Exhibit Q1(a)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
STERLING CAPITAL VARIABLE INSURANCE FUNDS
(formerly the BB&T Variable Insurance Funds)
This AMENDED AND RESTATED DECLARATION OF TRUST made as of
April 29, 2011, hereby amends and restates in its entirety the
Declaration of Trust dated November 8, 2004 (as amended June
2, 2007), by the Trustees hereunder (the "Trustees"), for the
purpose of changing the name of the Trust to "Sterling Capital
Variable Insurance Funds" pursuant to Article IX, Section 7
hereof. This Amended and Restated Agreement and Declaration
of Trust shall take effect upon its filing with the Secretary
of The Commonwealth of Massachusetts.
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
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 "Sterling
Capital 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 0.Xx 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 0.Xx 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 0.Xx 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 or her hand for himself or herself and his or her assigns,
as of this 29th day of April 2011.
/s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chairman
/s/Xxxx X. Kagan_
Xxxx X. Xxxxx
Trustee
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Trustee
/s/Xxxxxxx X. Xxx Xxxx
Xxxxxxx X. Xxx Xxxx
Trustee
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Trustee
/s/Xxxxxxxxx X. XxXxxxxxx
Xxxxxxxxx X. XxXxxxxxx
Trustee
