XXXX-CAP PORTFOLIO
AMENDMENT TO AGREEMENT AND DECLARATION OF
TRUST
AMENDMENT effective November 14, 2011, made to
the Agreement and Declaration of Trust dated December 14,
2009, as amended, (hereinafter called the "Declaration") of XXXX-
Cap Portfolio, a Massachusetts business trust (hereinafter called
the "Trust"), by at least a majority of the Trustees of the Trust in
office on November 14, 2011. This amendment supersedes and
replaces in its entirety the amendment to the Declaration
executed on December 21, 2011.
WHEREAS, Section 10.4 of Article X of the Declaration
empowers the Trustees of the Trust to amend the Declaration
without the vote or consent of Shareholders;
NOW, THEREFORE, at least a majority of the duly
elected and qualified Trustees do hereby amend the Declaration
in the following manner:
1. Article X Section 10.2 of the Declaration is
hereby amended and restated in its entirety to
read as follows:
ARTICLE X
10.2. Termination.
(a) The Trust may be
terminated (i) by the affirmative vote of Holders of not less than
two-thirds of all Shares at any meeting of Holders or by an
instrument in writing without a meeting consented to by Holders of
not less than two-thirds of all Shares, or (ii) by the approval of a
majority of the Trustees then in office to be followed by written
notice to the Holders. Upon any such termination,
(i) the Trust shall carry on no business except for the
purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of
the Trust and all of the powers of the Trustees under
this Declaration shall continue until the affairs of the
Trust have been wound up, including the power to fulfill
or discharge the contracts of the Trust, collect the assets
of the Trust, sell, convey, assign, exchange or otherwise
dispose of all or any part of the Trust Property to one or
more Persons at public or private sale for consideration
which may consist in whole or in part of cash, securities
or other property of any kind, discharge or pay the
liabilities of the Trust, and do all other acts appropriate to
liquidate the business of the Trust; provided that any
sale, conveyance, assignment, exchange or other
disposition of all or substantially all the Trust Property
shall require approval of the principal terms of the
transaction and the nature and amount of the
consideration by the vote of Holders holding more than
50% of all Shares; and
(iii) after paying or adequately providing for the payment
of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements as they deem
necessary for their protection, the Trustees shall
distribute the remaining Trust Property, in cash or in kind
or partly each, among the Holders according to their
respective rights as set forth in the procedures
established pursuant to Section 8.2 hereof.
(b) Upon termination of the Trust and
distribution to the Holders as herein provided, a Trustee or an
officer of the Trust shall execute and file with the records of the
Trust an instrument in writing setting forth the fact of such
termination and distribution. Upon termination of the Trust, the
Trustees shall thereupon be discharged from all further liabilities
and duties hereunder, and the rights and interests of all Holders
shall thereupon cease.
(c) After termination of the Trust, and
distribution to the Holders as herein provided, a Trustee or an
officer of the Trust shall execute and lodge among the records of
the Trust and file with the Massachusetts Secretary of State an
instrument and a certificate (which may be part of such
instrument) in writing setting forth the fact of such termination and
that it has been duly adopted by the Trustees, and the Trustees
shall thereupon be discharged from all further liabilities and duties
with respect to the Trust, and rights and interests of all Holders of
the Trust.
* * * * *
IN WITNESS WHEREOF, the undersigned certifies this
amendment has been duly adopted at a meeting of the Board of
Trustees held on November 14, 2011. Signed this 25th day of
January, 2012.
/s/ Xxxxxxx X. Gemma
Xxxxxxx X. Gemma
Secretary to the Trust
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