Exhibit 99.B(1)
TRUSTFUNDS INSTITUTIONAL MANAGED TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST dated the 17th day of October, 1986,
by the Trustees hereunder, and by the holders of Shares of beneficial
interest to be issued hereunder as hereinafter provided.
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.
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 for the pro rata benefit of the holders
from time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as the "TrustFunds Institutional
Managed Trust" and the Trustees shall conduct the business of the Trust under
that name or any other name as they may from time to time determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary association
established by this Agreement and Declaration of Trust, as amended from
time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article IV and then in office;
(c) The term "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 of Shares is authorized by the Trustees, the
equal proportionate transferable units into which each series of Shares
shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(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," and "Majority
Shareholder Vote" (the 67% or 50% requirement of the third sentence of
Section 2(a)(42) of the 1940 Act, whichever may be applicable) shall have
the meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust as amended or restated from time to time; and
(h) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time.
ARTICLE II
Purpose
The purpose of the Trust is to provide investors with one or more
investment portfolios consisting primarily of securities, including debt
instruments or obligations.
ARTICLE III
Shares
Division of Beneficial Interest
Section I. 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 allocated
to that series. The beneficial interest in each series shall at all times be
divided into Shares, without par value, each of which shall represent an
equal proportionate interest in the series with each other Share of the same
series, none having priority or preference over another. Each series shall be
represented by one or more classes of Shares, with each class possessing such
rights (including, notwithstanding any contrary provision herein, voting
rights) as the Trustees may, without shareholder approval, authorize. The
number of Shares authorized shall be unlimited, and the Shares so authorized
may be represented in part by fractional Shares. The
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Trustees may from time to time divide or combine the Shares of any series
into a greater or lesser number without thereby changing the proportionate
beneficial interests in the series.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of the
Trust or its 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 of the Trust, as the case may be,
shall be conclusive as to who are the Shareholders of each series and as to
the number of Shares of each series held from time to time by each
Shareholder.
Investments in the Trust; Assets of the Series
Section 3. The Trustees may accept investments in the Trust from such
persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property
or a combination thereof, as they may 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 recorded upon the books of account of the Trust and are herein referred to
as "assets of" such series. In addition, any assets, income, earnings,
profits, and proceeds thereof, funds, or payments which are not readily
identifiable as belonging to any particular series shall be allocated by the
Trustees between and among one or more of the series in such manner as they,
in their sole discretion, deem fair and equitable. Each such allocation shall
be conclusive and binding upon the Shareholders of all series for all
purposes, and shall be referred to as assets belonging to that series.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust.
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Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only the
rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to
the terms of this Declaration of Trust and to have become a party thereto.
The death of a Shareholder during the continuance of the Trust shall not
operate to terminate the same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but only to the rights of said decent
under this Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole of any part of the Trust property or right to
call for a partition or division of the same or for an accounting, nor shall
the ownership of Shares constitute the Shareholders partners. Neither the
Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholder, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder
may at any time personally agree to pay.
Trustees and Officers as Shareholders
Section 6. Any Trustee, officer or other agent of the Trust may acquire,
own and dispose of Shares of the Trust to the same extent as if he were not a
Trustee, officer or agent; and the Trustees may issue and sell or cause to be
issued and sold Shares to and buy such Shares from any such person of any
firm or company in which he is interested, subject only to the general
limitations herein contained as to the sale and purchase of such Shares; and
all subject to any restrictions which may be contained in the By-Laws.
ARTICLE IV
The Trustees
Election
Section 1. The number of Trustees shall be fixed by the Trustees, except
that these shall be not less than three nor more than fifteen Trustees, each
of whom shall hold office during the lifetime of this Trust or until the
election and qualification of his or her successor, or until he or she sooner
dies, resigns or is removed. The number of Trustees so fixed may be increased
either by the Shareholders or by the Trustees by a vote of a majority of the
Trustees then in office. The number of Trustees so fixed may be decreased
either by the Shareholders or by the Trustees by vote of a majority of the
Trustees then in office, but only to eliminate vacancies existing by reason
of the death, resignation or removal or one or more Trustees. The initial
Trustees, each of whom shall serve until the first meeting of
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Shareholders at which Trustees are elected and until his or her successor is
elected and qualified, or until he or she sooner dies, resigns or is removed,
shall be Xxxxxxx X. Xxxxx and such other persons as the Trustee or Trustees
then in office shall, prior to any sale of Shares pursuant to public
offering, appoint. By vote of the Shareholders holding a majority of the
shares entitled to vote, the Shareholders may remove a Trustee with or
without cause. By vote of a majority of the Trustees then in office, the
Trustees may remove a Trustee for cause. Any Trustee may, but need not, be a
Shareholder.
In case of the declination, death, resignation, retirement, removal,
incapacity, or inability of any of the Trustees, or in case a vacancy shall
exist by reason of an increase in number, or for any other reason, the
remaining Trustees shall fill such vacancy by appointing such other person as
they in their discretion shall see fit consistent with the limitations under
the Investment Company Act of 1940. Such appointment shall be evidenced by a
written instrument signed by a majority of the Trustees in office or by
recording in the records of the Trust, whereupon the appointment shall take
effect. An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of retirement,
resignation or increase in number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of
Trustees. As soon as any Trustee so appointed shall have accepted this
trust, the trust estate shall vest in the new Trustee or Trustees, together
with the continuing Trustees, without any further act or conveyance, and he
shall be deemed a Trustee hereunder. The power of appointment is subject to
the provisions of Section 16(a) of the 1940 Act. In the event that at any
time after the commencement of public sales of Trust Shares less than a
majority of the Trustees then holding office were elected to such office by
the Shareholders, the Trustees or the Trust's President promptly shall call a
meeting of Shareholders for the purpose of electing Trustees. Each Trustee
elected by the Shareholders or by the Trustees shall serve until the election
or qualification of his or her successor, or until he or she sooner dies,
resigns or is removed.
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 By-Laws 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 By-Laws do not
reserve that right to the Shareholders; they may fill vacancies in their
number, including vacancies resulting from increases in their number, and
may elect and remove 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 powers and authority of the Trustees as
the Trustees may determine; they may appoint an advisory board, the members
of which shall not be Trustees and need not be Shareholders; they may employ
one or more investment advisors or managers as provided in Section 7 of this
Article IV; 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; and they may elect and remove such officers
and appoint and terminate such agents as they consider appropriate.
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 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;
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(d) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) 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;
(f) To establish separate and distinct series of shares with separately
defined investment objectives, policies and purposes, and to allocate assets,
liabilities and expenses of the Trust to a particular series of Shares or to
apportion the same among two or more series, provided that any liability or
expense incurred by a particular series of Shares shall be payable solely out
of the assets of that series;
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or
property 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;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(i) 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;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To borrow funds from a bank for temporary or emergency purposes and
not for investment purposes;
(l) 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 or all of such obligations;
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(m) 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; and
(n) 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.
(o) To establish, from time to time, a minimum total investment for
Shareholders, and to require the redemption of the Shares of any Shareholders
whose investment is less than such minimum upon giving notice to such
Shareholder.
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 By-Laws, any action to
be taken by the Trustees may be taken by a majority of the Trustees present at
a meeting of Trustees (if a quorum be 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 communicate with each other simultaneously
and participation by such means shall constitute presence in person at a
meeting, or by written consent of a majority of the Trustees then in office.
Payment of Expenses by the 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, or in
connection with the management thereof, including, but not limited to, the
Trustees'
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compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser or manager, 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 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. Any
general liabilities, expenses, costs, charges or reserves of the Trust which
are not readily identifiable as belonging to any particular series shall be
allocated and charged by the Trustees between or among any one or more of the
series in such manner as the Trustees in their sole discretion deem fair and
equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all series for all purposes. Any creditor of any series may
look only to the assets of that series to satisfy such creditor's debt.
SECTION 5. The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or arrears,
for any and all expenses of the Trust, an amount fixed from time to time by
the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such
charges due from such Shareholder.
Ownership of Assets of the Trust
SECTION 6. 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 7. The Trustees may, at any time and from time to time, contract
with respect to the Trust or any series thereof for exclusive or nonexclusive
advisory and/or management services with SEI Financial Management
Corporation, a Delaware corporation, and/or any other corporation, trust,
association or other organization, every such contract to comply with such
requirements and restrictions as may be set forth in the By-Laws; and any
such contract 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. Any contract for advisory services shall be subject to
such Shareholder approval as is required by the 1940 Act. The Trustees may
also, at any time and
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from time to time, contract with SEI Financial Services Company, a
Pennsylvania corporation, and/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 By-Laws; 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 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 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 contact, 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 businesses 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.
Action by the Trustees
Section 8. The Trustees shall act by majority vote at a meeting duly
called or by unanimous written consent without a meeting or by telephone
consent provided a quorum or Trustees participates in any such telephonic
meeting, unless the 1940 Act requires that a particular action be taken only
at a meeting in person of the Trustees. At any meeting of the Trustees, a
majority of the Trustees shall constitute a quorum. Meetings of the Trustees
may be called orally or in writing by the Chairman of the Trustees, by any
two other Trustees, or by any officer of the Trust. Notice of the time, date
and place of all meetings of the Trustees shall be given by the party calling
the meeting to
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each Trustee by telephone or telegram sent to his home or business address at
least twenty-four hours in advance of the meeting or by written notice mailed
to his home or business address at least seventy-two hours in advance of
the meeting. Notice need not be given to any Trustee who attends the meeting
without objecting to the lack of notice or who executes a written waiver of
notice with respect to the meeting. Subject to the requirements of the 1940
Act, the Trustees by majority vote may delegate to any one or their number
their authority to approve particular matters or take particular actions on
behalf of the Trust.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section 1, (ii)
with respect to any investment adviser as provided in Article IV, Section 7,
(iii) with respect to any termination of the Trust or any series to the
extent and as provided in Article IX, Section 4, (iv) with respect to any
amendment of this Declaration of Trust to the extent and as provided in
Article IX, Section 7, (v) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the
Shareholders, and (vi) with respect to such additional matters relating to
the Trust as may be required by law, by this Declaration of Trust, by the
By-Laws or by any registration of the Trust with the Securities and Exchange
Commission or any state, or as the Trustees may consider necessary or
desirable.
Each whole Share shall be entitled to one vote as to any matter on which
it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provisions of this
Declaration of Trust, on any matter submitted to a vote of Shareholders, all
Shares of the Trust then entitled to vote shall be voted by individual
series, except (1) when required by the 1940 Act, Shares shall be voted in
the aggregate and not by individual series, and (2) when the Trustees have
determined that the matter affects only the interests of one or more series,
then only Shareholders of such series shall be entitled to vote thereon.
There shall be no cumulative voting in the election of Trustees. Shares may
be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the
exercise of the proxy the Trust receives a specific written notice to the
contrary from any one of them. A
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proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of
Trust of the By-Laws to be taken by Shareholders.
Voting Power and Meetings
Section 2. Meetings of Shareholders of the Trust or of any series or
class may be called by the Trustees, or such other person or persons as may
be specified in the By-Laws, and held from time to time for the purpose of
taking action upon any matter requiring the vote or the authority of the
Shareholders of the Trust or any series or class as herein provided or upon
any other matter deemed by the Trustees to be necessary or desirable.
Meetings of Shareholders of the Trust or of any series or class shall be
called by the Trustees or such other person or persons as may be specified in
the By-Laws upon written application requesting that a meeting be called for
a purpose requiring action by the Shareholders as provided herein or in the
By-Laws by Shareholders holding at least 10% of the outstanding Shares of the
Trust if Shareholders of all series are required hereunder to vote in the
aggregate and not by individual series at such meeting, or Shareholders
holding at least 10% of the outstanding shares of a series or class if
Shareholders of such series or class are entitled hereunder to vote by
individual series or class at such meeting. The Shareholders shall be
entitled to at least seven days' written notice of any meeting of the
Shareholders.
Quorum and Required Vote
Section 3. A majority of the Shares entitled to vote shall be a quorum
for the transaction of business at a Shareholders' meeting, except that where
any provision of law or of this Declaration of Trust permits or requires that
holders of any series or class shall vote as a series or class, then a
majority of the aggregate number of Shares of that series or class entitled
to vote shall be necessary to constitute a quorum for the transaction of
business by that series or class. Any lesser number, however, shall be
sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without
the necessity of further notice.
Except when a larger vote is required by any provisions of this
Declaration of Trust or the By-Laws, a majority of the shares voted on any
matter shall decide such matter and a plurality shall elect a Trustee,
provided that where any
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provision of law or of this Declaration of Trust permits or requires that the
holders of any series of class shall vote as a series or class, then a
majority of the Shares of that series or class voted on the matter shall
decide that matter insofar as that series or class is concerned.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or such
larger vote as shall be required by any provision of this Declaration of
Trust or the By-Laws) consent to the action in writing and such written
consents are filed with the records of the meetings of Shareholders. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Additional Provisions
Section 5. The By-Laws may include further provisions for Shareholders'
votes and meetings and related matters.
ARTICLE VI
Distributions, Redemptions, Repurchases
and Determination of Net Asset Value
Distributions
Section 1. The Trustees may, but need not, distribute each year to the
Shareholders of each series such income and gains, accrued or realized, as
the Trustees may determine, after providing for actual and accrued expenses
and liabilities (including such reserves as the Trustees may establish)
determined in accordance with good accounting practices. The Trustees shall
have full discretion to determine which items shall be treated as income and
which items as capital and their determination shall be binding upon the
Shareholders. Distributions of each year's income of each series, if any be
made, may be made in one or more payments, which shall be in Shares, in cash
or otherwise and on a date or dates determined by the Trustees. At any time
and from time to time in their discretion, the Trustees may distribute to the
Shareholders of any one or more series as of a record date or dates
determined by the Trustees, in Shares, in cash or otherwise, all or part of
any gains realized on the sale or disposition of property of the series or
otherwise, or all or part of any other principal of the Trust attributable to
the series. Each distribution pursuant to this Section 1 shall be made
ratably according to the number of Shares of the series or class held by the
several Shareholders on the applicable record date thereof, provided that no
distributions need be made on Shares purchased pursuant to orders received,
or for which payment is made, after such time or times
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as the Trustees may determine. Any such distribution paid in Shares will be
paid at the net asset value thereof as determined in accordance with this
Declaration of Trust.
Redemptions and Repurchases
Section 2. Any holder of Shares of the Trust may by presentation of a
written request, together with his certificates, if any, for such Shares, in
proper form for transfer, at the office of the Trust, the adviser, the
underwriter or the distributors, or at a principal office of a transfer or
Shareholder servicers agent appointed by the Trust (as the Trustees may
determine), redeem his Shares for the net asset value thereof determined and
computed in accordance with the provisions of this Section 2 and the
provisions of Section 5 of Article VI of this Declaration of Trust, less any
redemption charge which the Trustee may establish.
Upon receipt of such written request for redemption of Shares by the
Trust, the adviser, the underwriter or the distributor, or the Trust's
transfer or Shareholder services agent, such Shares shall be redeemed at the
net asset value per share of the particular series next determined after such
Shares are tendered in proper form for transfer to the Trust or determined as
of such other time fixed by the Trustees as may be permitted or required by
the 1940 Act, provided that no such tender shall be required in the case of
Shares for which a certificate or certificates have not been issued, and in
such case such Shares shall be redeemed at the net asset value per share of
the particular series next determined after such demand has been received or
determined at such other time fixed by the Trustees as may be permitted or
required by the 0000 Xxx.
The obligation of the Trust to redeem its Shares of each series as set
forth above in this Section 2 shall be subject to the condition that, during
any time of emergency, as hereinafter defined, such obligation may be
suspended by the Trust by or under authority of the Trustees for such period
or periods during such time of emergency as shall be determined by or under
authority of the Trustees. If there is such a suspension, any Shareholder may
withdraw any demand for redemption and any tender of Shares which has been
received by the Trust during any such period and any tender of Shares the
applicable net asset value of which would but for such suspension be
calculated as of a time during such period. Upon such withdrawal, the Trust
shall return to the Shareholder the certificate therefor, if any. For the
purposes of any such suspension "time of emergency" shall mean, either with
respect to all Shares or any series of Shares, any period during which:
a. the New York Stock Exchange is closed other than for customary
weekend and holiday closings; or
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b. the Trustees or authorized officers of the Trust shall have
determined, in compliance with any applicable rules and regulations or
orders of the Commission, either that trading on the New York Stock
Exchange is restricted, or that an emergency exists as a result of which
(i) disposal by the Trust of securities owned by it is not reasonably
practicable or (ii) it is not reasonably practicable for the Trust fairly
to determine the current value of its net assets; or
c. the suspension or postponement of such obligations is permitted by
order of the Commission.
The trust may also purchase, repurchase or redeem Shares in accordance
with such other methods, upon such other terms and subject to such other
conditions as the Trustees may from time to time authorize 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.
Payment in Kind
Section 3. Subject to any generally applicable limitation imposed by the
Trustees, any payment on redemption, purchase or repurchase by the Trust of
Shares may, if authorized by the Trustees, be made wholly or partly in kind,
instead of in cash. Such payment in kind shall be made by distributing
securities or other property, constituting, in the opinion of the Trustees, a
fair representation of the various types of securities and other property
then held by the series of Shares being redeemed, purchased or repurchased
(but not necessarily involving a portion of each of the Series' holdings) and
taken at their value used in determining the net asset value of the Shares in
respect of which payment is made.
Additional Provisions Relating to Redemptions and Repurchases
Section 4. The completion of redemption, purchase or repurchase of Shares
shall constitute a full discharge of the Trust and the Trustees with respect
to such Shares and the Trustees may require that any certificate or
certificates issued by the Trust to evidence the ownership of such Shares
shall be surrendered to the Trustees for cancellation or notation.
Determination of Net Asset Value
Section 5. The term "net asset value" of the Shares of each series shall
mean: (i) the value of all the assets of such series; (ii) less total
liabilities of such series; (iii) divided by the number of Shares of such
series outstanding, in each case at the time of each determination. The
"number of Shares of such series outstanding" for the purpose of such
computation shall be exclusive of any Shares of such series to be redeemed,
purchased
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or repurchased by the Trust and not then redeemed, purchased or repurchased as
to which the price has been determined, but shall include Shares of such
series presented for redemption, purchase or repurchase by the Trust and not
then redeemed, purchased or repurchased as to which the price has not been
determined and Shares of such series the sale of which has been confirmed.
Any fractions involved in the computation of net asset value per share shall
be adjusted to the nearer cent unless the Trustees shall determine to adjust
such fractions to a fraction of a cent.
The Trustees or any officer, officers or agent of the Trust designated
for the purpose by the Trustees shall determine the net asset value of the
Shares of each series, and the Trustees shall fix the times as of which the
net asset value of the Shares of each series shall be determined and shall
fix the periods during which any such net asset value shall be effective as
to sales, redemptions and repurchases of, and other transactions in, the
Shares of such series, except as such times and periods for any such
transaction may be fixed by other provisions of this Declaration of Trust or
the By-Laws.
In valuing the portfolio investments of any series for determination of
net asset value per Share of such series, securities for which market
quotations are readily available shall be valued at prices which, in the
opinion of the Trustees any officer, officers or agent of the Trust
designated for the purpose by the Trustees, most nearly represent the market
value of such securities, which may, but need not, be the most recent bid
price obtained from one or more of the market makers for such securities;
other securities and assets shall be valued at fair value as determined by or
pursuant to the direction of the Trustees. Notwithstanding the foregoing,
short-term debt obligations, commercial paper, and repurchase agreements may
be, but need not be, valued on the basis of quoted yields for securities of
comparable maturity, quality and type, or on the basis of amortized cost. In
the determination of net asset value of any series, dividends receivable and
accounts receivable for investments sold and for Shares sold shall be stated
at the amounts to be received therefor; and income receivable accrued daily
on bonds and notes owned shall be stated at the amount to be received. Any
other assets shall be stated at fair value as determined by the Trustees or
such officer, officers or agent pursuant to the Trustees' authority, except
that no value shall be assigned to good will, furniture, lists, reports,
statistics or other noncurrent assets other than real estate. Liabilities of
any series for accounts payable, for investments purchased and for Shares
tendered for redemption, purchase or repurchase by the Trust and not then
redeemed, purchased or repurchased as to which the price has been determined
shall be stated at the amounts payable therefor. In determining net asset
value of any series, the person or persons making such determination on
behalf of the Trust may include in liabilities such reserves, estimated
accrued expenses and contingencies as such person or persons may in its,
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his or their best judgment deem fair and reasonable under the circumstances.
Any income dividends and gains distributions payable by the Trust shall be
deducted as of such time or times on the record date therefor as the Trustees
shall determine.
The manner of determining the net assets of any series or of determining
the net asset value of the Shares of any series may from time to time be
altered as necessary or desirable in the judgment of the Trustees to conform
to any other method prescribed or permitted by any applicable law or
regulation or generally accepted accounting practice.
Determinations in accordance with Section 5 made in good faith shall be
binding on all parties concerned.
Redemptions at the Option of the Trust
Section 6. The Trust shall have the right at its option and at any time
to redeem Shares at the net asset value thereof (i) if such Shares are not
held in an account of a customer of SEI Corporation or any of its affiliated
companies or in such other account as the Trustees may determine from time to
time; (ii) if at such time such Shareholder owns fewer Shares than, or Shares
having an aggregate new asset value of less than, an amount determined from
time to time by the Trustees; (iii) 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 (iv) to the extent that such Shareholder owns Shares of the
Trust representing a percentage equal to or in excess of such percentage of
the aggregate number of outstanding Shares of the Trust or the aggregate net
asset value of the Trust determined from time to time by the Trustees.
Dividends, Distributions, Redemptions and Repurchases
Section 7. No dividend or distribution (including, without limitation,
any distribution paid upon termination of the Trust or of any series) with
respect to, nor any redemption or repurchase of, the Shares of any series
shall be effected by the Trust other than from the assets of such series.
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
17
the employment of any Trustee for advisory, management, legal, accounting,
investment banking 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, investment
adviser or manager, principal underwriter or custodian, not 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, Share 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
Subject to the exceptions and limitations contained in this Article,
every person who is, or has been, a Trustee or officer of the Trust shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been a
Trustee or officer and against amounts paid or incurred by him in settlement
thereof.
No indemnification shall be provided hereunder to a Trustee or officer:
(a) against any liability to the Trust or its Shareholders by
reason of a final adjudication by the court or other body before which the
proceeding was brought that he engaged in willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct
of his office;
(b) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the reasonable belief
that his action was in the best interests of the Trust;
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(c) in the event of a settlement or other disposition not involving a
final adjudication (as provided in paragraph (a) or (b)) and resulting in a
payment by a Trustee or officer, unless there has been either a determination
that such Trustee or officer did not engage in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office by the court or other body approving the settlement or
other disposition or a reasonable determination, based on a review of readily
available facts (as opposed to a full trial-type inquiry) that he did not
engage in such conduct:
(i) by a vote of 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
(ii) by written opinion of independent legal counsel.
The rights of indemnification hereinafter provided may be insured against
by policies maintained by the Trust, shall be severable, shall not affect any
other rights to which any Trustee or officer may now or hereafter by
entitled, shall continue as to a person who has ceased to be such Trustee or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel other than Trustees and
officers may be entitled by contract or otherwise under law.
Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in the next to the last
paragraph of this Article shall be advanced by the Trust prior to final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount if it is ultimately determined that he is not
entitled to indemnification under this Article, provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising
out of any such advances; or
(b) 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
determine, based upon a review of the readily available facts (as opposed to
a full trial-type inquiry), that there is reason to believe that the
recipient ultimately will be found entitled to indemnification.
19
As used in this Article, a "Disinterested Trustee" is one (i) who is
not an "interested person" of the Trust (as defined by the 0000 Xxx)
(including anyone who has been exempted from being an "interested person" by
any rule, regulation or order of the Securities and Exchange Commission), and
(ii) 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.
As used in this Article, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened; and the words
"liability" and "expenses" shall include without limitation, attorneys' fees,
costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
In case any Shareholder or former Shareholder shall be held to be
personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs,
executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall
be entitled to be held harmless from and indemnified against all loss and
expense arising from such liability, but only out of the assets of the
particular series of Shares of which he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting with or having
any claim against the Trust or a particular series of Shares shall look only
to the assets of the Trust or the assets of that particular series of Shares
for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trust's officers, employees or
agents, whether past, present or future, shall be personally liable therefor.
Nothing in this Declaration of Trust shall protect any Trustee against any
liability to which such Trustee would otherwise be subject by reason of
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 officers or officer 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 Trustees or Trustee or as officers or
20
officer and not individually and that the obligations of such instrument are
not binding upon any of them or the Shareholders individually but are binding
only upon the assets and property of the Trust, and may contain such further
recital as he or she or they may deem appropriate, but the omission thereof
shall not operate to bind any Trustees or Trustee or officers or officer or
Shareholders or Shareholder individually.
Trustees' Good Faith Action, Expert Advice; No Bond or Surety
Section 2. The exercise by Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee 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, and for nothing else, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustee may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of
Trust, and shall be under no liability for any act or omission in accordance
with such advice or for failing to follow such advice. The Trustees shall not
be required to give any bond as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustees
Section 3. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by
the Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time
by vote of Shareholders holding at least a majority of the Shares entitled to
vote or by the Trustees by written notice to the Shareholders. Any series 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 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.
21
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 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 such amendment, references to this instrument, and the
expression "herein," "hereof," and "hereunder," shall be deemed to refer to
this instrument as amended from time to time. Headings are placed herein for
convenience of reference only, and shall not be taken as 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. 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. This
Declaration of Trust is to be governed by and construed and administered
according to the laws of said Commonwealth.
Amendments
Section 7. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when
authorized to do so by a vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment which shall affect the
holders of one or more series or classes of Shares but not the holders of all
outstanding series or classes shall be authorized by vote of the Shareholders
holding a majority of the Shares entitled to vote of each series or classes
affected and no vote of Shareholders of a series or classes not affected
shall be required. Amendments having the purpose of changing the name of the
Trust or of supplying any omission, curing any ambiguity of curing,
correcting or supplementing any defective or inconsistent provision contained
herein shall not require authorization by Shareholder vote.
22
IN WITNESS WHEREOF, the undersigned being the sole initial Trustee of the
Trust, has executed this document this 16th day of October, 1986.
/s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xx. 00000
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
I, the undersigned authority, hereby certify that the foregoing is a true
and correct copy of the instrument presented to me by Xxxxxxx X. Xxxxx as the
original of such instrument.
WITNESS my hand and official seal, this 16th day of October, 1986.
---------------------------
Notary Public
My commission expires: Jan. 24, 1987
--------------------
Resident Agent:
Xxxxx X. Xxxxxx, Esquire
Xxxxxxxxxxx & Xxxxxxxx
Exchange Place, 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
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