XXXXXX HEALTH SCIENCES TRUST
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
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This Amended and Restated Agreement and Declaration of Trust made at
Boston, Massachusetts, this 3rd day of April, 1992, by the Trustees
hereunder hereby amends and restates in its entirety the Agreement and
Declaration of Trust dated January 28, 1982, as heretofore amended.
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 business trust 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 "Xxxxxx Health Sciences 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 business trust established
by this Agreement and Declaration of Trust, as amended from time to
time;
(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article IV;
(c) "Shares" means the equal proportionate units of interest into which
the beneficial interest in the Trust shall be divided from time to time
or, if more than one class of Shares is authorized by the Trustees, the
equal proportionate transferable units into which each 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 Amended and Restated
Agreement and Declaration of Trust as amended or restated from time to
time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time; and
(i) The term "class" or "class of Shares" refers to the division of
Shares into two or more classes as provided in Article III, Section I
hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment
primarily in securities and debt instruments.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall at all times be
divided into Shares, without par value, each of which shall, except as
provided in the following sentence, represent an equal proportionate
interest in the Trust with each other Share, none having priority or
preference over another. The Trustees may, without Shareholder
approval, divide the shares 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
determine and 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 class into a greater or lesser
number without thereby changing the proportionate beneficial interest in
the 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 class and
as to the number of Shares of each class held from time to time by each
Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist
of cash or tangible or intangible property or a combination thereof, as
they from time to time authorize.
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 hereof and to have become a party hereto. The
death of a Shareholder during the continuance of the Trust shall not
operate to terminate the same nor entitle the representative of any
deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the rights of
said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the
Shareholders partners. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor except as specifically provided herein
to call upon any shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. A Trustee may be elected either by the Trustees or by the
Shareholders. There shall not be less than three Trustees. The number
of Trustees shall be fixed by the Trustees. Each Trustee elected by the
Trustees or the Shareholders 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. At any meeting called for the
purpose, a Trustee may be removed by vote of two-thirds of the
outstanding Shares.
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 fill vacancies in or add to 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 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 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
Trustee 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;
(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 the extent necessary or appropriate to give effectto the preferences
and special or relative rights and privileges of any classes of Shares, to
allocate assets, liabilities, income and expenses of the Trust to a
particular class of Shares or to apportion the same among two or more
classes or Shares;
(g) To consent to or participate in any plan for thereorganization,
consolidation or merger of any corporationor issuer, any security of which
is or was held in theTrust; to consent to any contract, lease, mortgage,
purchaseor sale of property by such corporation or issuer, and topay calls
or subscriptions with respect to any security heldin 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;
(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 of or all
such obligations;
(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. The Trustees
shall not in any way be bound or limited by any present or future law
or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be
taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (a quorum being present), within or
without Massachusetts, including any meeting held by means of a
conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence in person
at a meeting, or by written consents of a majority of the Trustees then
in office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to be paid
out of the principal or income of the Trust, or partly out of principal
and partly out of income, as they deem fair, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with
the Trust, or in connection with the management thereof, including but
not limited to, the Trustees' 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.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of the Trust shall at all times
be considered as vested in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder Vote, 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 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 investment. 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
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
Voting Powers
Section 1. Subject to the voting powers of one or more classes of
shares as set forth in this Declaration of Trust or in the Bylaws, the
Shareholders shall have power to vote only (i) for the election of
Trustees as provided in Article IV, Section 1, (ii) for the removal of
Trustees as provided in Article IV, Section 1, (iii) with respect to any
Manager as provided in Article IV, Section 6, (iv) with respect to any
termination of this Trust to the extent and as provided in Article IX,
Section 4, (v) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Article IX, Section 7, (vi) 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 (vii) with
respect to such additional matters relating to the Trust as may be
required by this Declaration of Trust, the Bylaws or any registration of
the Trust with the Securities and Exchange Commission (or any successor
agency) 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. On any matter submitted
to a vote of Shareholders, all Shares of the Trust then entitled to vote
shall, except as otherwise provided in the Bylaws, be voted in the
aggregate as a single class without regard to classes of Shares, except
(1) when required by the 1940 Act or when the Trustees shall have
determined that the matter affects one or more classes of Shares
materially differently, Shares shall be voted by individual class; and
(2) when the Trustees have determined that the matter affects only the
interests of one or more classes, then only Shareholders of such classes
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
exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A 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 of any class are issued, the Trustees
may exercise all rights of Shareholders and may take any action required
by law, this Declaration of Trust or the Bylaws to be taken by
Shareholders as to such classes.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all classes may be called
by the Trustees from time to time for the purpose of taking action upon
any matter requiring the vote or authority of the Shareholders of such
class as herein provided or upon any other matter deemed by the Trustees
to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by
mailing such notice at least seven days before such meeting, postage
prepaid, stating the time, place and purpose of the meeting to each
Shareholder entitled to vote at such meeting at the Shareholder's
address as it appears on the records of the Trust. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a
period of 30 days after written application by Shareholders holding at
least 10% of the then outstanding Shares of all classes entitled to vote
at such meeting requesting that a meeting be called for a purpose
requiring action by the Shareholders as provided herein or in the
Bylaws, then Shareholders holding at least 10% of the then outstanding
Shares of all classes entitled to vote at such meeting may call and give
notice of such meeting, and thereupon the meeting shall be held in the
manner provided for herein in case of call thereof by the Trustees.
Quorum and Required Vote
Section 3. Thirty percent of the shares entitled to vote on a
particular matter shall be a quorum for the transaction of business on
that matter at a Shareholders' meeting, except that where this
Declaration of Trust requires that holders of any class shall vote as an
individual class, then thirty percent of the aggregate number of Shares
of that class entitled to vote shall be necessary to constitute a quorum
for the transaction of business by that class. Any lesser number 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 provision of this Declaration of Trust or the
Bylaws, or by the 1940 Act, a majority of the Shares voted shall decide
any questions and a plurality shall elect a Trustee, provided that where
this Declaration of Trust requires that the holders of any class shall
vote as an individual class, then a majority of the Shares of that class
voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that 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 proportion thereof as shall be required by any express
provision of this Declaration of Trust or the Bylaws) 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 Bylaws may include further provisions not inconsistent
with this Declaration of Trust regarding Shareholders' voting powers,
the conduct of meetings and related matters.
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 such income and capital gains,
accrued or realized, as the Trustees may determine, after providing for
actual and accrued expenses and liabilities (including such reserves
as the Trustees may establish) determined in accordance with good accounting
practices. The Trustees shall have full discretion to determine which items
shall be treated as income and which items as capital and their determination
shall be binding upon the Shareholders. Such amounts shall be distributed
pro rata to Shareholders in proportion to the number of Shares 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 the Trust 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 or Shares or a combination thereof as
determined by the Trustees. Any such distribution paid in Shares will be
paid at the net asset value thereof as determined in accordance with the
Bylaws.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of any certificate for
the Shares to be purchased, a proper instrument of transfer and a
request directed to the Trust or a person designated by the Trust that
the Trust purchase such Shares, or in accordance with such other
procedures for redemption as the Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof,
as next determined in accordance with the Bylaws. 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.
Redemptions at the Option of the Trust
Section 3. The Trust shall have the right at its option and at any time
to redeem Shares of any Shareholder at the net asset value thereof as
determined in accordance with the Bylaws: (i) if at such time such
Shareholder owns fewer Shares than, or Shares having an aggregate net
asset value of less than, an amount determined from time to time by the
Trustees; or (ii) to the extent that such Shareholder owns Shares equal
to or in excess of a percentage of the Shares determined from time to
time by the Trustees.
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 or other services and payment for the same by the Trust.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, Manager
or principal underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing
herein contained shall protect any Trustee against any liability to
which he or she would otherwise be subject by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of
the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and
such Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and officers
(including persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any
interest as a shareholder, creditor or otherwise) (hereinafter referred
to as a "Covered Person") against all liabilities and expenses,
including but not limited to amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and counsel fees, reasonably
incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such Covered Person may be or may have been
threatened, while in office or thereafter, by reason of being or having
been such a Covered Person except with respect to any matter as to which
such Covered Person shall have been finally adjudicated in any such
action, suit or other proceeding (a) 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 (b) to be liable to the Trust or its
Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such Covered Person's office. Expenses, including counsel fees so
incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties),
shall be paid from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so
paid to the Trust if it is ultimately determined that indemnification of
such expenses is not authorized under this Article, provided, however,
that either (a) such Covered Person shall have provided appropriate
security for such undertaking, (b) the Trust shall be insured against
losses arising from any such advance payments or (c) either a majority
of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the
matter), or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed
to a full trial type inquiry), that there is reason to believe that such
Covered Person will be found entitled to indemnification under this
Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the
proceeding was brought, that such Covered Person either (a) did not act
in good faith in the reasonable belief that his action was in the best
interests of the Trust or (b) is liable to the Trust or its Shareholders
by reason of wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office,
indemnification shall be provided if (a) approved as in the best
interests of the Trust, after notice that it involves such
indemnification, by at least a majority of the disinterested Trustees
acting on the matter (provided that a majority of the disinterested
Trustees then in office act on the matter) upon a determination, based
upon a review of readily available facts (as opposed to a full trial
type inquiry), that such Covered Person acted in good faith in the
reasonable belief that his action was in the best interests of the Trust
and is not liable to the Trust or its Shareholders by reasons of wilful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office, or (b) there has
been obtained an opinion in writing of independent legal counsel, based
upon a review of readily available facts (as opposed to a full trial
type inquiry), to the effect that such Covered Person appears to have
acted in good faith in the reasonable belief that his or her action was
in the best interests of the Trust and that such indemnification would
not protect such Person against any liability to the Trust to which he
or she would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of his or her office. Any approval pursuant to this Section
shall not prevent the recovery from any Covered Person of any amount
paid to such Covered Person in accordance with this Section as
indemnification if such Covered Person is subsequently adjudicated by a
court of competent jurisdiction not to have acted in good faith in the
reasonable belief that such Covered Person's action was in the best
interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such Covered Person's office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which such Covered Person may
be entitled. As used in this Article VIII, the term "Covered Person"
shall include such person's heirs, executors and administrators and a
"disinterested Trustee" is a Trustee who is not an "interested person"
of the Trust as defined in Section 2(a)(19) of the Investment Company
Act of 1940, as amended (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.
Shareholders
Section 4. In case any Shareholder or former Shareholder shall be held
to be personally liable solely by reason of his or her being or having
been a Shareholder and not because of his or her acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators or other legal representatives or
in the case of a corporation or other entity, its corporate or other
general successor) shall be entitled out of the assets of the Trust to
be held harmless from and indemnified against all loss and expense
arising from such liability.
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 shall look only to the assets of the Trust
for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be
personally liable therefor. Nothing in this Declaration of Trust shall
protect any Trustee against any liability to which such Trustee would
otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give
notice that this Declaration of Trust is on file with the Secretary of
The Commonwealth of Massachusetts and shall recite that the same was
executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as 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 Shareholders
individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be
liable for his or her own wilful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of the
office of Trustee, and for nothing else, and shall not be liable for errors
of judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of Trust, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such
advice. The Trustees shall not be required to give any bond as such, nor
any surety if a bond is required.
Liability of Third Persons Dealing with Trustees
Section 3. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be
made by the Trustees or to see to the application of any payments made
or property transferred to the Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any
time by vote of Shareholders holding at least 66 - 2/3% of the Shares
entitled to vote or by the Trustees by written notice to the
Shareholders. Upon termination, after paying or otherwise providing for
all charges, taxes, expenses and liabilities, whether due or accrued or
anticipated 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, ratably according to the number of Shares
held by the several Shareholders 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
the Trust, 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 of Copies, References, Headings
Section 5. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust where it may
be inspected by any Shareholder. A copy of this instrument and of each
amendment hereto shall be filed by the Trust with the Secretary of The
Commonwealth of Massachusetts and with the Boston City Clerk, as well as
any other governmental office where such filing may from time to time be
required. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such amendments have been
made and as to any matters in connection with the Trust hereunder, and,
with the same effect as if it were the original, may rely on a copy
certified by an officer of the Trust to be a copy of this instrument or
of any such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like "herein", "hereof"
and "hereunder", shall be deemed to refer to this instrument as amended or
affected by any such amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
This instrument may be executed in any number of counterparts each of
which shall be deemed an original.
Applicable Law
Section 6. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and
construed and administered according to the laws of said Commonwealth.
The Trust shall be of the type commonly called a Massachusetts business
trust and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when
authorized so to do by vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment which in the
determination of the Trustees shall affect the holders of one or more
classes of Shares but not the holders of all outstanding classes shall
be authorized by vote of the shareholders holding a majority of the
Shares entitled to vote of each class affected and no vote of
Shareholders of a class not affected shall be required. Amendments
having the purpose of changing the name of the Trust or of supplying any
omission, curing any ambiguity or curing, correcting or supplementing
any defective or inconsistent provision contained herein shall not
require authorization by Shareholder vote.
IN WITNESS WHEREOF, the undersigned, being a majority of the Trustees of
the Trust, have hereunto set their hands and seals in the City of
Boston, Massachusetts for themselves and their assigns, as of the day
and year first above written.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Pounds /s/ Xxxxxx Xxxxxx, III
---------------------------- ----------------------------
Xxxxxxx X. Pounds Xxxxxx Xxxxxx, III
/s/ Xxxx X. Xxxxx /s/ A.J.C. Xxxxx
---------------------------- ----------------------------
Xxxx X. Xxxxx A.J.C. Xxxxx
/s/ Xxxx X. Xxxx /s/ W. Xxxxxxxx Xxxxxxxxx
---------------------------- ----------------------------
Xxxx X. Xxxx W. Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxx /s/ D. Xxxx Xxxxxx, Xx.
---------------------------- ----------------------------
Xxxxxxxx X. Xxxxxx D. Xxxx Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Boston, April 3, 1992
Suffolk, ss.
Then personally appeared each of the above named Trustees of Xxxxxx
Health Sciences Trust acknowledged the foregoing instrument to be their
free act and deed, before me,
Xxxx X. Xxxxxx
----------------------------------
Notary Public
My commission expires: 4/8/94
The address of the Trust is Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000
