AMENDED AND RESTATED
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
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;
(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
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.
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 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.
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
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.
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;
(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 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.
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 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 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 (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
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.
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 (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
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 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, 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.
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.
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.
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
