AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
BB&T FUNDS
(formerly the BB&T Mutual Funds Group)
_______________
This Amended and Restated Agreement and Declaration of
Trust made as of June 2, 2007, hereby amends and restates in its
entirety the Agreement and Declaration of Trust dated October 1,
1987 (as amended June 25, 1992, August 18, 1992, and May 17, 1999),
by the Trustees hereunder (the "Trustees").
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the
business of an investment company; and
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Massachusetts voluntary
association with transferable Shares in accordance with the
provisions hereinafter set forth; and
WHEREAS, the Trustees have agreed to amend and restate the
Agreement and Declaration of Trust prior to the sale of Shares
pursuant to Section 7 of Article IX hereof.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets, which they may from
time to time acquire in any manner as Trustees hereunder IN
TRUST to manage and dispose of the same upon the following terms
and conditions as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as "BB&T Funds," and
the Trustees shall conduct the business of the Trust under that
name or any other name as they may from time to
time determine.
Definitions
Section 2. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business
Trust established by this Agreement and Declaration of
Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust
named herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate
transferable units of interest into which the beneficial
interest in the Trust shall be divided from time to time
or, if more than one series or class of Shares is
authorized by the Trustees, the equal proportionate
transferable units into which each series of Shares shall
be divided from time to time;
(d) "Shareholder" means a record owner of Shares of
the Trust or of any series or class of the Trust;
(e) The "1940 Act" refers to the Investment Company
Act of 1940 and the Rules and Regulations thereunder, all
as amended from time to time;
(f) The terms "Affiliated Person", "Assignment",
"Commission", "Interested Person", "Principal Underwriter"
and "Majority Shareholder Vote" (the 67% or 50% requirement
of the third sentence of Section 2(a)(42) of the 1940 Act,
whichever may be applicable) shall have the meanings given
them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement
and Declaration of Trust as amended or restated from time
to time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as
amended from time to time;
(i) The terms "series" or "series of Shares" refers
to one or more separate investment portfolio of the Trust
into which the assets and liabilities of the Trust may be
divided and the Shares of the Trust representing the
beneficial interest of shareholders in such respective
portfolios; and
(j) The terms "class" or "class of Shares" refers to
the Shares representing the division of any series into two
or more classes as provided in Article III Section 1
hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed
investment primarily in securities and debt instruments and to
carry on such other business as the Trustees may from time to
time determine pursuant to their authority under this
Declaration of Trust.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in one
or more series as the Trustees may, without shareholder
approval, authorize. Each series may be divided into two or
more classes. Each series or class shall be preferred over all
other series or classes in respect of the asset allocated to
that series or class. The beneficial interest in each series or
class shall be divided into Shares, with a par value of
$0.00001, each of which shall represent an equal proportionate
interest in the series or class with each other Share of the
same series or class, none having priority or preference over
another. The number of Shares authorized shall be unlimited.
The Trustees may from time to time divide or combine the Shares
into a greater or lesser number without thereby changing the
proportionate beneficial interests in the series or class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on
the books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the transfer
of Shares and similar matters. The record books of the Trust as
kept by the Trust or any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of
each series or class and as to the number of Shares of each
series or class held from time to time by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the
Trust from such persons and on such terms and for such
consideration, which may consist of cash or tangible or
intangible property or a combination thereof, as they from time
to time authorize.
All consideration received by the Trust for the issue or
sale of Shares of each series or class, together with all
income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
belong to the series or class of Shares with respect to which
the same were received by the Trust for all purposes, subject
only to the rights of creditors, and shall be so handled upon
the books of account of the Trust and are herein referred to as
"assets of" such series or class.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities
issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property
giving only the rights provided in this instrument. Every
Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof
and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any
deceased Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but only
to the rights of said decedent under this Trust. Ownership of
Shares shall not entitle the Shareholder to any title in or to
the whole or any part of the Trust property or right to call for
a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor except as specifically provided
herein to call upon any Shareholder for the payment of any sum
of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. The number of Trustees shall be as provided in
the Bylaws or as fixed from to time by the Trustees. The
shareholders may elect Trustees at any meeting of Shareholders
called by the Trustees for that purpose. Each Trustee shall
serve during the continued lifetime of the Trust until he dies,
resigns or is removed, or, if sooner, until the next meeting of
Shareholders called for the purpose of electing Trustees and the
election and qualification of his successor. Any Trustee may
resign at any time by written instrument signed by him and
delivered to any officer of the Trust, to each other Trustee or
to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some
other time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for
any period following his resignation or removal, or any right
to damages on account of such removal.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation,
retirement, removal or incapacity of the Trustees, or any one of
them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this
Declaration of Trust.
Powers
Section 3. Subject to the provisions of this Declaration
of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient
to carry out that responsibility. Without limiting the
foregoing, the Trustees may adopt Bylaws not inconsistent with
this Declaration of Trust providing for the conduct of the
business of the Trust and may amend and repeal them to the
extent that such Bylaws do not reserve that right to the
Shareholders; they may enlarge or reduce their number, may fill
vacancies in their number, including vacancies caused by
enlargement of their number, and may remove Trustees with or
without cause; they may elect and remove, with or without cause,
such officers and appoint and terminate such agents as they
consider appropriate; they may appoint from their own number,
and terminate, any one or more committees consisting of two or
more Trustees, including an executive committee which may, when
the Trustees are not in session, exercise some or all of the
power and authority of the Trustees as the Trustees may
determine; they may employ one or more custodians of the assets
of the Trust and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a
system or systems for the central handling of securities, retain
a transfer agent or a Shareholder servicing agent, or both,
provide for the distribution of Shares by the Trust, through one
or more principal underwriters or otherwise, set record dates
for the determination of Shareholders with respect to various
matters, and in general delegate such authority as they consider
desirable to any officer of the Trust, to any committee of the
Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power
and authority:
(a) To invest and reinvest cash, and to hold cash
uninvested;
(b) To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the
assets of the Trust;
(c) To act as a distributor of shares and as
underwriter of, or broker or dealer in, securities or other
property;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver proxies or powers of
attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power
and discretion with relation to securities or property as
the Trustees shall deem proper;
(e) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities;
(f) To hold any security or property in a form not
indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of
the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(g) To allocate assets, liabilities and expenses of
the Trust to a particular series or class of Shares or to
apportion the same among two or more series or class,
provided that any liabilities or expenses incurred by a
particular series of Shares shall be payable solely out of
the assets of that series or class.
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation
or issuer, any security of which is or was held in the
Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer,
and to pay calls or subscriptions with respect to any
security held in the Trust;
(i) To join with other security holders in acting
through a committee depositary, voting trustee or
otherwise, and in that connection to deposit any security
with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power
and authority with relation to any security (whether or not
so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary
or trustee as the Trustees shall deem proper;
(j) To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any matter in
controversy, including but not limited to claims for taxes;
(k) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(l) To borrow funds;
(m) To endorse or guarantee the payment of any notes
or other obligations of any person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof; and to mortgage and pledge the Trust
property or any part thereof to secure any of or all such
obligations;
(n) To purchase and pay for entirely out of Trust
property such insurance as they may deem necessary or
appropriate for the conduct of the business, including
without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring
the Shareholders, Trustees, officers, employees, agents,
investment advisers or managers, principal underwriters, or
independent contractors of the Trust individually against
all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been
taken or omitted by any such person as Shareholder,
Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor,
including any action taken or omitted that may be
determined to constitute negligence, whether or not the
Trust would have the power to indemnify such person against
such liability;
(o) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and
carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive
and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for
any or all of the Trustees, officers, employees and agents
of the Trust; and
(p) To engage in any other lawful act or activity in
which corporations organized under the Massachusetts
Business Corporation Law may engage. The Trustees shall
not in any way be bound or limited by any present or future
law or custom in regard to investments by trustees.
Except as otherwise provided herein or from time to time in
the Bylaws, any action to be taken by the Trustees may be taken
by a majority of the Trustees present at a meeting of Trustees
(a quorum being present), within or without Massachusetts,
including any meeting held by means of a conference telephone or
other communications equipment by means of which all persons
participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence
in person at a meeting, or by written consents of a majority of
the Trustees then in office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause
to be paid out of the principal or income of the Trust, or
partly out of principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, in connection
with the management thereof, or in connection with the financing
of the sale of Shares, including, but not limited to, the
Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, any investment
adviser, sub-adviser, principal underwriter, auditor, counsel,
custodian, sub-custodian, transfer agent, administrator,
sub-administrator, distributor, shareholder servicing agent, and
such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or
proper to incur, provided, however, that all expenses, fees,
charges, taxes and liabilities incurred or arising in connection
with a particular series or class of Shares as determined by the
Trustees, shall be payable solely out of the assets of that
series or class.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series or
class of Shares and of the Trust shall at all times be
considered as vested in the Trustees.
Advisory, Management and Distribution
Section 6. The Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive advisory and/or
management services with any corporation, trust, association or
other organization (the "Manager"), every such contract to
comply with such requirements and restrictions as may be set
forth in the Bylaws; and any such contract may provide for one
or more Sub-advisers who shall perform all or part of the
obligations of the Manager under such Contract and may contain
such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine,
including, without limitation, authority to determine from time
to time what investments shall be purchased, held, sold or
exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested and to make changes in the Trust's
investments. The Trustees may also, at any time and from time
to time, contract with the Manager or any other corporation,
trust, association or other organization, appointing it
exclusive or nonexclusive distributor or principal underwriter
for the Shares, every such contract to comply with such
requirements and restrictions as may be set forth in the Bylaws;
and any such contract may contain such other terms interpretive
of or in addition to said requirements and restrictions as the
Trustees may determine.
The fact that
(i) any of the Shareholders, Trustees or officers of
the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter
or distributor or agent of or for any corporation, trust,
association, or other organization, or of or for any parent
or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing
or other agency contract may have been or may hereafter be
made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in
the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory or management contract
or principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other agency contract
may have been or may hereafter be made also has an advisory
or management contract, or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing
or other agency contract with one or more other
corporations, trusts, associations, or other organizations,
or has other business or interests shall not affect the
validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting
upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Shareholders shall have such power to vote as is provided
for in, and may hold meetings and take actions pursuant to the
provisions of the Bylaws.
ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently
if they so determine, distribute to the Shareholders of each
series such income and capital gains, accrued or realized, as
the Trustees may determine, after providing for actual and
accrued expenses and liabilities (including such reserves as the
Trustees may establish) determined in accordance with good
accounting practices. The trustees shall have full discretion
to determine which items shall be treated as income and which
items as capital and their determination shall be binding upon
the Shareholders. Distributions of each year's income of each
series or class shall be distributed pro rata to Shareholders in
proportion to the number of Shares of each series or class held
by each of them. Such distributions shall be made in case or
Shares or a combination thereof as determined by the Trustees.
Any such distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance with the Bylaws.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are
offered by any Shareholder for redemption, upon the presentation
of any certificate for the Shares to be purchased, a proper
instrument of transfer and a request directed to the Trust or a
person designated by the Trust that the Trust purchase such
Shares, or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof, as next
determined in accordance with the Bylaws, less such redemption
charge or fee as the Trustees may determine from time to time.
Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the
request is made. The obligation set forth in this Section 2 is
subject to the provision that in the event that any time the New
York Stock Exchange is closed for other than customary weekends
or holidays, or, if permitted by rules of the Commission, during
periods when trading on the Exchange is restricted or during any
emergency which makes it impractical for the Trust to dispose of
its investments or to determine fairly the value of its net
assets, or during any other period permitted by order of the
Commission for the protection of investors, such obligation may
be suspended or postponed by the Trustees. The Trust may also
purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or
repurchase or any contract to purchase or repurchase is made.
The Trust may refuse to honor a request by a Shareholder for
redemption of his Shares for a specified time after such
Shareholder's purchase of such Shares, such specified time, if
any, to be set forth in the Bylaws.
Redemptions at the Option of the Trust
Section 3. The Trust shall have the right at its option
and at any time to redeem Shares of any Shareholder at the net
asset value thereof as determined in accordance with the Bylaws:
(i) if at such time such Shareholder owns fewer Shares than, or
Shares having an aggregate net asset value of less than, an
amount determined from time to time by the Trustees; or (ii) to
the extend that such Shareholder owns Shares of a particular
series or class or Shares equal to or in excess of a percentage
of the outstanding Shares of that series or class determine from
time to time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares of the Trust representing a percentage
equal to or in excess of such percentage of the aggregate number
of outstanding Shares of the Trust or the aggregate net asset
value of the Trust determined from time to time by the Trustees.
Dividends, Distributions, Redemptions and Repurchases
Section 4. No dividend or distribution (including, without
limitation, any distribution paid upon termination of the Trust
or of any series or class) with respect to, nor any redemption
or repurchase of, the Shares of any series or class shall be
effected by the Trust other than from the assets of such series
or class.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to
reasonable compensation from the Trust; they may fix the amount
of their compensation. Nothing herein shall in any way prevent
the employment of any Trustee for advisory, management, legal,
accounting, investment banking, underwriting, brokerage, or
investment dealer or other services and payment for the same by
the Trust.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable
in any event for any neglect or wrongdoing of any officer,
agent, employee, manager or principal underwriter of the Trust,
nor shall any Trustee be responsible for the act or omission of
any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he or she would
otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of his or her office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to
have been executed or done only in or with respect to their or
his or her capacity as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees
and officers (including persons who serve at the Trust's request
as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or
otherwise) (hereinafter referred to as a "Covered Person")
against all liabilities and expenses, including but not limited
to amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and counsel fees reasonably incurred by
any Covered Person in connection with the defense or disposition
of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been
involved as a party or otherwise or with which such Covered
Person may be or may have been threatened, while in office or
thereafter, by reason of being or having been such a Covered
Person except with respect to any matter as to which such
Covered Person shall have been finally adjudicated in any such
action, suit or other proceeding to be liable to the Trust or
its Shareholders by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person's office. Expenses,
including counsel fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), shall be paid from time to
time by the Trust in advance of the final disposition of any
such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Covered Person to repay amounts so paid
to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided,
however, that either (a) such Covered Person shall have provided
appropriate security for such undertaking, (b) the Trust shall
be insured against losses arising from any such advance payments
or (c) either a majority of the disinterested Trustees acting on
the matter (provided that a majority of the disinterested
Trustees then in office act on the matter), or independent legal
counsel in a written opinion, shall have determined, based upon
a review of readily available facts (as opposed to a full trial
type inquiry) that there is reason to believe that such Covered
Person will be found entitled to indemnification under this
Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a
compromise payment, pursuant to a consent decree or otherwise)
without an adjudication by a court, or by any other body before
which the proceeding was brought, that such Covered Person
either (a) did not act in good faith in the reasonable belief
that his action was in the best interests of the Trust or (b) is
liable to the Trust or its Shareholders by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office,
indemnification shall be provided if (a) approved as in the best
interests of the Trust, after notice that it involved such
indemnification, by at least a majority of the disinterested
Trustees acting on the matter (provided that a majority of the
disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts
(as opposed to a full trial type inquiry) that such Covered
Person acted in good faith in the reasonable belief that his
action was in the best interests of the Trust and is not liable
to the Trust or its Shareholders by reasons of wilful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office, or
(b) there has been obtained an opinion in writing of independent
legal counsel, based upon a review of readily available facts
(as opposed to a full trial type inquiry) to the effect that
such Covered Person appears to have acted in good faith in the
reasonable belief that his action was in the best interests of
the Trust and that such indemnification would not protect such
Person against any liability to the Trust to which he would
otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of his office. Any approval pursuant to this
Section shall not prevent the recovery from any Covered Person
of any amount paid to such Covered Person in accordance with
this Section as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction
not to have acted in good faith in the reasonable belief that
such Covered Person's action was in the best interests of the
Trust or to have been liable to the Trust or its Shareholders by
reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Covered Person's office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided
shall not be exclusive of or affect any other rights to which
such Covered Person may be entitled. As used in this Article
VIII, the term "Covered Person" shall include such person's
heirs, executors and administrators and a "disinterested
Trustee" is a Trustee who is not an "interested person" of the
Trust as defined in Section 2 (a)(19) of 1940 Act (or who has
been exempted from being an "interested person" by any rule,
regulation or order of the Commission) and against whom one of
such actions, suits or other proceedings or another action, suit
or other proceeding on the same or similar grounds is then or
has been pending. Nothing contained in this Article shall
affect any rights to indemnification to which personnel of the
Trust, other than Trustees or officers, and other persons may be
entitled by contract or otherwise under law, nor the power of
the Trust to purchase and maintain liability insurance on behalf
of any such person; provided, however, that the Trust shall not
purchase or maintain any such liability insurance in
contravention of applicable law, including without limitation
the 1940 Act.
Shareholders
Section 4. In case any Shareholder or former Shareholder
shall be held to be personally liable solely by reason of his or
her being or having been a Shareholder and not because of his or
her acts or omissions or for some other reason, the Shareholder
or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of
a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such
liability, but only out of the assets of the particular series
of Shares of which he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting
with or having any claim against the Trust or a particular
series of Shares shall look only to the assets of the Trust or
the assets of that particular series of Shares for payment under
such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or
agents, whether past, present or future, shall be personally
liable therefor. Nothing in this Declaration of Trust shall
protect any Trustee against any liability to which such Trustee
would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officer or
officers shall give notice that this Declaration of Trust is on
file with the Secretary of The Commonwealth of Massachusetts and
shall recite that the same was executed or made by or on behalf
of the Trust or by them as Trustee or Trustees or as officers or
officer and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders
individually but are binding only upon the assets and property
of the Trust, and may contain such further recital as he or she
or they may deem appropriate, but the omission thereof shall not
operate to bind any Trustee or Trustees or officer or officers
or Shareholder or Shareholders individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers
and discretions hereunder shall be binding upon everyone
interested. A Trustee shall be liable for his or her own wilful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee,
and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take
advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust, and shall be under
no liability for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees shall
not be required to give any bond as such, nor any surety if a
bond is required.
Liability of Third Persons Dealing with Trustees
Section 3. No person dealing with the Trustees shall be
bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the
Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust
shall continue without limitation of time. The Trust may be
terminated at any time by the vote of Shareholders holding at
least a majority of the Shares of each series entitled to vote
or by the Trustees by written notice to the Shareholders. Any
series or class of Shares may be terminated at any time by vote
of Shareholders holding at least a majority of the Shares of
such series entitled to vote or by the Trustees by written
notice to the Shareholders of such series or class.
Upon termination of the Trust or of any one or more series
of Shares, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or
anticipated, of the Trust or of the particular series as may be
determined by the Trustees, the Trust shall, in accordance with
such procedures as the Trustees consider appropriate, reduce the
remaining assets to distributable form in cash or shares or
other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the series involved, ratably
according to the number of Shares of such series held by the
several Shareholders of such series on the date of termination.
Filing of Copies, References, Headings
Section 5. The original or a copy of this instrument and
of each amendment hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. A copy
of this instrument and of each amendment hereto shall be filed
by the Trust with the Secretary of The Commonwealth of
Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to
time be required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any
such amendments have been made and as to any matters in
connection with the Trust hereunder, and, with the same effect
as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any
such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like
"herein", "hereof" and "hereunder" shall be deemed to refer to
this instrument as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of
which shall be deemed an original.
Applicable Law
Section 6. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to
be governed by and construed and administered according to the
laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust, and without
limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the
then Trustees when authorized to do so by vote of Shareholders
holding a majority of the Shares of each series entitled to
vote, except that an amendment which shall affect the holders of
one or more series or class of Shares but not the holders of all
outstanding series or class shall be authorized by vote of the
Shareholders holding a majority of the Shares entitled to vote
of each series or class affected and no vote of Shareholders of
a series or class not affected shall be required. Amendments
having the purpose of changing the name of the Trust, of
establishing, changing, or eliminating the par value of the
shares or of supplying any omission, curing any ambiguity or
curing, correcting or supplementing any defective or
inconsistent provision contained herein shall not require
authorization by Shareholder vote.
Registered Agent
Section 8. The registered agent for this Trust is CT
Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
Principal Office
Section 9. The principal office for this Trust is located
at 000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
Address of Trustees
Section 10. The Trustees are located at 000 Xxxxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
IN WITNESS WHEREOF, each of the Undersigned has set forth
his hand for himself and his assigns, as of this 2nd day of
June, 2007.
____________________
Xxxxxx X. Xxxxxxx
Chairman
____________________
Xxxx X. Xxxxx
Trustee
____________________
Xxxxx X. Xxxxxxx
Trustee
____________________
Xxxxxxx X. Xxx Xxxx
Trustee
____________________
Xxxxx X. Xxxxxxx
Trustee
____________________
Xxxxx X. Xxxxxxxxx
Trustee
