as provided in
Article SEVENTH, Section F; (iii) with respect to any termination of this Trust
or a series thereof to the extent and as provided in Article FOURTEENTH; (iv)
with respect to any amendment of this Declaration of Trust to the extent and as
provided in Article ELEVENTH, Section B; (v) 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 (vi) with respect to such additional matters relating to the Trust as
17
may be required by the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the SEC, or as the Board of Trustees may consider
necessary or desirable. Each whole share outstanding on the record date
established in accordance with the By-Laws 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,
shares shall be voted in the aggregate as a single class without regard to
series or class, except: (1) when required by the 1940 Act or other applicable
law or when the Trustees shall have determined that the matter affects one or
more series or classes materially differently, shares shall be voted by
individual series or class; or (2) when the Board of Trustees has determined
that the matter affects only the interests of one or more series or classes,
then only shareholders of such series or classes shall be entitled to vote
thereon. There shall be no cumulative voting in the election of the Board of
Trustees.
Shares may be voted in person or by proxy. A proxy with respect to
shares held in the names 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. At all meetings of shareholders, unless
inspectors of election have been appointed, all questions relating to the
qualification of voters and the validity of proxies and the acceptance or
rejection of votes shall be decided by the chairman of the meeting. Unless
otherwise specified in the proxy, the proxy shall apply to all shares of each
series of the Trust owned by the shareholder.
Until shares are issued, the Board of Trustees may exercise all rights
of shareholders and may take any action required by law, this Declaration of
Trust or the By-Laws to be taken by shareholders.
B. MEETINGS. Meetings of shareholders of the Trust or of any series or
class may be called by the Board of Trustees, the President, the Executive
Vice-President, any Vice-President, or such other person or persons as may be
specified in the By-Laws and held from time to time for the purpose of taking
action upon any matter requiring the vote or the authority of the shareholders
of the Trust or any series or class as herein provided or upon any other matter
deemed by the Board of Trustees to be necessary or desirable. Meetings of
shareholders of the Trust or of any series or class shall be called by the
Secretary or such other person or persons as may be specified in the By-Laws
upon written application by shareholders holding at least 10% of the outstanding
shares of the Trust, if shareholders of all series and classes are required
hereunder to vote in the aggregate and not by individual series or class at such
meeting, or of any series or class, if shareholders of such series or class are
entitled hereunder to vote by individual series or class at such meeting,
requesting that a meeting be called for a purpose requiring action by the
shareholders as provided herein or in the By-Laws and provided that such
application shall state the purpose or purposes of such meeting and the matters
proposed to be acted on.
C. QUORUM AND REQUIRED VOTE. Thirty percent of the shares entitled to
vote shall be a quorum for the transaction of business at a shareholders'
meeting, except that if any provision of law or of this Declaration of Trust
permits or requires that holders of any series or class shall vote as a series
or class, then thirty percent of the aggregate number of shares of each
18
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, however,
shall be sufficient for adjournments or if no shares are represented thereat,
any officer present thereat entitled to preside or act as secretary of such
meeting may adjourn the meeting. 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 By-Laws, a majority of the shares
voted shall decide any questions and a plurality shall elect any Trustee,
provided that where any provision of law or of this Declaration of Trust permits
or 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
shall decide that matter insofar as that series or class is concerned.
The vote upon any question shall be by written ballot whenever
requested by any person entitled to vote but, unless such a request is made,
voting may be conducted by voice vote or in any other way approved by the
meeting.
D. PLACE OF MEETING. All shareholders' meetings shall be held at the
office of the Trust in the City of Boston, Massachusetts, except that the Board
of Trustees or the President of the Trust may fix a different place of meeting
within the United States, which shall be specified in the notice or waiver of
notice of such meeting.
E. NOTICE OF MEETINGS; ADJOURNMENT. The Secretary or an Assistant
Secretary shall cause notice of the place, date and hour and the purpose or
purposes for which a meeting is called, to be mailed, postage prepaid, not less
than seven days before the date of such meeting, to each shareholder entitled to
vote at such meeting, at his address as it appears on the records of the Trust.
Notice of any shareholders' meeting need not be given to any shareholder who
shall sign a written waiver of such notice, whether before or after the time of
such meeting, which waiver shall be filed with the record of such meeting, or to
any shareholder who shall attend such meeting in person or by proxy. A meeting
of shareholders convened on the date for which it was called may be adjourned
from time to time, without further notice, to a date not more than 120 days
after the original record date.
F. SHARE LEDGER. It shall be the duty of the Secretary or Assistant
Secretary of the Trust to cause an original or duplicate share ledger to be
maintained at the office of the Trust's transfer agent. Such share ledger may be
in written form or any other form capable of being converted into written form
within a reasonable time for visual inspection.
G. ACTION BY WRITTEN CONSENT. 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 By-Laws) 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.
THIRTEENTH: USE OF NAME.
The Trust acknowledges that it is adopting its trust name, and may
adopt the names of various series of the Trust, through permission of Xxxxx Xxx
& Xxxxxxx Incorporated, a
19
Delaware corporation, and agrees that Xxxxx Xxx & Farnham Incorporated reserves
to itself and any successor to its business the right to grant the non-exclusive
right to use the name "SteinRoe Variable Investment Trust" or "Xxxxx Xxx &
Xxxxxxx" or "Xxxxx Xxx" or any similar name, or "Liberty" or any other tradename
adopted by the Trust's investment adviser or any of its affiliates, to any other
entity, including but not limited to any investment company of which Xxxxx Xxx &
Farnham Incorporated or any subsidiary or affiliate thereof or any successor to
the business thereof shall be the investment adviser.
FOURTEENTH: MISCELLANEOUS.
A. DURATION AND TERMINATION OF TRUST. Unless terminated as provided
herein, the Trust shall continue without limitation of time. The Trust may be
terminated at any time by the Trustees by written notice to the shareholders
unless otherwise required by law. Any series of shares may be terminated at any
time by the Trustees by written notice to the shareholders of such series unless
otherwise required by law.
Upon termination of the Trust or of any one or more series of shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated 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 securities, 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, 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.
Anything contained herein or otherwise to the contrary notwithstanding,
the Trustees upon affirmative majority vote, may (a) select any entity, be it a
corporation, association, trust or other kind of organization, or organize any
such kind of entity, to take over the Trust property and carry on the affairs of
the Trust, (b) merge the Trust into or sell, convey and transfer the Trust
property to any such entity for such consideration and upon terms and conditions
without limitation as they in their discretion deem suitable, and (c) take such
other action as they may in their discretion deem either necessary or
appropriate to accomplish or implement any action taken hereunder.
B. FILING OF COPIES, REFERENCES, HEADINGS. 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 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 such
as "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
20
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.
C. APPLICABLE LAW. This Declaration of Trust is made in the
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. 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.
D. SEVERABILITY. If any Article or other portion of this Declaration of
Trust shall be invalidated or held to be unenforceable on any ground by any
court of competent jurisdiction, the decision of which shall have not been
reversed on appeal, such invalidity or unenforceability shall not affect the
other provisions hereof, and this Declaration of Trust shall be construed in all
respects as if such invalid or unenforceable provision had been omitted
herefrom.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seal for themselves and their assigns, as of the day and year first above
written.
/s/Xxxx X. Xxxxx, Xx. /s/Xxxxxxx X. Xxxxxx
Trustee Trustee
/s/Xxxxxxx X. Xxxx /s/Xxxxx Xxxxxxxx Xxxxx
Trustee Trustee
/s/Xxxxxxx Xxxx /s/Xxxxxx Xxxxxxxx
Trustee Trustee
/s/Xxxxxxx X. Xxxxxx
Trustee
21
THE STATE OF ILLINOIS)
COUNTY OF XXXX) ss
Boston, May 22, 2000.
Then personally appeared each of the above-named Trustees, and each
acknowledged the foregoing instrument to be his or her free act and deed, before
me.
/s/Xxxx Xxxxxxxxx
Notary Public
My commission expires: 10/6/03
------------
(NOTARIAL SEAL)
22
