AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST BB&T VARIABLE INSURANCE FUNDS
EXHIBIT (a)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST
BB&T VARIABLE INSURANCE FUNDS
This Amended and Restated Declaration of Trust made as of June 2, 2007, hereby amends and
restates in its entirety the Declaration of Trust dated November 8, 2004, 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 and Definitions
Name
Section 1. This Trust shall be known as “BB&T Variable Insurance Funds”, and the trustees of
the Trust, whether named herein or elected in accordance with Article IV (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
Declaration of Trust, as amended from time to time;
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(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 or class of Shares shall be divided from time to
time;
(d) “Shareholder” means a record owner of Shares;
(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 Declaration of Trust as amended or restated
from time to time;
(h) “Bylaws” shall mean the Bylaws of the Trust as amended from time to time;
(i) The term “series” or “series of Shares” refers to the one or more separate
investment portfolios 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 term “class” or “class of Shares” refers to the division of Shares representing
any series into two or more classes as provided in Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment primarily in securities,
debt instruments and other instruments and rights of a financial character 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.
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ARTICLE III
Shares
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in one or more series as the Trustees may,
without Shareholder approval, authorize. Each series shall be preferred over all other series in
respect of the assets specifically allocated to that series within the meaning of the 1940 Act and
shall represent a separate investment portfolio of the Trust. The beneficial interest in each
series shall at all times be divided into Shares, with a par value of $0.00001 or $0.001, as may be
determined by the Trustees, each of which shall, except as provided in the following sentence,
represent an equal proportionate interest in the series with each other Share of the same series,
none having priority or preference over another. The Trustees may, without Shareholder approval,
divide the Shares of any series into two or more classes, Shares of each such class having such
preferences and special or relative rights and privileges (including conversion rights, if any) as
the Trustees may determine or as shall be set forth in the Bylaws. The number of Shares authorized
shall be unlimited. The Trustees may from time to time divide or combine the Shares of any series
or class into a greater or lesser number without thereby changing the proportionate beneficial
interest 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 and class and as
to the number of Shares of each series and 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 or the Bylaws from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares of each series,
together with all income, earnings, profits, and proceeds thereof, including any proceeds derived
from the sale, exchange or liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall irrevocably belong to the
series of Shares with respect to which the same were received by the Trust for all purposes,
subject only to the rights of creditors, and shall be so handled upon the books of account of the
Trust and are herein referred to as “assets of” such series.
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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 Declaration of Trust or the Bylaws. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms of this Declaration of Trust and
the Bylaws 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, not 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
The Trustees
Election
Section l. The number of Trustees shall be as provided by the Bylaws or as fixed from time 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 until he or she retires, resigns, is
removed or dies or until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. Any Trustee may resign
at any time by written instrument signed by such Trustee 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 or her 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.
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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, they may fill vacancies, 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 and 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 depositary or a nominee or
nominees or otherwise;
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(g) To allocate assets, liabilities, income, and expenses of the Trust to a particular
series of Shares or to apportion the same among two or more series, provided that any
liabilities or expenses incurred by a particular series of Shares shall be payable solely
out of the assets of that series; and, to the extent necessary or appropriate to give effect
to the preferences and special or relative rights and privileges of any classes of Shares,
to allocate assets, liabilities, income and expenses of a series to a particular class of
Shares of that series or to apportion the same among two or more classes of Shares of that
series;
(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 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
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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 Act 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 the 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, manager or sub-adviser,
principal underwriter, auditor, counsel, custodian, transfer agent, shareholder servicing agent,
and such other agents or independent contractors and such other expenses and charges as the
Trustees may deem necessary or proper to incur, provided, however, that all expenses, fees,
charges, taxes and liabilities incurred by or arising in connection with a particular series of
Shares, as determined by the Trustees, shall be payable solely out of the assets of that series.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series of Shares and of the Trust shall at all
times be considered as vested in the Trustees.
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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 subadvisers
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’ 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.
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ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if they so determine, distribute to
the Shareholders of each series out of the assets of such series such amounts as the Trustees may
determine. Any such distribution to the Shareholders of a particular series shall be made to said
Shareholders pro rata in proportion to the number of Shares of such series held by each of them,
except to the extent otherwise required or permitted by the preferences and special or relative
rights and privileges of any classes of Shares of that series, and any distribution to the
Shareholders of a particular class of Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by each of them. Such distributions shall be
made in cash, Shares or other property, 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 any redemption charge or fee as the
Trustees may from time to time authorize. 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
Securities and Exchange 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
Securities and Exchange 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.
Redemption 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
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(ii) to the extent that such Shareholder owns Shares of a particular series of Shares equal to
or in excess of a percentage of the outstanding Shares of that series determined from time to time
by the Trustees; or (iii) to the extent that such Shareholder owns Shares of the Trust representing
a percentage equal to or in excess of such percentage of the aggregate number of outstanding Shares
of the Trust or the aggregate net asset value of the Trust determined from time to time by the
Trustees.
Dividends, Distributions, Redemptions, Purchases
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 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 willful 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.
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ARTICLE VIII
Indemnification
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 (a) not to have acted in good faith in the reasonable belief that such Covered Person’s
action was in or not opposed to the best interest of the Trust or (b) to be liable to the Trust or
its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person’s office. 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 any 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 or her action was in or not opposed to the best interests of the Trust
or (b) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
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conduct of his or her office, indemnification shall be provided if (a) approved as in or not
opposed to the best interests of the Trust, after notice that it involved 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 or her action was in or not opposed to
the best interests of the Trust and is not liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of 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 or her action was in the best interests of the Trust and that such
indemnification would not protect such Covered Person against any liability to the Trust to which
he or she would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his or her 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 willful 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 the 1940 Act (or who has been exempted from being an “interested person” by any
rule, regulation or order of the Securities and Exchange Commission) and against whom none 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 representative or, in the
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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
Miscellaneous
Trustees, Officers, 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 willful misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officer or officers shall give notice that this Declaration of Trust is on file
with the Secretary of The Commonwealth of Massachusetts and shall recite that the same was executed
or made by or on behalf of the Trust or by them as Trustee or Trustees or as officer or officers
and not individually and that the obligations of such instrument are not binding upon any of them
or the Shareholders individually but are binding only upon the assets and property of the Trust,
and may contain such further recital as he or she or they may deem appropriate, but the omission
thereof shall not operate to bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
Trustees’ and Officers’ Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees and officers of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee or officer shall be liable for his or her own
willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee or officer, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees or officers 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 and officers shall not be required to give any bond as such, nor
any surety if a bond is required.
Liability of Third Persons Dealing with Trustee
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.
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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 a 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. 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 or
class 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, except to the extent
otherwise required or permitted by the preferences and special or relative rights and privileges of
any classes of Shares of that series, provided that any distribution to the Shareholders of a
particular class of Shares shall be made to such Shareholders pro rata in proportion to the number
of Shares of such class held by each of them.
Filing and 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.
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Amendments
Section 7. All rights granted to the Shareholders under this Declaration of Trust are granted
subject to the reservation of the right to amend this Declaration of Trust as herein provided,
except that no amendment shall repeal the limitations on personal liability of any Shareholder,
Trustee or officer or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder, Trustee or officer involved. Subject to the foregoing, this
Declaration of Trust may be amended at any time by an instrument in writing signed by a majority of
the then Trustees (or by an officer of the Trust pursuant to a vote of a majority of such 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 in the determination of the Trustees shall affect
the holders of one or more series or classes of Shares but not the holders of all outstanding
series and classes shall be authorized by vote of the Shareholders holding a majority of the Shares
entitled to vote of each series and class affected and no vote of Shareholder of a series or class
not affected shall be required. In addition to the foregoing, the provisions of this Declaration of
Trust (whether or not related to the rights of Shareholders) may be amended for any other reason at
any time without the vote or consent of Shareholders, so long as such amendment does not materially
adversely affect the rights of any Shareholder with respect to which such amendment is or purports
to be applicable and so long as such amendment is not in contravention of applicable law, including
the 1940 Act, by an instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to a vote of a majority of such Trustees).
The Resident Agent for this Trust is Corporation Service Company, located at 00 Xxxxx Xxxxxx,
0xx xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000.
The Trustees are located at 000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
The principal office for this Trust is located at 000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000.
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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.
| Chairman | ||||
| Xxxx X. Xxxxx | ||||
| Trustee | ||||
| Xxxxx X. Xxxxxxx | ||||
| Trustee | ||||
| Xxxxxxx X. Xxx Xxxx | ||||
| Trustee | ||||
| Xxxxx X. Xxxxxxx | ||||
| Trustee | ||||
| Xxxxx X. Xxxxxxxxx | ||||
| Trustee |
