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Exhibit (a)
EATON VANCE VARIABLE TRUST
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DECLARATION OF TRUST
Dated August 14, 2000
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TABLE OF CONTENTS
ARTICLE I - NAME AND DEFINITIONS...............................................4
Section 1.1. Name..................................................4
Section 1.2. Definitions...........................................4
ARTICLE II - TRUSTEES..........................................................6
Section 2.1. Management of the Trust...............................6
Section 2.2. General Powers........................................6
Section 2.3. Investments...........................................7
Section 2.4. Legal Title...........................................9
Section 2.5. By-Laws...............................................9
Section 2.6. Distribution and Repurchase of Shares.................9
Section 2.7. Delegation............................................9
Section 2.8. Collection and Payment...............................10
Section 2.9. Expenses.............................................10
Section 2.10. Manner of Acting.....................................10
Section 2.11. Miscellaneous Powers.................................10
Section 2.12. Litigation...........................................11
ARTICLE III - CONTRACTS.......................................................11
Section 3.1. Principal Underwriter................................11
Section 3.2. Investment Adviser...................................11
Section 3.3. Administrator........................................12
Section 3.4. Other Service Providers..............................12
Section 3.5. Transfer Agents......................................12
Section 3.6. Custodian............................................12
Section 3.7. Plans of Distribution................................12
Section 3.8 Affiliations.........................................12
ARTICLE IV - LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS....13
Section 4.1. No Personal Liability of Shareholders,
Trustees, Officers and Employees.....................13
Section 4.2. Trustee's Good Faith Action; Advice to
Others; No Bond or Surety............................13
Section 4.3. Indemnification......................................13
Section 4.4. No Duty of Investigation.............................14
Section 4.5. Reliance on Records and Experts......................14
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ARTICLE V - SHARES OF BENEFICIAL INTEREST.....................................14
Section 5.1. Shares of Beneficial Interest........................14
Section 5.2. Rights of Shareholders...............................15
Section 5.3. Trust Only...........................................15
Section 5.4. Issuance of Shares...................................15
Section 5.5. Series and Class Designations........................16
Section 5.6. Assent to Declaration of Trust and By-Laws...........18
ARTICLE VI - REDEMPTIONS AND REPURCHASES......................................18
Section 6.1. Redemption of Shares.................................18
Section 6.2. Price................................................19
Section 6.3. Payment..............................................19
Section 6.4. Effect of Suspension of Determination
of Net Asset Value...................................19
Section 6.5. Repurchase by Agreement..............................19
Section 6.6. Redemption of Shareholder's Interest.................19
Section 6.7. Redemption of Shares in Order to Qualify
as Regulated Investment Company;
Disclosure of Holding................................19
Section 6.8. Reduction in Number of Outstanding
Shares Pursuant to Net Asset Value Formula...........20
Section 6.9. Suspension of Right of Redemption....................20
ARTICLE VII - DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS..................................................20
Section 7.1. Net Asset Value......................................20
Section 7.2. Dividends and Distributions..........................21
Section 7.3. Constant Net Asset Value; Reduction
of Outstanding Shares................................21
Section 7.4. Power to Modify Foregoing Procedures.................22
ARTICLE VIII - DURATION; TERMINATION OF TRUST OR A
CLASS OR SERIES; MERGERS; AMENDMENTS..........................................22
Section 8.1. Duration.............................................22
Section 8.2. Merger or Termination of the Trust
or a Series or a Class...............................22
Section 8.3. Merger, Consolidation or
Sale of Assets of a Series...........................23
Section 8.4. Amendments...........................................23
ARTICLE IX - MISCELLANEOUS....................................................23
Section 9.1. Use of the Words "Eaton Vance".......................24
Section 9.2. Filing of Copies, References,
Headings and Counterparts............................25
Section 9.3. Applicable Law.......................................25
Section 9.4. Provisions in Conflict with Law or Regulations.......25
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DECLARATION OF TRUST
OF
EATON VANCE VARIABLE TRUST
Dated: August 14, 2000
DECLARATION OF TRUST, made August 14, 2000 by Jessica M. Bibliowicz, Donald
R. Dwight, James B. Hawkes, Samuel L. Hayes, III, Norton H. Reamer, Lynn A.
Stout and Jack L. Treynor, hereinafter referred to collectively as the
"Trustees" and individually as a "Trustee", which terms shall include any
successor Trustees or Trustee.
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto; and
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the trust established hereunder shall be held and managed under
this Declaration of Trust as herein set forth.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the trust created hereby is Eaton Vance
Variable Trust (the "Trust").
SECTION 1.2. DEFINITIONS. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "Administrator" means the party, other than the Trust, to a contract
described in Section 3.3 hereof.
(b) "By-Laws" means the By-Laws referred to in Section 2.5 hereof, as from
time to time amended.
(c) "Class" means any division or Class of Shares within a Series or Fund,
which Class is or has been established within such Series or Fund in accordance
with the provisions of Article V.
(d) The term "Commission" has the meaning given it in the 1940 Act.
(e) "Custodian" means any person other than he Trust who has custody of any
Trust Property as required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities described in said
Section 17(f).
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(f) "Declaration" means this Declaration of Trust as amended from time to
time. Reference in this Declaration of Trust to "Declaration," "hereof,"
"herein," and "hereunder" shall be deemed to refer to this Declaration rather
than exclusively to the article or section in which such words appear.
(g) "Fund" or "Funds," individually or collectively, means the separate
Series of Shares of the Trust, together with the assets and liabilities
belonging and allocated thereto.
(h) "His" shall include the feminine and neuter, as well as the masculine,
genders.
(i) The term "Interested Person" has the meaning specified in the 1940 Act
subject, however, to such exceptions and exemptions as my be granted by the
Commission in any rule, regulation or order.
(j) "Investment Adviser" means the party, other than the Trust, to an
agreement described in Section 3.2 hereof.
(k) The "1940 Act" means the Investment Company Act of 1940 and the Rules
and Regulations thereunder, as amended from time to time.
(l) "Person" means and includes individuals, corporations, partnerships,
trusts, associations, firms joint ventures and other entities, whether or not
legal entities, as well as governments instrumentalities, and agencies and
political subdivisions thereof, and quasi-governmental agencies and
instrumentalities.
(m) "Principal Underwriter" means the party, other than the Trust, to a
contract described in Section 3.1 hereof.
(n) "Prospectus" means the Prospectus and Statement of Additional
Information included in the Registration Statement of the Trust under the
Securities Act of 1933 as such Prospectus and Statement of Additional
Information may be amended or supplemented and filed with the Commission from
time to time.
(o) "Series" individually or collectively means the separately managed
component(s) of Fund(s) of the Trust (or, if the Trust shall have only one such
component of Fund then that one) as may be established and designated from time
to time by the Trustees pursuant to Section 5.5 hereof.
(p) "Shareholder" means a record owner of Outstanding Shares. A shareholder
of Shares of a Series shall be deemed to own a proportionate undivided
beneficial interest in such Series equal to the number of Shares of such Series
of which he is the record owner divided by the total number of Outstanding
Shares of such Series. A Shareholder of Shares of a Class within a Series shall
be deemed to own a proportionate undivided beneficial interest in such Class
equal to the number of Shares of such Class of which he is the record owner
divided by the total number of Outstanding Shares of such Class. As used herein
the term "Shareholder" shall, when applicable to one or more Series of Funds or
to one or more Classes thereof, refer to the record owners of Outstanding Shares
of such Series, Fund or Funds or of such Class or Classes of shares.
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(q) "Shares" means the equal proportionate units of interest into which the
beneficial interest in the Trust shall be divided from time to time, including
the Shares of any and all Series or of any Class within any and all Series of
any Class within any Series (as the context may require) which may be
established by the Trustees, and includes fractions of Shares as well as whole
Shares. "Outstanding Shares" means those Shares shown from time to time on the
books of the Trust or its Transfer Agent as then issued and outstanding, but
shall not include Shares which have been redeemed or repurchased by the Trust
and which are at the time held in the treasury of the Trust.
(r) "Transfer Agent" means any Person other than the Trust who maintains
the Shareholder records of the Trust, such as the list of Shareholders, the
number of Shares credited to each account, and the like.
(s) "Trust" means Eaton Vance Variable Trust. As used herein the term Trust
shall, when applicable to one or more Series or Funds, refer to such series or
Funds.
(t) The "Trustees" means the persons who have signed this Declaration, so
long as they shall continue in office in accordance with the terms hereof, and
all other persons who now serve or may from time to time be duly elected,
qualified and serving as Trustees in accordance with the provisions of Article
II hereof and the By-Laws of the Trust, and reference herein to a Trustee of the
Trustees shall refer to such person or persons in this capacity or their
capacities as trustees hereunder.
(u) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the Trust or the
Trustees including any and all assets of or allocated to any Series or Class, as
the context may require.
(v) Except as such term may be otherwise defined by the Trustees in
connection with any meeting or other action of Shareholders or in conjunction
with the establishment of any Series or Class of Shares, the term "vote" when
used in connection with an action of Shareholders shall include a vote taken at
a meeting of Shareholders or the consent or consents of Shareholders taken
without such a meeting. Except as such term may be otherwise defined by the
Trustees in connection with any meeting or other action of Shareholders or in
conjunction with the establishment of any Series or Class of Shares, the term
"vote of a majority of the outstanding voting securities" as used is Sections
8.2 and 8.4 shall have he same meaning as is assigned to that term in the 1940
Act.
ARTICLE II
TRUSTEES
SECTION 2.1. MANAGEMENT OF THE TRUST. The business and affairs of the Trust
shall be managed by the Trustees and they shall have all powers and authority
necessary, appropriate or desirable to perform that function. The number, term
of office, manner of election, resignation, filling of vacancies and procedures
with respect to meetings and actions of the Trustees shall be as prescribed in
the By-Laws of the Trust.
SECTION 2.2. GENERAL POWERS. The Trustees in all instances shall act as
principals for and on behalf of the Trust and the applicable Series thereof, and
their acts shall bind the Trust and the applicable Series. The business and
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affairs of the Trust shall be managed by the Trustees and they shall have full
power and authority to do any and all acts and to make and execute any and all
contracts and instruments that they may consider necessary, appropriate or
desirable in connection with the management of the Trust. The Trustees shall not
be bound or limited in any way by present or future laws, practices or customs
in regard to trust investments or to other investments which may be made by
fiduciaries, but shall have full authority and power to make any and all
investments which they, in their uncontrolled discretion, shall deem proper to
promote, implement or accomplish the various objectives and interests of the
Trust and of its Series of Shares. The Trustees shall have full power and
authority to adopt such accounting and tax accounting practices as they consider
appropriate for the Trust and for any Series or Class of Shares. The Trustees
shall have exclusive and absolute control over the Trust Property and over the
business of the Trust to the same extent as if the Trustees were the sole owners
of the Trust Property and business in their own right, and with such full powers
of delegation as the Trustees may exercise from time to time. The Trustees shall
have power to conduct the business of the Trust and carry on its operations in
any and all of its branches and maintain offices both within and without the
Commonwealth of Massachusetts, in any and all states of the United States of
America, in the District of Columbia, and in any and all commonwealths,
territories, dependencies, colonies, possessions, agencies of instrumentalities
of the United States of America and of foreign governments, and to do all such
other things as they deem necessary, appropriate or desirable in order to
promote or implement the interests of the Trust or of any Series or Class of
Shares although such things are not herein specifically mentioned. Any
determinations to what is in the interests of the Trust or of any Series or
Class of Shares made by the Trustees in good fait shall be conclusive and
binding upon all Shareholders. In construing the provisions of this Declaration,
the presumption shall be in favor of a grant of plenary power and authority to
the Trustees.
The enumeration of any specific power in this Declaration shall not be
construed as limiting the aforesaid general and plenary powers.
SECTION 2.3. INVESTMENTS. The Trustees shall have full power and authority:
(a) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations.
(b) To acquire or buy, and invest Trust Property in, own, hold for
investment or otherwise, and to sell or otherwise dispose of, all types and
kinds of securities and investments of any kind including, but not limited to,
stocks, profit-sharing interests or participations and all other contracts for
or evidences of equity interests, bonds, debentures, warrants and rights to
purchase securities, and interest in loans, certificates of beneficial interest,
bills, notes and all other contracts for or evidences of indebtedness, money
market instruments including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and other obligations, and all other
negotiable and non-negotiable securities and instruments, however named or
described, issued by corporations, trusts, associations or any other Persons,
domestic or foreign, or issued or guaranteed by the United States of America or
any agency or instrumentality thereof, by the government of any foreign country,
by any State, territory or possession of the United States, by any political
subdivision or agency or instrumentality of any State or foreign country, or by
any other government or other governmental or quasi-governmental agency or
instrumentality, domestic or foreign; to acquire and dispose of interests in
domestic or foreign loans made by banks and other financial institutions; to
deposit any assets of the Trust in any bank, trust company or banking
institution or retain any such assets in domestic or foreign cash or currency;
to purchase and sell gold and silver bullion, precious or strategic metals,
coins and currency of all countries; to engage in "when issued" and delayed
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delivery transactions; to enter into repurchase agreements, reverse repurchase
agreements and firm commitment agreements; to employ all types and kinds of
hedging techniques and investment management strategies; and to change the
investments of the Trust and of each Series.
(c) To acquire (by purchase, subscription or otherwise), to hold, to trade
in and deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any Trust Property or any of the
foregoing securities, instruments or investments; to purchase and sell (or
write) options on securities, currency, precious metals and other commodities,
indices, futures contracts and other financial instruments and assets and inter
into closing and other transactions in connection therewith; to enter into all
types of commodities contracts, including without limitation the purchase and
sale of futures contracts on securities, currency, precious metals and other
commodities, indices and other financial instruments and assets; to enter into
forward foreign currency exchange contracts and other foreign exchange and
currency transactions of all types and kinds; to enter into interest rate,
currency and other swap transactions; and to engage in all types and kinds of
hedging and risk management transactions.
(d) To exercise all rights, powers and privileges of ownership or interest
in all securities and other assets included in the Trust Property, including
without limitation the right to vote thereon and otherwise act with respect
thereto; and to do all acts and things for the preservation, protection,
improvement and enhancement in value of all such securities and assets, and to
issue general unsecured or other obligations of the Trust, and enter into
indenture agreements relating thereto.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, lease, develop and dispose of (by sale or otherwise) any type or kind
of property, real or personal, including domestic or foreign currency, and any
right or interest therein.
(f) To borrow money and in this connection issue notes, commercial paper or
other evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security all or any part of the Trust Property; to
endorse, guarantee, or undertake the performance of any obligation or engagement
of any other Person; and to lend all or any part of the Trust Property to other
Persons.
(g) To aid, support or assist by further investment or other action any
Person, any obligation of or interest in which is included in the Trust Property
or in the affairs of which the Trust or any Series 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; and to guarantee or become
surety on any or all of the contracts, securities and other obligations of any
such Person.
(h) To carry on any other business in connection with or incidental to any
of the foregoing powers referred to in this Declaration, to do everything
necessary, appropriate or desirable for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power referred to in this
Declaration, either alone or in association with others, and to do every other
act or thing incidental or appurtenant to or arising out of or connected with
such business or purposes, objects or powers.
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(i) To the extent necessary or appropriate to give effect to the
preferences, special or relative rights and privileges of any Series or Class,
to allocate assets, liabilities, income and expenses of the Trust to particular
Series or Classes or to apportion the same among two or more Series or Classes.
The foregoing clauses shall be construed both as objects and powers, and
shall not be held to limit or restrict in any manner the general and plenary
powers of the Trustees.
Notwithstanding any other provision herein, the Trustees shall have full
power in their discretion, without any requirement of approval by Shareholders,
to invest part or all of the Trust Property (or part or all of the assets of any
Fund), or to dispose of part or all of the Trust Property (or part or all of the
assets of any Fund) and invest the proceeds of such disposition, in securities
issued by one or more other investment companies registered under the 1940 Act.
Any such other investment company may (but need not) be a trust (formed under
the laws of the State of New York or of any other state) which is classified as
a partnership for federal income tax purposes.
SECTION 2.4. LEGAL TITLE. Legal title to all the Trust Property shall be
vested in the Trustees who from time to time shall be in office. The Trustees
may hold any security or other Trust Property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, and may cause
legal title to any security or other Trust Property to be held by or in the name
of one or more of the Trustees, or in the name of the Trust or any Series, or in
the name of a custodian, subcustodian, agent, securities depository, clearing
agency, system for the central handling of securities or other book-entry
system, or in the name of a nominee or nominees of the Trust of a Series, or in
the name of a nominee or nominees of a custodian, subcustodian, agent,
securities depository, clearing agent, system for the central handling of
securities or other book-entry system, or in the name of any other Person as
nominee. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the termination of the term of office, resignation, removal or death of a
Trustee he shall automatically cease to have any right, title or interest in any
of the Trust Property, and the right, title and interest of such Trustee in the
Trust Property shall vest automatically in the remaining Trustees.
SECTION 2.5. BY-LAWS. The Trustees shall have full power and authority to
adopt By-Laws providing for the conduct of the business of the Trust and
containing such other provisions as they deem necessary, appropriate or
desirable, and to amend and repeal such By-Laws. Unless the By-Laws specifically
require that Shareholders authorize or approve the amendment or repeal of a
particular provision of the By-Laws, any provision of the By-Laws may be amended
or repealed by the Trustees without Shareholder authorization or approval.
SECTION 2.6. DISTRIBUTION AND REPURCHASE OF SHARES. The Trustees shall have
full power and authority to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, transfer, and otherwise deal in
Shares. Shares may be sold for cash or property or other consideration whenever
and in such amounts and manner as the Trustees deem desirable. The Trustees
shall have full power to provide for the distribution of Shares either through
one or more principal underwriters or by the Trust itself, or both. The Trustees
shall have full power and authority to cause the Trust and any Series and Class
or Shares to finance distribution activities in the manner described in Section
3.7, and to authorize the Trust, on behalf of one or more Series or Classes of
Shares, to adopt or enter into one or more plans or arrangements whereby
multiple Series and Classes of Shares may be issued and sold to various types of
investors.
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SECTION 2.7. DELEGATION. The Trustees shall have full power and authority
to delegate from time to time to such of their number or to officers, employees
or agents of the Trust or to other Persons the doing of such things and the
execution of such agreements or other instruments either in the name of the
Trust or any Series of the Trust of the names of the Trustees or otherwise as
the Trustees may deem desirable or expedient.
SECTION 2.8. COLLECTION AND PAYMENT. The Trustees shall have full power and
authority to collect all property due to the Trust; to pay all claims, including
taxes, against the Trust or Trust Property; to prosecute, defend, compromise,
settle or abandon any claims relating to the Trust or Trust Property; to
foreclose any security interest securing any obligations, by virtue of which any
property is owed to the Trust; and to enter into releases, agreements and other
instruments.
SECTION 2.9. EXPENSES. The Trustees shall have full power and authority to
incur on behalf of the Trust or any Series or Class and pay any costs or
expenses which the Trustees deem necessary, appropriate, desirable or incidental
to carry out, implement or enhance the business or operations of the Trust or
any Series or Class thereof, and to pay compensation from the funds of the Trust
to themselves as Trustees. The Trustees shall determine the compensation of all
officers, employees and Trustees of the Trust. The Trustees shall have full
power and authority to cause the Trust to charge all or any part of any cost,
expense or expenditure (including without limitation any expense of selling or
distributing Shares) or tax against the principal or capital of the Trust or any
Series or Class, and to credit all or any part of the profit, income or receipt
(including without limitation any deferred sales charge or fee, whether
contingent or otherwise, paid or payable to the Trust or any Series or Class on
any redemption or repurchase of Shares) to the principal or capital of the Trust
or any Series or Class.
SECTION 2.10. MANNER OF ACTING. Except as otherwise provided herein or in
the By-Laws, the Trustees and committees of the Trustees shall have full power
and authority to act in any manner which they deem necessary, appropriate or
desirable to carry out, implement or enhance the business or operations of the
Trust or any Series thereof.
SECTION 2.11. MISCELLANEOUS POWERS. The Trustees shall have full power and
authority to: (a) distribute to Shareholders all or any part of the earnings or
profits, surplus (including paid-in surplus), capital (including paid-in
capital) or assets of the Trust or of any Series or Class of Shares, the amount
of such distributions and the manner of payment thereof to be solely at the
discretion of the Trustees; (b) employ, engage or contract with such Persons as
the Trustees may deem desirable for the transaction of the business or
operations of the Trust or any Series or Class thereof; (c) enter into or cause
the Trust or any Series thereof to enter into joint ventures, partnerships
(whether as general partner, limited partner or otherwise) and any other
combinations or associations; (d) remove Trustees or fill vacancies in or add to
their number, elect and remove such officers and appoint and terminate such
agents or employees or other Persons as the consider appropriate, and appoint
from their own number, and terminate, any one or more committees which may
exercise some or all of the power and authority of the Trustees as the Trustees
may determine; (e) purchase, and pay for out of Trust Property, insurance
policies which may insure such of the Shareholders, Trustees, officers,
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employees, agents, investment advisers, administrators, principal underwriters,
distributors or independent contractors of the Trust as the Trustees deem
appropriate against loss or liability arising by reason of holding any such
position or by reason of any action taken or omitted by any such Person in such
capacity, whether or not constituting negligence, or whether or not the Trust
would have the power to indemnify such Person against such loss or liability;
(f) establish pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and agents of
the Trust; (g) indemnify or reimburse any Person with whom the Trust or any
Series or Class thereof has dealings, including without limitation the
Investment Adviser, Administrator, Principal Underwriter, Transfer Agent,
financial service firms and other agents, to such extent as the Trustees shall
determine; (h) guarantee the indebtedness or contractual obligations of other
Persons; (i) determine and change the fiscal year of the Trust or any Series
thereof and the methods by which its and their books, accounts and records shall
be kept; and (j) adopt a seal for the Trust, but the absence of such seal shall
no impair the validity of any instrument executed on behalf of the Trust or any
Series thereof.
SECTION 2.12. LITIGATION. The Trustees shall have full power and authority,
in the name and on behalf of the Trust, to engage in and to prosecute, defend,
compromise, settle, abandon, or adjust by arbitration or otherwise, any actions,
suits proceedings, disputes, claims and demands relating to the Trust, and out
of the assets of the Trust or any Series or Class thereof to pay or to satisfy
any liabilities, losses, debts, claims or expenses (including without limitation
attorneys' fees) incurred in connection therewith, including those of
litigation, and such power shall include without limitation the power of the
Trustees or any committee thereof, in the exercise of their or its good faith
business judgment, to dismiss or terminate any action, suit, proceeding,
dispute, claim or demand, derivative or otherwise, brought by any Person,
including a Shareholder in his own name or in the name of the Trust or any
Series or Class thereof, whether or not the Trust or any Series or Class thereof
or any of the Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust or any Series or
Class thereof.
ARTICLE III
CONTRACTS
SECTION 3.1. PRINCIPAL UNDERWRITER. The Trustees may in their discretion
from time to time authorize the Trust to enter into one or more contracts
providing for the sale of the Shares. Pursuant to any such contract the Trust
may either agree to sell the Shares to the other party to the contractor appoint
such other party its sales agent for such Shares. In either case, any such
contract shall be on such terms and conditions as the Trustees may in their
discretion determine; and any such contract may also provide for the repurchase
or sale of Shares by such other party as principal or as agent of the Trust.
SECTION 3.2. INVESTMENT ADVISER. The Trustees may, subject to any approvals
by shareholders required by applicable law, in their discretion from time to
time authorize the Trust to enter into one or more investment advisory
agreements, or, if the Trustees establish multiple Series, separate investment
advisory agreements, with respect to one or more Series whereby the other party
or parties to any such agreements shall undertake to furnish the Trust or such
Series investment advisory and research facilities and services and such other
facilities and services, if any, as the Trustees shall consider desirable and
all upon such terms and conditions as the Trustees may in their discretion
determine. Notwithstanding any provisions of this Declaration, the Trustees may
authorize the Investment Adviser, in its discretion and without any prior
consultation with the Trust, to buy, sell, lend and otherwise trade and deal in
any and all securities, commodity contracts and other investments and assets of
the Trust and of each Series and to engage in and employ all types of
transactions and strategies in connection therewith. Any such action take
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pursuant to such agreement shall be deemed to have been authorized by all of the
Trustees.
The Trustees may also authorize the Trust to employ, or authorize the
Investment Adviser to employ, one or more sub-investment advisers from time to
time to perform such of the acts and services of the Investment Adviser and upon
such terms and conditions as ma be agreed upon between the Investment Adviser
and such sub-investment adviser and approved by the Trustees.
SECTION 3.3. ADMINISTRATOR. The Trustees may in their discretion from time
to time authorize the Trust to enter into an administration agreement or, if the
Trustees establish multiple Series or Classes, separate administration
agreements with respect to one or more Series or Classes, whereby the other
party to such agreement shall undertake to furnish to the Trust or a Series or a
Class thereof with such administrative facilities and services and such other
facilities and services, if any, as the Trustees consider desirable and all upon
such terms and conditions as the Trustees may in their discretion determine.
The Trustees may also authorize the Trust to employ or authorize the
Administrator to employ one or more sub-administrators from time to time to
perform such of the acts and services of the Administrator and upon such terms
and conditions as may be agreed upon between the Administrator and such
sub-administrator and approved by the Trustees.
SECTION 3.4. OTHER SERVICE PROVIDERS. The Trustees may in their discretion
from time to time authorize the Trust to enter into one or more agreements with
respect to one or more Series or Classes of Shares whereby the other party or
parties to any such agreements will undertake to provide to the Trust or Series
or Class or Shareholders or beneficial owners of Shares such services as the
Trustees consider desirable and all upon such terms and conditions as the
Trustees in their discretion may determine.
SECTION 3.5. TRANSFER AGENTS. The Trustees may in their discretion from
time to time appoint one or more transfer agents for the Trust or any Series
thereof. Any contract with a transfer agent shall be on such terms and
conditions as the Trustees may in their discretion determine.
SECTION 3.6. CUSTODIAN. The Trustees may appoint a bank or trust company
having an aggregate capital, surplus and undivided profits (as shown in its last
published report) of at least $2,000,000 as the principal custodian of the Trust
(the "Custodian") with authority as its agent to hold cash and securities owned
by the Trust and to release and deliver the same and otherwise to perform such
duties as the Treasurer may specify, and upon such terms and conditions as may
be agreed upon between the Trust and Custodian.
SECTION 3.7. PLANS OF DISTRIBUTION. The Trustees may in their discretion
authorize the Trust, on behalf of one or more Series or Classes of Shares, to
adopt or enter into a plan or plans of distribution and any related agreements
whereby the Trust or Series or Class may finance directly or indirectly any
activity which is primarily intended to result in sales of Shares or any
distribution activity within the meaning of Rule 12b-1 (or successor rule) under
the 1940 Act. Such plan or plans of distribution and any related agreements may
contain such terms and conditions as the Trustees may in their discretion
determine, subject to the requirements of the 1940 Act and any other applicable
rules and regulations.
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SECTION 3.8. AFFILIATIONS. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, creditor, director, officer, partner, trustee or employee of or has
any interest in any Person or any parent or affiliate of any such Person, with
which a contract or agreement of the character described in this Article III has
been or will be made or to which payments have been or will be made or that any
such Person, or any parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that
(ii) any such Person also has similar contracts, agreements or plans with
other investment companies (including, without limitation, the investment
companies referred to in the last paragraph of Section 2.3) or Persons, or has
other business activities or interests,
shall not affect in any way the validity of any such contract, agreement or plan
or disqualify any Shareholder, Trustee or officer of the Trust from authorizing,
voting upon or executing the same or create any liability or accountability to
the Trust or its Shareholders.
ARTICLE IV
LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS
SECTION 4.1. NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, OFFICERS AND
EMPLOYEES. No Shareholder shall be subject to any personal liability whatsoever
to any Person in connection with Trust Property or the acts, obligations or
affairs of the Trust or any Series thereof. All Persons dealing or contracting
with the Trustees as such or with the Trust or any Series thereof shall have
recourse only to the Trust or such Series for the payment of their claims or for
the payment or satisfaction of claims, obligations or liabilities arising out of
such dealings or contracts. No Trustee, officer or employee of the Trust,
whether past, present or future, shall be subject to any personal liability
whatsoever to any such Person, and all such Persons shall look solely to the
Trust Property, or the assets of one or more specific Series of the Trust if the
claim arises from the act, omission or other conduct of such Trustee, officer or
employee with respect to only such Series, for satisfaction of claims of any
nature arising in connection with the affairs of the Trust or such Series. If
any Shareholder, Trustee, officer or employee, as such, of the Trust or any
Series thereof, is made a party to any suit or proceeding to enforce any such
liability of the Trust or any Series, he shall not, on account thereof, be held
to any personal liability.
SECTION 4.2. TRUSTEE'S GOOD FAITH ACTION; ADVICE OF OTHERS; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of them or any
officer, agent, employee, consultant, investment adviser or other adviser,
administrator, distributor or principal underwriter, custodian or transfer,
dividend disbursing, shareholder servicing or accounting agent of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee.
The Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration and their duties as Trustees, and
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shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice. In discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely upon the records,
books and accounts of the Trust and upon reports made to the Trustees by any
officer, employee, agent, consultant, accountant, attorney, investment adviser
or other adviser, principal underwriter, expert, professional firm or
independent contractor. The Trustees as such shall not be required to give any
bond or surety or any other security for the performance of their duties. No
provision of this Declaration shall protect any Trustee or officer of the Trust
against any liability to the Trust of its Shareholders to which he would
otherwise be subject by reason of his own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
SECTION 4.3. INDEMNIFICATION. The Trustees may provide, whether in the
By-Laws or by contract, vote or other action, for the indemnification by the
Trust or by any Series or Class thereof of the Shareholders, Trustees, officers
and employees of the Trust and of such other Persons as the Trustees in the
exercise of their discretion my deem appropriate or desirable. Any such
indemnification may be mandatory of permissive, and may be insured against by
policies maintained by the Trust.
SECTION 4.4. NO DUTY OF INVESTIGATION. No purchaser, lender or other Person
dealing with the Trustees or any officer, employee or agent of the Trust or a
Series thereof shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by said officer, employee
or agent or be liable for the application of money or property paid, loaned, or
delivered to or on the order of the Trustees or of said officer, employee or
agent. Every obligation, contract, instrument, certificate, Share, other
security or undertaking of the Trust or a Series thereof, and every other act or
thing whatsoever executed in connection with the Trust shall be conclusively
presumed to have been executed or done by the executors thereof only in their
capacity as Trustees under this Declaration or in their capacity as officers,
employees or agents of the Trust or Series thereof. Every written obligation,
contract, instrument, certificate, Share, other security or undertaking of the
Trust or a Series thereof made or issued by the Trustees may recite that the
same is executed or made by them not individually, but as Trustees under the
Declaration, and that the obligations of the Trust or a Series thereof under any
such instrument are not binding upon any of the Trustees or Shareholders
individually, but bind only the Trust Property or the Trust Property of the
applicable Series, and may contain any further recital which they may deem
appropriate, but the omission of any such recital shall not operate to bind the
Trustees or Shareholders individually.
SECTION 4.5. RELIANCE ON RECORDS AND EXPERTS. Each Trustee, officer or
employee of the Trust or a Series thereof shall, in the performance of his
duties, be fully and completely justified and protected with regard to any act
or any failure to act resulting from reliance in good faith upon the records,
books and accounts of the Trust or a Series thereof, upon an opinion or other
advice of legal counsel, or upon reports made or advice given to the Trust or a
Series thereof by any Trustee or any of its officers employees or by the
Investment Adviser, the Administrator, The Custodian, The Principal Underwriter,
Transfer Agent, accountants, appraisers or other experts, advisers, consultants
or professionals selected with reasonable care by the Trustees or officers of
the Trust, regardless of whether the person rendering such report or advice may
also be a Trustee, officer or employee of the Trust.
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ARTICLE V
SHARES OF BENEFICIAL INTEREST
SECTION 5.1. BENEFICIAL INTEREST. The interest of the beneficiaries of the
Trust initially shall be divided into transferable Shares of beneficial interest
without par value. The number of such Shares of beneficial interest authorized
hereunder is unlimited, and the number of Shares of each Series or Class thereof
that may be issued hereunder is unlimited. The Trustees shall have the exclusive
authority without the requirement of Shareholder authorization or approval to
establish and designate one or more Series of Shares and one or more Classes
thereof as the Trustees deem necessary, appropriate or desirable. Each Share of
any series shall represent a beneficial interest only in the assets of that
Series. Subject to the provisions of Section 5.5 hereof, the Trustees may also
authorize the creation of additional Series of Shares (the proceeds of which may
be invested in separate and independent investment portfolios) and additional
Classes of Shares within any Series. All Series issued hereunder including,
without limitation, Shares issued in connection with a dividend or distribution
in Shares or a split in Shares, shall be fully paid and nonassessable.
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
Class or Series and as to the number of Shares of each Class or Series held from
time to time by each Shareholder. The Trustees may at any time discontinue the
issuance of Share certificates and may, by written notice to each Shareholder,
require the surrender of Share certificates to the Trust for cancellation. Such
surrender and cancellation shall not affect the ownership of Shares in the
Trust.
SECTION 5.2. RIGHTS OF SHAREHOLDERS. The ownership of the Trust property of
every description and the right to conduct any business of the Trust are vested
exclusively in the Trustees, and the Shareholders shall have no interest therein
other than the beneficial interest conferred by their Shares, and they shall
have no right to call for any partition or division of any property, profits,
rights or interests of the Trust or on any Fund nor can they be called upon to
share or assume any losses of the Trust or of any Fund or suffer an assessment
of any kind by virtue of their ownership of Shares. The Shares shall be personal
property giving only the rights specifically set forth in this Declaration. The
Shares shall not entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights, except as the Trustees may specifically determine
with respect to any Series of Class of Shares.
Every Shareholder by virtue of having become a Shareholder shall be held to
have expressly assented and agreed to the terms of this Declaration and the
Bylaws and to have become a party hereto and thereto. 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.
SECTION 5.3. TRUST ONLY. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a
Massachusetts business trust. Nothing in this Declaration shall be construed to
make the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
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SECTION 5.4. ISSUANCE OF SHARES. The Trustees in their discretion may, from
time to time and without any authorization or vote of the Shareholders, issue
Shares of any Class or Series, in addition to the then issued and outstanding
Shares and Shares held in the treasury, to such party or parties and for such
amount and type of consideration, including cash or property, a such time or
times and on such terms as the Trustees may deem appropriate or desirable,
except that only shares previously contracted to be sold may be issued during
any period when the right of redemption is suspended pursuant to Section 6.9
hereof, and may in such manner acquire other assets (including the acquisition
of assets subject to, and in connection with the assumption of, liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares and reissue and resell full and fractional Shares held in the
treasury. The Trustees may from time to time divide or combine the Shares of the
Trust or, if the Shares be divided into Series or Classes, of any Series or any
Class thereof of the Trust, into a greater or lesser number without thereby
changing the proportionate beneficial interests in the Trust or in the Trust
Property allocated or belonging to such Series or Class. Contributions to the
Trust or Series thereof may be accepted for, and Shares shall be redeemed as,
whole Shares and/or fractional Shares as the Trustees may in their discretion
determine. The Trustees may authorize the issuance of certificates of beneficial
interest to evidence the ownership of Shares. Shares held in the treasury shall
not be voted nor shall such shares be entitled to any dividends or other
distributions declared with respect thereto.
SECTION 5.5. SERIES AND CLASS DESIGNATIONS. Without limiting the exclusive
authority of the Trustees set forth in Section 5.1 to establish and designate
any further Series, the following Series are hereby established and designated:
Eaton Vance VT Worldwide Health Sciences Fund, Eaton Vance VT Information Age
Fund, and Eaton Vance VT Income Fund of Boston (the "Existing Series"). Without
limiting the exclusive authority of the Trustees set forth in Section 5.1 to
establish and designate any further Classes, there are hereby established and
designated distinct Classes of Shares of the Existing Series: (none as of the
date of this Declaration). The Shares of the Existing Series and such Classes
thereof herein established and designated and any Shares of any further Series
and Classes thereof that may from time to time be established and designated by
the Trustees shall be established and designated, and the variations in the
relative rights and preferences as between the different Series and Classes
shall be fixed and determined, by the Trustees (unless the Trustees otherwise
determine with respect to further Series or Classes at the time of establishing
and designating the same); provided, that all Shares shall be identical except
that there may be variations so fixed and determined between different Series or
Classes thereof as to investment objective, policies and restrictions, sales
charges, purchase prices, determination of net asset value, assets, liabilities,
expenses, costs, charges and reserves belonging or allocated thereto, the price,
terms and manner of redemption or repurchase, special and relative rights as to
dividends and distributions and on liquidation, conversion rights, exchange
rights, and voting rights. All references to Shares in this Declaration shall be
deemed to be Shares of any or all Series or Classes as the context may require.
As to any Existing Series and Classes, both heretofore and herein established
and designated, and any further division of the Trust into additional Series or
Classes, the following provisions shall be applicable:
(i) The number of authorized Shares and the number of Shares of each Series
or Class thereof that may be issued shall be unlimited. The Trustees may
classify or reclassify any unissued Shares or any Shares previously issued and
reacquired of any Series or Class into one or more other Series or one or more
other classes that may be established and designated from time to time. The
Trustees may hold as treasury shares (of the same or some other Series or
Class), reissue for such consideration and on such terms as they may determine,
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or cancel any Shares of any Series or Class reacquired by the Trust at their
discretion from time to time.
(ii) All consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived form any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that Series for all purposes, subject only to the rights
of creditors of such Series and except as may otherwise be required by
applicable tax laws, and shall be so recorded upon the books of account of the
Trust. In the event that there are any assets, income, earnings, profits, and
proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular Series, the Trustees or their delegate shall
allocate them among any one or more of the Series established and designated
form time to time in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. Each such allocation by the Trustees or
their delegate shall be conclusive and binding upon the Shareholders of all
Series for all purposes. No holder of Shares of any Series shall have any claim
on or right to any assets allocated or belonging to any other Series.
(iii) Any general liabilities, expenses, costs, charges or reserves of the
Trust which are no readily identifiable as belonging to any particular Series
shall be allocated and charged by the Trustees or their delegate to and among
any one or more of the Series established and designated from time to time in
such manner and on such basis as the Trustees in their sole discretion deem fair
and equitable. The assets belonging to each particular Series shall be charged
with the liabilities, expenses, costs, charges and reserves of the Trust so
allocated to that Series and all liabilities, expenses, costs, charges and
reserves attributable to that Series which are not readily identifiable as
belonging to any particular Class thereof. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees or their delegate shall be
conclusive and binding upon the Shareholders of all Series and Classes for all
purposes. The Trustees shall have full discretion to determine which items are
capital; and each such determination shall be conclusive and binding upon the
Shareholders. The assets of a particular Series of the Trust shall, under no
circumstances, be charged with liabilities, expenses, costs, charges and
reserves attributable to any other Series or Class thereof of the Trust. All
Persons extending credit to, or contracting with or having any claim against a
particular Series of the Trust shall look only to the assets of that particular
series for payment of such credit, contract or claim.
(iv) Dividends and distributions on Shares of a particular Series or Class
may be paid or credited in such manner and with such frequency as the Trustees
may determine, to the holders of Shares of that Series or Class, from such of
the earnings or profits, surplus (including paid-in surplus), capital (including
paid-in capital) or assets belonging to that Series, as the Trustees may deem
appropriate or desirable, after providing for actual and accrued liabilities,
expenses, costs, charges and reserves belonging and allocated to that Series or
Class. Such dividends and distributions may be paid daily or otherwise pursuant
to the offering prospectus relating to the Shares or pursuant to a standing vote
or votes of the Trustees adopted only once or from time to time or pursuant to
other authorization or instruction of the Trustees. All dividends and
distributions on Shares of a particular Series or Class shall be distributed pro
rata to the Shareholders of that Series or class in proportion to the number of
Shares of that Series or Class held by such Shareholders at the time of record
established for the payment or crediting of such dividends or distributions.
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(v) Each Share of a Series of the Trust shall represent a beneficial
interest in the net assets of such Series. Each holder of Shares of a Series or
Class thereof shall be entitled to receive his pro rata share of distributions
of income and capital gains made with respect to such Series or Class net of
liabilities, expenses, costs, charges and reserves belonging and allocated to
such Series or Class. Upon redemption of his Shares of indemnification for
liabilities incurred by reason of his being or having been a Shareholder of a
Series or Class, such Shareholder shall be paid solely out of the funds and
property of such Series of the Trust. Upon liquidation or termination of a
Series or Class thereof of the Trust, a Shareholder of such Series or Class
thereof shall be entitled to receive a pro rata share of the net assets of such
Series based on the net asset value of his Shares. A Share holder of a
particular Series of the Trust shall not be entitled to commence or participate
in a derivative or class action on behalf of any other Series or the
Shareholders of any other Series of the Trust.
(vi) On any matter submitted to a vote of Shareholder, the Shares entitled
to vote thereon and the manner in which such Shares shall be voted shall be as
set forth in the By-Laws or proxy materials for the meeting or other
solicitation materials or as otherwise determined by the Trustees, subject to
any applicable requirements of the 1940 Act. The Trustees shall have full power
and authority to call meetings of the Shareholder of a particular Class of
Classes of Shares or of one or more particular Series of Shares, or otherwise
call for the action of such Shareholders on any particular matter.
(vii) Except as otherwise provided in this Article V, the Trustees shall
have full power and authority to determine the designations, preferences,
privileges, sales charges, purchase prices, assets, liabilities, expenses,
costs, charges and reserves belonging or allocated thereto, limitations and
rights, including without limitation voting, dividend, distribution and
liquidation rights, of each Class and Series of Shares. Subject to any
applicable requirements of the 1940 Act, the Trustees shall have the authority
to provide that Shares of one Class shall be automatically converted into Shares
of another Class of the same Series or that the holders of Shares of any Series
or Class shall have the right to convert or exchange such Shares into shares of
one or more other Series or Classes of Shares, all in accordance with such
requirements, conditions and procedures as may be established by the Trustees.
(viii) The establishment and designation of any Series or Class of Shares
shall be effective upon the execution by a majority of the then Trustees of an
instrument setting forth such establishment and designation and the relative
rights and preferences of such Series or Class, or as otherwise provided in such
instrument. The Trustees may by an instrument subsequently executed by a
majority of their number amend, restate or rescind any prior instrument relating
to the establishment and designation of any such Series or Class. Each
instrument referred to in this paragraph shall have the status of an amendment
to this Declaration in accordance with Section 8.4 hereof, and a copy of each
such instrument shall be filed in accordance with Section 10.2 hereof.
SECTION 5.6. ASSENT TO DECLARATION OF TRUST AND BY-LAWS. Every Shareholder,
by virtue of having become a Shareholder, shall be held to have expressly
assented and agreed to all the terms and provisions of this Declaration and of
the By-Laws of the Trust.
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ARTICLE VI
REDEMPTION AND REPURCHASE OF SHARES
SECTION 6.1. REDEMPTION OF SHARES. (a) Shares of the Trust shall be
redeemable, at such times and in such manner as may be permitted by the Trustees
from time to time. The Trustees shall have full power and authority to vary and
change the right of redemption applicable to the various Series and Classes of
Shares established by the Trustees. Redeemed or repurchased shares may be resold
by the Trust. The Trust may require any shareholder to pay a sales charge to the
Trust, the Principal Underwriter or any other Person designated by the Trustees
upon redemption or repurchase of Shares in such amount and upon such conditions
as shall be determined from time to time by the Trustees.
(b) The Trust shall redeem the Shares of the Trust or any Series or Class
thereof at the price determined as hereinafter set forth, upon the appropriately
verified written application of the record holder thereof (or upon such other
form of request as the Trust may use for the purpose) deposited at such office
or agency as may be designated from time to time for that purpose by the
Trustees. The Trust may from time to time establish additional requirements,
terms, conditions and procedures, not inconsistent with the 1940 Act, relating
to the redemption of Shares.
SECTION 6.2. PRICE. Shares shall be redeemed at a price based on their net
asset value determined as set forth in Section 7.1 hereof as of such time as the
Trustees shall prescribe. The amount of any sales charge or redemption fee
payable upon redemption of shares may be deducted from the proceeds of such
redemption.
SECTION 6.3. PAYMENT. Payment of the redemption price of Shares thereof
shall be made in cash or in property to the Shareholder at such time and in the
manner, not inconsistent with the 1940 Act, as may be specified from time to
time in the then effective Prospectus relating to such shares, subject to the
provisions of Sections 6.4 and 6.9 hereof. Notwithstanding the foregoing, the
Trust of its agent may withhold from such redemption proceeds any amount arising
(i) from a liability of the redeeming Shareholder to the Trust or (ii) in
connection with any federal or state tax withholding requirements.
SECTION 6.4. EFFECT OF SUSPENSION OF DETERMINATION OF NET ASSET VALUE. If,
pursuant to Section 7.1 hereof, the Trust shall declare a suspension of the
determination of net asset value with respect to Shares of the Trust or of any
Series or class thereof, the rights of Shareholders (including those who shall
have applied for redemption pursuant to Section 6.1 hereof but who shall not yet
received payment) to have Shares redeemed and paid for by the Trust or a Series
shall be suspended until the termination of such suspension is declared. Any
record holder who shall have his redemption right so suspended may, during the
period of such suspension, by appropriate written notice at the office or agency
where his application or request for redemption was made, withdraw his
application or request and withdraw any Share certificates on deposit.
SECTION 6.5. REPURCHASE BY AGREEMENT. The Trust may repurchase Shares
directly, or through the Principal Underwriter or another agent designated for
the purpose, by agreement with the owner thereof at a price not exceeding the
net asset value per share determined as of such time as the Trustees shall
prescribe. The Trust may from time to time establish the requirements, terms,
conditions and procedures relating to such repurchases, and the amount of any
sales charge or repurchase fee payable on any repurchase of shares may be
deducted from the proceeds of such repurchase.
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SECTION 6.6. REDEMPTION OF SHAREHOLDER'S INTEREST. The Trustees, in their
sole discretion, may cause the Trust to redeem all of the shares of one or more
Series or Class thereof held by any Shareholder if the value of such Shares held
by such Shareholder is less than the minimum amount established from time to
time by the Trustees.
SECTION 6.7. REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED
INVESTMENT COMPANY; DISCLOSURE OF HOLDING. (a) If the Trustees shall, at any
time and in good faith, be of the opinion that direct or indirect ownership of
Shares or other securities of the Trust has or may become concentrated in any
Person to an extent which would disqualify the Trust or any Series of the Trust
as a regulated investment company under the Internal Revenue Code of 1986, then
the Trustees shall have the power by lot or other means deemed equitable by them
(i) to call for redemption by any such Person a number, or principal amount, of
Shares or other securities of the Trust or any Series of the Trust sufficient to
maintain or bring the direct or indirect ownership of Shares or other securities
of the Trust or any Series of the Trust into conformity with the requirements
for such qualification and (ii) to refuse to transfer or issue Shares or other
securities of the Trust or any Series of the Trust to any Person whose
acquisition of the Shares or other securities of the Trust or any Series of the
Trust in question would result in such disqualification. the redemption shall be
effected in the manner provided in Section 6.1 and at the redemption price
referred to in Section 6.2.
(b) The holders of Shares or other securities of the Trust shall upon
demand disclose to the Trustees in writing such information with respect to
direct and indirect ownership of shares or other securities of the Trust as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code of 1986, or to comply with the requirements of any other taxing authority.
SECTION 6.8. REDUCTION IN NUMBER OF OUTSTANDING SHARES PURSUANT TO NET
ASSET VALUE FORMULA. The Trust may also reduce the number of outstanding Shares
of the Trust or of any Series or class thereof pursuant to the provisions of
Section 7.3.
SECTION 6.9. SUSPENSION OF RIGHT OF REDEMPTION. The Trust may declare a
suspension of the right of redemption or postpone the date of payment or
redemption for the whole or any part of any period (i) during which the New York
Stock Exchange is closed other than customary weekend and holiday closings, (ii)
during which trading on the New York Stock Exchange is restricted, (iii) during
which an emergency exists as a result of which disposal by the Trust of a Fund
of securities owned by it is not reasonably practicably or it is not reasonable
practicable for the Trust or a Fund fairly to determine the value of its net
assets, of (iv) as the Commission may by order permit for the protection of
security holders of the Trust. Such suspension shall take effect at such time as
the Trust shall specify but not later than the close of business on the business
day next following the declaration of suspension, and thereafter there shall be
no right of redemption or payment on redemption until the Trust shall declare
the suspension at an end, except that the suspension shall terminate in any
event on the first day on which said stock exchange shall have reopened or the
period specified in (ii) or (iii) shall have expired (as to which in the absence
of an official ruling by the Commission, the determination of the Trust shall be
conclusive). In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his application or request for redemption or
receive payment based on the net asset value existing after the termination of
the suspension.
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ARTICLE VII
DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS
SECTION 7.1. NET ASSET VALUE. The net asset value of each outstanding Share
of the Trust or of each Series or Class thereof shall be determined on such days
and at or as of such time or times as the Trustees may determine. Any reference
in this Declaration to the time at which a determination of net asset value is
made shall mean the time as of which the determination is made. The power and
duty to determine net asset value may be delegated by the Trustees from time to
time to the Investment Adviser, the Administrator, the Custodian, the Transfer
Agent or such other Person or Persons as the Trustees may determine. The value
of the assets of the Trust or any Series thereof shall be determined in a manner
authorized by the Trustees. From the total value of said assets, there shall be
deducted all indebtedness, interest, taxes, payable or accrued, including
estimated taxes on unrealized book profits, expenses and management charges
accrued to the appraisal date, amounts determined and declared as a dividend or
distribution and all other items in the nature of liabilities which shall be
deemed appropriate by the Trustees, as incurred by or allocated to the Trust or
any series or Class thereof. The resulting amount, which shall represent the
total net assets of the Trust or Series or Class thereof, shall be divided by
the number of Shares of the Trust or series or Class thereof outstanding at the
time and the quotient so obtained shall be deemed to be the net asset value of
the Shares of the Trust or Series or Class thereof. The Trust may declare a
suspension of the determination of net asset value to the extent permitted by
the 1940 Act. It shall not be a violation of any provision of this Declaration
if Shares are sold, redeemed or repurchased by the Trust at a price other than
one based on net asset value if the net asset value is affected by one or more
errors inadvertently made in the pricing of portfolio securities or other
investments or in accruing or allocation income, expenses, reserves or
liabilities. No provision of this Declaration shall be construed to restrict or
affect the right or ability of the Trust to employ or authorize the use of
pricing services, appraisers or any other means, methods, procedures, or
techniques in valuing the assets or calculating the liabilities of the Trust or
any Series or Class thereof.
SECTION 7.2. DIVIDENDS AND DISTRIBUTIONS. (a) The Trustees may from time to
time distribute ratably among the Shareholders of the Trust or of a Series or
Class thereof such proportion of the net earnings or profits, surplus (including
paid-in surplus), capital (including paid-in capital), or assets of the Trust or
such Series held by the Trustees as they may deem appropriate or desirable. Such
distributions may be made in cash, additional Shares or property (including
without limitation any type of obligations of the Trust of Series or Class
thereof additional Shares of the Trust or Series or Class thereof issuable
hereunder in such manner, at such times, and on such terms as the Trustees may
deem appropriate or desirable. Such distributions may be among the Shareholders
of the Trust or Series or Class thereof at the time of declaring a distribution
or among the Shareholders of the Trust or Series or Class thereof at such other
date or time or dates or times as the Trustees shall determine. The Trustees may
in their discretion determine that, solely for the purposes of such
distributions, Outstanding Shares shall exclude Shares for which orders have
been placed subsequent to a specified time. The Trustees may always retain from
the earnings or profits such amounts as they may deem appropriate or desirable
to pay the expenses and liabilities of the Trust or a Series or Class thereof or
to meet obligations of the Trust or a Series or Class thereof, together with
such amounts as they may deem desirable to use in the conduct of its affairs or
to retain for future requirements or extensions of the business or operations of
the Trust or such Series. The Trust may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans or other distribution
plans as the Trustees may deem appropriate or desirable. The Trustees may in
their discretion determine that an account administration fee or other similar
charge may be deducted directly from the income and other distributions paid on
Shares to a Shareholder's account in any Series or Class.
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(b) The Trustees may prescribe, in their absolute discretion, such bases
and times for determining the amounts for the declaration and payment of
dividends and distributions as they may deem necessary, appropriate or
desirable.
(c) Inasmuch as the computation of net income and gains for federal income
tax purposes may vary from the computation thereof on the books of account, the
above provisions shall be interpreted to give the Trustees full power and
authority in their absolute discretion to distribute for any fiscal year as
dividends and as capital gains distributions, respectively, additional amounts
sufficient to enable the Trust or a Series thereof to avoid or reduce liability.
SECTION 7.3. CONSTANT NET ASSET VALUE; REDUCTION OF OUTSTANDING SHARES. The
Trustees may determine to maintain the net asset value per Share of any Series
or Class at a designated constant amount and in connection therewith may adopt
procedures not inconsistent with the 1940 Act for the continuing declarations of
income attributable to that Series or Class as dividends payable in additional
Shares of that Series or Class or in cash or in any combination thereof and for
the handling of any losses attributable to that Series or Class. Such procedures
may provide that, if, for any reason, the income of any such Series or Class
determined at any time is a negative amount, the Trust may with respect to such
Series or Class (i) offset each Shareholder's pro rata share of such negative
amount from the accrued dividend account of such Shareholder, or (ii) reduce the
number of Outstanding Shares of such Series or Class by reducing the number of
Shares in the account of such Shareholder by that number of full and fractional
Shares which represents the amount of such excess negative income, or (iii)
cause to be recorded on the books of the Trust an asset account in the amount of
such negative income, which account may be reduced by the amount, provided that
the same shall thereupon become the property of the Trust with respect to such
Series or Class and shall not be paid to any Share holder, of dividends declared
thereafter upon the Outstanding Shares of such Series or Class on the day such
negative income is experienced, until such asset account is reduced to zero, or
(iv) combine the methods described in clauses (i), (ii) and (iii) of this
sentence, in order to cause the net asset value per Share of such Series or
Class to remain at a constant amount per Outstanding Share immediately after
such determination and declaration. The Trust may also fail to declare a
dividend out of income for the purpose of causing the net asset value of any
such Share to be increased. The Trustees shall have full discretion to determine
whether any cash or property received shall be treated as income or as principal
and whether any item expense shall be charged to the income or the principal
account, and their determination made in good faith shall be conclusive upon all
Shareholders. In the case of stock dividends or similar distributions received,
the Trustees shall have full discretion to determine, in the light of the
particular circumstances, how much if any of the value thereof shall be treated
as income, the balance, if any, to be treated as principal.
SECTION 7.4. POWER TO MODIFY FOREGOING PROCEDURES. Notwithstanding any
provision contained in this Declaration, the Trustees may prescribe, in their
absolute discretion, such other means, methods, procedures or techniques for
determining the per Share net asset value of a Series or Class thereof or the
income of the Series or Class thereof, or for the declaration and payment of
dividends and distributions on any Series or Class of Shares.
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ARTICLE VIII
DURATION; TERMINATION OF TRUST OR A
SERIES OR CLASS; MERGERS; AMENDMENTS
SECTION 8.1. DURATION. The Trust shall continue without limitation of time
but subject to the provisions of this Article VIII. The death, declination,
resignation, retirement, removal or incapacity of the Trustees, or any one of
them, shall not operate to terminate or annul the Trust or to revoke any
existing agency or delegation of authority pursuant to the terms of this
Declaration or of the By-Laws.
SECTION 8.2. TERMINATION OF THE TRUST OR A SERIES OR A CLASS. (a) The Trust
or any Series or Class thereof may be terminated by: (1) the affirmative vote of
the holders of not less than two-thirds of the Shares outstanding and entitled
to vote at any meeting of Shareholders of the Trust or the appropriate Series or
Class thereof, or by an instrument or instruments in writing without a meeting,
consented to by the holders of two-thirds of the Shares of the Trust or a Series
or Class thereof, provided, however, that, if such termination is recommended by
the Trustees, the vote of a majority of the outstanding voting securities of the
Trust or a Series or Class thereof entitled to vote thereon shall be sufficient
authorization; or (2) by means of an instrument in writing signed by a majority
of the Trustees, to be followed by a written notice to Shareholders stating that
a majority of the Trustees as determined that the continuation of the Trust or a
Series or a Class thereof is not in the best interest of the Trust, such Series
or Class or of their respective Shareholders. Such determination may (but need
not) be based on factors or events adversely affecting the ability of the Trust,
such Series or Class to conduct its business and operations in an economically
viable manner. Such factors and events may include (but are not limited to) the
inability of a Series or Class or the Trust to maintain its assets at an
appropriate size, changes in laws or regulations governing the Series or Class
or the Trust or affecting assets of the type in which such Series or Class or
the Trust invest, or political, social, legal or economic developments or trends
having an adverse impact on the business or operations of such Series or Class
or the Trust invests, or political, social, legal or economic developments or
trends having an adverse impact on the business or operations of such Series or
Class or the Trust. Upon the termination of the Trust or the Series or Class,
(i) The Trust, Series or Class 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, Series
or Class and all of the powers of the Trustees under this Declaration shall
continue until the affairs of the Trust, Series or Class shall have been wound
up, including the power to fulfill or discharge the contracts of the Trust,
Series or Class, collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust Property or assets
allocated or belonging to such Series or Class 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 its liabilities, and
do all other acts appropriate to liquidate its business.
(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 may
distribute the remaining Trust Property or the remaining property of the
terminated Series or Class, in cash or in kind or in any combination thereof,
among the Shareholders of the Trust or the Series or Class according to their
respective rights.
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(b) After termination of the Trust, Series or Class and distribution to the
Shareholders as herein provided, a majority of the Trustees shall execute and
lodge among the records of the Trust and file with the Massachusetts Secretary
of State an instrument in writing setting forth the fact of such termination,
and Trustees shall thereupon be discharged from all further liabilities and
duties with respect to the Trust or the terminated Series or Class, and rights
and interests of all Shareholders of the Trust or the terminated Series or
Class.
SECTION 8.3. MERGER, CONSOLIDATION OR SALE OF ASSETS OF A SERIES. A
particular Series may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of its property, including its good will, upon such terms and
conditions and for such consideration when and as authorized by the Trustees and
without any authorization, vote or consent of the Shareholders; and any such
merger, consolidation, sale, lease or exchange shall be deemed for all purposes
to have been accomplished under and pursuant to the statutes of the Commonwealth
of Massachusetts. The Trustees may also at any time sell and convert into money
all the assets of a particular Series. Upon making provision for the payment of
all outstanding obligations, taxes, and other liabilities, accrued or
contingent, of the particular Series, the Trustees shall distribute the
remaining assets of such Series among the Shareholders of such Series according
to their respective rights. Upon completion of the distribution of the remaining
proceeds or the remaining assets, the Series shall terminate and the Trustees
shall take the action provided in Section 8.2(b) hereof and they shall thereupon
be discharged from all further liabilities and duties with respect to such
Series, and the rights and interests of all Shareholders of the terminated
Series shall thereupon cease.
SECTION 8.4. AMENDMENTS. The execution of an instrument setting forth the
establishment and designation and the relative rights and preferences of any
Series or Class of Shares (or amending, restating or rescinding any such prior
instrument) in accordance with Section 5.5 hereof shall, without any
authorization, consent or vote of the Shareholders, effect an amendment of this
Declaration. Except as otherwise provided in this Section 8.4, if authorized by
a majority of the Trustees and by vote of a majority of the outstanding voting
securities of the Trust the financial interests of which are affected by the
amendment and which are entitled to vote thereon (which securities shall, unless
otherwise provided by the Trustees, vote together on such amendment as a single
class), the Trustees may amend this Declaration by an instrument signed by a
majority of the Trustees then in office. No Shareholder not so affected by any
such amendment shall be entitled to vote thereon. The Trustees may (by such an
instrument) also amend or otherwise supplement this Declaration of Trust,
without any authorization, consent or vote of the Shareholders, to change the
name of the Trust or any Fund or to make such other changes as do not have a
materially adverse effect on the financial interests of Shareholders hereunder
or if they deem it necessary or desirable to conform this Declaration to the
requirements of applicable federal or state laws or regulations or the
requirements of the Internal Revenue Code of 1986, but the Trustees shall not be
liable for failing to do so. Any such amendment or supplemental Declaration of
Trust shall be effective as provided in the instrument containing its terms or,
if there is no provision therein with respect to effectiveness, upon the signing
of such instrument by a majority of the Trustees then in office. Copies of any
amendment or of any supplemental Declaration of Trust shall be filed as
specified in Section 10.2 hereof. Nothing contained in this Declaration shall
permit the amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or to permit assessments upon Shareholders.
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Notwithstanding any other provision hereof, until such time as Shares are
issued and sold, this Declaration may be terminated or amended in any respect by
an instrument signed by a majority of the Trustees then in office.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. USE OF THE WORDS "EATON VANCE". Eaton Vance Corp. (hereinafter
referred to as "EVC"), which owns (either directly or through subsidiaries) all
of the capital shares of the Investment Adviser of the Trust and the Funds (or
of the investment adviser or each of the investment companies referred to in the
last paragraph of Section 2.3), has consented to the use by the Trust and the
Funds of the identifying words "Eaton Vance" in the name of the Trust and in the
name of each Fund. Such consent is conditioned upon the continued employment of
EVC or a subsidiary or affiliate of EVC as Investment Adviser of the Trust and
of each such Fund or as the investment adviser of each of the investment
companies referred to in the last paragraph of Section 2.3. As between the Trust
and itself, EVC shall control the use of the name of the Trust and the name of
any Fund insofar as such name contains the identifying words "Eaton Vance". EVC
may from time to time use the identifying words "Eaton Vance' in other
connections and for other purposes, including, without limitation, in the names
of other investment companies, trusts corporations or businesses which it may
manage, advise, sponsor or own or in which it may have a financial interest. EVC
may require the Trust to cease using the identifying words "Eaton Vance" in the
name of the Trust or any Fund if EVC or a subsidiary or affiliate of EVC ceases
to act as Investment Adviser of the Trust or such Fund or as the investment
adviser of each of the investment companies referred to in the last paragraph of
Section 2.3.
SECTION 9.2. FILING OF COPIES, REFERENCES, HEADINGS AND COUNTERPARTS. The
original or a copy of this instrument, of any amendment hereto and of each
declaration of trust supplemental hereto, shall be kept at the office of the
Trust. A copy of this instrument, of any amendment hereto, and of each
supplemental declaration of trust shall be filed with the Massachusetts
Secretary of State and with 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 a Trustee or an officer of the Trust as to whether or not any
such amendments or supplemental declarations of trust 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 a Trustee or an officer
of the Trust to be a copy of this instrument or of any such amendment hereto or
supplemental declaration of trust.
In this instrument or in any such amendment or supplemental declaration of
trust, 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 supplemental declaration of trust. Headings are
placed herein for convenience of reference only and in case of any conflict, the
text of this instrument, rather than the headings, shall control. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original, but such counterparts shall constitute one instrument. A
restated Declaration, integrating into a single instrument all of the provisions
of the Declaration which are then in effect and operative, may be executed from
time to time by a majority of the Trustees then in office and filed with the
Massachusetts Secretary of State. A restated Declaration shall, upon execution,
be conclusive evidence of all amendments and supplemental declarations contained
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therein and may hereafter be referred to in lieu of the original Declaration and
the various amendments and supplements thereto.
SECTION 9.3. APPLICABLE LAW. The Trust set forth in this instrument 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.
SECTION 9.4. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of legal counsel, that any of such provisions is in
conflict with the 1940 Act, the Internal Revenue Code of 1986 or with other
applicable laws and regulations, the conflicting provision shall be construed in
such manner consistent with such law as may most closely reflect the intention
of the offending provision; provided, however, that such determination shall not
affect an of the remaining provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such determination
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provisions in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned, being a majority of the Trustees of
the Trust, have executed this instrument this 14th day of August, 2000.
/s/ Jessia M. Bibliowicz /s/ Norton H. Reamer
-------------------------------- ------------------------------
Jessica M. Bibliowicz Norton H. Reamer
/s/ Donald R. Dwight /s/ Lynn A. Stout
-------------------------------- ------------------------------
Donald R. Dwight Lynn A. Stout
/s/ James B. Hawkes /s/ Jack L. Treynor
-------------------------------- ------------------------------
James B. Hawkes Jack L. Treynor
/s/ Samuel L. Hayes, III
--------------------------------
Samuel L. Hayes, III
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THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, Massachusetts
Then personally appeared the above named Jessica M. Bibiliowicz, Donald R.
Dwight, James B. Hawkes, Samuel L. Hayes, III, Norton H. Reamer, Lynn A. Stout
and Jack L. Treynor, each of whom acknowledged the foregoing instrument to be
his free act and deed.
Before me,
--------------------------------------------
My commission expire
--------------------
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The names and addresses of all the Trustees of the Trust are as follows:
Jessica M. Bibliowicz Norton H. Reamer
8 Langeloh Court 70 Circuit Road
Rye, NY 10580 Chestnut Hill, MA 02467
Donald R. Dwight Lynn A. Stout
16 Clover Mill Lane 3438 N. Abingdon Street
Lyme, NH 03768 Arlington, VA 22207
James B. Hawkes Jack L. Treynor
11 Quincy Park 504 Via Almar
Beverly, MA 01915 Palos Verdes Estates, CA 90274
Samuel L. Hayes, III
345 Nahatan Street
Westwood, MA 02090
Trust Address:
The Eaton Vance Building
255 State Street
Boston, MA 02109
