Sub-Item 77Q1(a)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
INVESCO HIGH INCOME 2024 TARGET TERM FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of Invesco High
Income 2024 Target Term Fund is made the day of October, 2017 by the parties
signatory hereto, as Trustees;
WHEREAS the Trust was formed on February 8, 2017 by its sole Trustee by
the filing of a Certificate of Trust with the office of the Secretary of State
of the State of Delaware pursuant to a Declaration of Trust, dated as of
February 8, 2017 (the "Original Declaration");
WHEREAS, the initial sole Trustee has appointed the Trustees and
resigned and the initial Shareholder has elected the Trustees;
WHEREAS the Trust has been formed to carry on the business of a
closed-end management investment company as defined in the 1940 Act;
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth; and
WHEREAS the Board of Trustees desires to amend and restate the Original
Declaration in the manner hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration is amended and restated in its entirety in
the manner hereinafter set forth;
(ii) all cash, securities and other assets that the Trust may from time
to time acquire in any manner shall be managed and disposed of upon the terms
and conditions hereinafter set forth; and
(iii) this Amended and Restated Agreement and Declaration of Trust and
the Bylaws shall be binding in accordance with their terms on every Trustee, by
virtue of having become a Trustee of the Trust, and on every Shareholder, by
virtue of having become a Shareholder of the Trust, pursuant to the terms of
this Agreement and the Bylaws.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the statutory trust is Invesco High Income
2024 Target Term Fund, and the Trustees may transact the Trust's affairs in
that name or any other name as the Board of Trustees may from time to time
designate. The Trustees may, without Shareholder approval, change the name of
the Trust. Any name change of the Trust shall become effective upon the filing
of a certificate of amendment under the Delaware Act reflecting such change.
Any such action shall have the status of an amendment to this Agreement. In the
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event of any name change, the Trustees shall cause notice to be given to the
affected Shareholders within a reasonable time after the implementation of such
change, which notice will be deemed given if the changed name is reflected in
any shareholder report. The Trust shall constitute a Delaware statutory trust
in accordance with the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided in the Governing Instrument:
(a)"Affiliated Person," "Commission," "Company," "Interested Person,"
"Person," and "Principal Underwriter" shall have the meanings given them
in the 1940 Act, as modified by or interpreted by any applicable order
or orders of the Commission or any rules or regulations adopted or
interpretive releases of the Commission thereunder;
(b)"Agreement" means this Amended and Restated Agreement and Declaration of
Trust, as it may be amended, restated or supplemented, including without
limitation, supplements relating to Preferred Shares, if any, from time
to time;
(c)"Board of Trustees" or "Board" shall mean the governing body of the
Trust, that is comprised of the number of Trustees of the Trust fixed
from time to time pursuant to Article III hereof, having the powers and
duties set forth herein;
(d)"Bylaws" means the Bylaws of the Trust as amended, restated or
supplemented from time to time by the Trustees;
(e)"Certificate of Trust" shall mean the certificate of trust of the Trust
filed on February 8, 2017 with the office of the Secretary of State of
the State of Delaware as required under the Delaware Act, as such
certificate may be amended or restated from time to time;
(f)"class" or "class of Shares" refers to the division of Shares into two
or more classes as provided in Section 2.1;
(g)"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder;
(h)"Covered Person" means a person who is or was a Trustee, officer,
employee or agent of the Trust, or is or was serving at the request of
the Trustees as a director, trustee, partner, officer, employee or agent
of another foreign or domestic corporation, trust, partnership, joint
venture or other enterprise;
(i)"Delaware Act" refers to the Delaware Statutory Trust Act, 12 Del. C.
(S) 3801 et seq., as such Act may be amended from time to time;
(j)"Governing Instrument" means collectively, this Agreement, the Bylaws,
and any instrument or resolution establishing Preferred Shares, and all
written committee and sub-committee charters adopted by the Trustees,
and any amendments or modifications thereto;
(k)"Majority Shareholder Vote" means the vote of "a majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of the Trust
with each class of
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Shares voting together as a single class, except to the extent the 1940
Act or the Governing Instrument requires the separate vote of one or
more classes of Shares, in which case the applicable proportion of such
classes of Shares voting as a separate class, as the case may be, will
be required;
(l)"Majority Trustee Vote" means the vote of a majority of the Trustees
then in office;
(m)"1933 Act" means the Securities Act of 1933, as amended from time to
time, and the rules promulgated thereunder;
(n)"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, and the rules promulgated thereunder;
(o)"Record Owner" means, as of any particular time, a record owner of
Shares of the Trust shown on the books of the Trust or the Trust's
transfer agent as then issued and outstanding at such time;
(p)"Registration Statement" means a registration statement of the Trust
relating to Shares filed with the Commission under the 1933 Act and/or
the 1940 Act, and all amendments to such registration statement, as in
effect from time to time and shall include any prospectus or statement
of additional information forming a part thereof. The "effective date"
of a Registration Statement shall be the date on which such Registration
Statement (and any amendments thereto) is declared effective by the
Commission, or becomes effective pursuant to the 1933 Act and/or the
1940 Act;
(q)"series" or "series of Shares" refers to the designation of Shares into
one or more series as provided in Section 2.1;
(r)"Shareholder" means, as of any particular time, an owner of Shares,
whether beneficially or of record, of the Trust;
(s)"Shares" means the transferable units of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time
and includes fractions of Shares as well as whole Shares. All references
to Shares shall be deemed to be Shares of any or all series or classes
as the context may require;
(t)"Trust" means Invesco High Income 2024 Target Term Fund, the Delaware
statutory trust formed under the Original Declaration, as amended and
restated by this Agreement, and by filing of the Certificate of Trust
with the office of the Secretary of State of the State of Delaware and
governed by this Agreement, as such instruments may be further amended,
restated or supplemented from time to time;
(u)"Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the
Trust, or by the Trustees on behalf of the Trust; and
(v)"Trustees" means the natural persons who have signed this Agreement as
trustees, and all other natural persons who may from time to time be duly
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appointed as Trustee in accordance with the provisions of Section 3.4,
or elected as Trustee by the Shareholders, in each case so long as they
shall continue to serve as trustees of the Trust in accordance with the
terms hereof and reference herein to a Trustee or to the Trustees shall
refer to such natural persons in their capacity as Trustees hereunder.
In this Agreement or in any amended, restated or supplemented Agreement,
references to this Agreement, and all expressions like "herein," "hereof," and
"hereunder," shall be deemed to refer to this Agreement as amended, restated or
supplemented. All expressions like "his," "he," and "him," shall be deemed to
include the feminine and neuter, as well as masculine, genders.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate and
carry on the business of a closed-end management investment company registered
under the 1940 Act investing primarily in securities and other financial
instruments or property, and to carry on such other business as the Trustees
may from time to time determine pursuant to their authority under this
Agreement.
ARTICLE II
SHARES OF BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest.
(a)The Trustees may, without Shareholder approval, authorize the creation
and issuance of one or more classes of Shares (which classes may be
designated as one or more series), with Shares of each such class or
series having such par value (or no par value) and such preferences,
voting powers, terms of redemption, if any, and special or relative
rights or privileges (including conversion rights, if any) as the
Trustees may determine. Subject to applicable law, the Trustees may,
without Shareholder approval, authorize the Trust to issue subscription
or other rights representing interests in Shares to existing
Shareholders or other persons subject to such terms and conditions as
the Trustees may determine. The number of Shares of each class or series
authorized shall be unlimited, and, unless otherwise provided in the
Governing Instrument, the Shares so authorized may be represented in
part by fractional Shares. The Trustees may without Shareholder approval
from time to time divide or combine the Shares of any class or series
into a greater or lesser number without thereby changing the
proportionate beneficial interest in the class or series. All Shares
issued hereunder, including without limitation, Shares issued in
connection with a dividend or other distribution in Shares or a split or
reverse split of shares, when issued on the terms determined by the
Trustees, shall be fully paid and nonassessable.
(b)The Shares shall initially be designated as one class, a class of an
unlimited number of common Shares, no par value (the "Common Shares"),
having the powers, preferences, rights, qualifications, limitations and
restrictions described below. The Trustees, without shareholder
approval, may also, from time to time, issue a class of an unlimited
number of preferred Shares (the "Preferred Shares"), having such par
value (or no par value), powers, preferences, rights, qualifications,
limitations and restrictions as shall be set forth in a written
instrument or resolution or resolutions adopted by the Trustees.
Following the
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issuance of Preferred Shares, when no Preferred Shares or series of
Preferred Shares remain outstanding, the Trustees may adopt a resolution
eliminating such Preferred Shares or Preferred Shares of the applicable
series, subject to the right of the Trustees to issue Preferred Shares
or Preferred Shares of a series pursuant to a future resolution or
resolutions. To the extent that the Trustees authorize and issue
Preferred Shares, they are hereby authorized and empowered to amend,
restate or supplement this Agreement as they deem necessary or
appropriate, including to comply with the requirements of the 1940 Act
or requirements imposed by the rating agencies or other Persons, all
without the approval of Shareholders.
(c)Shareholders shall have no power to vote on any matter except matters on
which a vote of Shareholders is required by the 1940 Act or the
Governing Instrument.
(d)Subject to any Board resolution establishing and designating a class of
Shares, Shareholders shall have no preemptive or other right to
subscribe for new or additional authorized, but unissued Shares or other
securities issued by the Trust.
(e)Subject to the rights of the holders of Preferred Shares, if any,
dividends or other distributions, when, as and if declared by the Board,
shall be shared equally by the holders of Common Shares on a share for
share basis. Subject to the rights of the holders of Preferred Shares,
if any, in the event of the dissolution of the Trust, the holders of the
Common Shares shall be entitled to receive pro rata the net
distributable assets of the Trust.
(f)Any Trustee, officer or other agent of the Trust, and any organization
in which any such Person has an economic or other interest, may acquire,
own, hold and dispose of Shares in the Trust, whether such Shares are
authorized but unissued, or already outstanding, to the same extent as
if such Person were not a Trustee, officer or other agent of the Trust;
and the Trust may issue and sell and may purchase such Shares from any
such Person or any such organization, subject to the limitations,
restrictions or other provisions applicable to the sale or purchase of
such shares herein, the 1940 Act and other applicable law.
Section 2.2 Other Securities. The Trustees may, subject to the requirements
of the 1940 Act and the Governing Instrument, authorize the creation and
issuance of such other securities of the Trust as they determine to be
necessary, desirable or appropriate, having such terms, rights, preferences,
privileges, limitations and restrictions as the Trustees see fit, including
debt securities or other securities senior to any Shares or other securities of
the Trust. The Trustees are hereby authorized and empowered to amend, restate
or supplement this Agreement as they deem necessary or appropriate in
connection with the creation and issuance of any such securities without
approval of Shareholders. The Trustees are also authorized to take such actions
and retain such Persons as they see fit to offer and sell such securities.
Section 2.3 Personal Liability of Shareholders. No Shareholder of the Trust
shall be personally liable for the debts, liabilities, obligations and expenses
incurred by, contracted for, or otherwise existing with respect to, the Trust.
Neither the Trust nor the Trustees, nor any officer, employee, or agent of the
Trust shall have any power to bind personally any Shareholder or to call upon
any Shareholder for the payment of any sum of money or assessment whatsoever
other than (i) such as the Shareholder may at any time personally agree to pay
by way of
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subscription for any Shares or otherwise, or (ii) any indemnification payment
owed to the Trust by the Shareholder pursuant to Section 8.5. The Shareholders
shall be entitled, to the fullest extent permitted by applicable law, to the
same limitation of personal liability as is extended under the Delaware General
Corporation Law to stockholders of private corporations for profit.
Section 2.4 Derivative Actions. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder or Shareholders may bring a
derivative action on behalf of the Trust only if the following conditions are
met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon the
Board of Trustees to bring the subject action unless an effort to cause the
Board of Trustees to bring such an action is not likely to succeed. For
purposes of this Section 2.4, a demand on the Board of Trustees shall be deemed
not likely to succeed and therefore excused if a majority of the Board of
Trustees, or a majority of any committee established to consider the merits of
such action, is composed of Trustees who are not "independent trustees" (as
such term is defined in the Delaware Act);
(b) Unless a demand is not required under Section 2.4(a), Shareholders
eligible to bring such derivative action under the Delaware Act who hold at
least a majority of the outstanding Shares of the Trust shall join in the
demand for the Board of Trustees to commence such action; and
(c) Unless a demand is not required under Section 2.4(a), the Board of
Trustees must be afforded a reasonable amount of time to consider such
Shareholder request and to investigate the basis of such claim. The Board of
Trustees shall be entitled to retain counsel or other advisors in considering
the merits of the demand and may require an undertaking by the Shareholders
making such demand to reimburse the Trust for the fees and expense of any such
counsel or other advisors and other out of pocket expenses of the Trust, in the
event that the Board of Trustees determines not to bring such action. The Trust
is hereby permitted to redeem or repurchase Shares of any Shareholder liable to
the Trust under this Section 2.4(c) at a value determined by the Board of
Trustees in accordance with the 1940 Act and other applicable law, and to set
off against and retain any distributions otherwise payable to any Shareholder
liable to the Trust under this Section 2.4(c), in payment of amounts due
hereunder.
For purposes of this Section 2.4, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to
create a committee with a majority of Trustees who are "independent trustees"
(as such term in defined in the Delaware Act).
Section 2.5 Assent to Agreement. Every Shareholder, by virtue of having
purchased a Share, shall be bound by the terms of the Governing Instrument. The
death, incapacity, dissolution, termination, or bankruptcy of a Shareholder
during the continuance of the Trust shall not operate to terminate the Trust
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 rights of said deceased, incapacitated, dissolved, terminated or
bankrupt Shareholder under the Governing Instrument. 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 as
partners. Ownership of Shares shall not make the Shareholders third party
beneficiaries of any contract entered into by the Trust.
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Section 2.6 Disclosure of Holding. The Shareholders or holders of other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct or indirect ownership of Shares or
other securities of the Trust as the Trustees deem to be (i) in the best
interests of the Trust or (ii) necessary to comply with the provisions of the
Code, the 1940 Act or other applicable laws or regulations, or to comply with
the requirements of any other taxing or regulatory authority or stock exchange
on which the Shares are listed for trading.
ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust.
(a)The Trustees shall have exclusive and absolute control over the Trust
Property and over the business of the Trust to the same extent as if the
Trustees were the sole owners of the Trust Property and business in
their own right, but with such powers of delegation as may be permitted
by this Agreement.
(b)The Trustees shall have power to conduct the business of the Trust and
carry on its operations in any and all of its branches and maintain
offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, in
any and all commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any and all foreign
jurisdictions and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order to
promote the interests of the Trust although such things are not herein
specifically mentioned. Any determination as to what is in the interests
of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Agreement, the presumption shall be in
favor of a grant of power to the Trustees.
(c)The enumeration of any specific power in this Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees
may be exercised without order of or resort to any court or other
authority.
Section 3.2 Number of Trustees. The Board shall consist of such number of
Trustees as shall be fixed from time to time by a majority of the Trustees;
provided, however, that the number of Trustees shall in no event be less than
two (2) nor more than fifteen (15); and provided further that the number of
Trustees shall be increased automatically to such number as is required to
effectuate Section 3.4(b). The natural persons who have executed this Agreement
shall be the Trustees as of the date hereof.
Section 3.3 Classes of Trustees; Terms of Office of Trustees.
(a)The Board of Trustees shall be divided into three classes. The number of
Trustees in each class, and the individual Trustees assigned to each
class, shall be determined by resolution of the Board of Trustees.
(b)The terms of office for each class of Trustees shall be determined as
follows:
(1)The term of office of the first class shall expire on the date of the
first annual meeting of Shareholders, or special meeting in lieu
thereof at which Trustees are elected, following the date hereof;
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(2)The term of office of the second class shall expire on the date of
the second annual meeting of Shareholders or special meeting in lieu
thereof at which Trustees are elected, following the date hereof;
(3)The term of office of the third class shall expire on the date of the
third annual meeting of Shareholders or special meeting in lieu
thereof at which Trustees are elected, following the date hereof; and
(4)Upon expiration of the term of office of each class as set forth
above, the number of Trustees in such class, as determined by the
Board of Trustees, shall be elected to succeed the Trustees whose
terms of office expire for a term expiring on the date of the third
annual meeting of Shareholders, or special meeting in lieu thereof at
which Trustees are elected, following such expiration. The term of
any Trustee standing for re-election who fails to receive sufficient
votes to be elected to office due to a lack of quorum or a failure of
such Trustee or any successor Trustee to such Trustee to receive the
required Shareholder vote set forth in Section 3.4 shall continue for
successive one year terms until such Trustee is duly elected, at
which time such Trustee shall serve the remainder of the term of
office for the class to which such Trustee was elected, or until a
successor Trustee to such Trustee is duly elected and shall have
qualified.
(c)Each Trustee elected shall hold office until his or her successor shall
have been elected at a meeting of Shareholders called for the purpose of
electing Trustees and shall have qualified, except that:
(1)Any Trustee may resign as trustee or may retire by written instrument
signed by such Trustee and delivered to the other Trustees, which
shall take effect upon such delivery or upon such later date as is
specified therein;
(2)Any Trustee may be removed at any time, with or without cause, by
written instrument signed by at least 75% of the number of Trustees
prior to such removal, specifying the date when such removal shall
become effective;
(3)Any Trustee who has died, become physically or mentally incapacitated
by reason of disease or otherwise, or is otherwise unable to serve,
may be retired by written instrument signed by a majority of the
other Trustees, specifying the date of his retirement; and
(4)A Trustee shall be retired in accordance with the terms of any
retirement policy adopted by the Trustees and in effect from time to
time.
Section 3.4 Election, Vacancies and Appointment of Trustees.
(a)Except as set forth in Section 3.4(b), Trustees shall be elected by the
affirmative vote of a majority of the outstanding Shares of the Trust
present in person or by proxy and entitled to vote at an annual meeting
of Shareholders (or special meeting in lieu thereof at which Trustees
are elected) at which a quorum is present.
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(b)At any time that Preferred Shares are issued and outstanding:
(1)Two (2) Trustees shall at all times have been elected by the holders
of Preferred Shares, voting as a separate class, or in the event of a
vacancy of a Trustee so elected, appointed by the Board for such
purpose in accordance with the terms of the Governing Instrument; and
(2)The two Trustees to be elected solely by the holders of Preferred
Shares shall be elected by the affirmative vote of a majority of the
outstanding Preferred Shares present in person or by proxy and
entitled to vote at an annual meeting of Shareholders (or special
meeting in lieu thereof at which Trustees are elected) at which a
quorum is present, voting as a separate class, and, subject to
Section 3.4(b)(3) below, the remaining Trustees shall be elected by
the Common Shares and Preferred Shares voting together as provided in
Section 3.4(a) above.
(3)Notwithstanding the foregoing, the Preferred Shareholders voting as a
separate class shall elect at least a majority of the Trustees, and
the number of Trustees shall be fixed automatically to such increased
number that is the smallest number that, when added to the two
Trustees elected exclusively by the holders of Preferred Shares,
would constitute a majority of the Board of Trustees as so increased,
during any period that holders of Preferred Shares are entitled to
elect a majority of the Trustees of the Trust pursuant to the
designations and powers, preferences and rights, and the
qualifications, limitations and restrictions of the Preferred Shares
as set forth by the Trustees in accordance with this Agreement (a
"Voting Period"). Upon termination of a Voting Period, the voting
rights described in this subparagraph 3.4(b)(3) shall cease and the
terms of the additional Trustees elected pursuant to this
Section 3.4(b)(3) shall immediately terminate; subject always,
however, to the revesting of such voting rights upon the further
occurrence of any of the events described in this
subparagraph 3.4(b)(3).
(c)In case of the declination to serve, death, resignation, retirement or
removal of a Trustee, or a Trustee is otherwise unable to serve, or an
increase in the size of the Board, a vacancy shall occur. Whenever a
vacancy in the Board of Trustees shall occur, until such vacancy is
filled, the other Trustees shall have all the powers hereunder and the
determination of the other Trustees of such vacancy shall be conclusive.
In the case of any vacancy, the remaining Trustees may fill such vacancy
by appointing such other person as they in their discretion shall see
fit, or may leave such vacancy unfilled or may reduce the size of the
Board to not less than two (2) Trustees. A Trustee appointed to fill any
such vacancy shall serve for the remainder of the term commensurate with
the class to which the person is appointed. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees
in office or by resolution of the Board of Trustees, duly adopted, which
shall be recorded in the minutes of a meeting of the Trustees, whereupon
the appointment shall take effect.
(d)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 removal of a Trustee, or an increase in the size of the
Board effective at a later
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date, provided that said appointment shall become effective only at the
time or after the expected vacancy occurs.
Section 3.5 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall fewer
than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided.
Section 3.6 Effect of Death, Resignation, etc. of a Trustee. The declination
to serve, death, resignation, retirement, removal, incapacity, or inability of
the Trustees, or any one of them, shall not operate to terminate the Trust or
to revoke any existing agency created pursuant to the terms of this Agreement.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in
office, regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Agreement.
Section 3.7 Ownership of Assets of the Trust. The assets of the Trust shall
be held separate and apart from any assets now or hereafter held in any
capacity other than as Trustee hereunder by the Trustees or any successor
Trustees. Legal title in all of the assets of the Trust and the right to
conduct any business shall at all times be considered to be held by or in the
name of the Trust, except that the Trustees may cause legal title to any Trust
Property to be held by the Trustees or in the name of any other Person as
nominee on behalf of the Trust. The right, title and interest of the Trustees
in the Trust Property shall vest automatically in each Person who may hereafter
become a Trustee. Upon the resignation, retirement, removal, declination to
serve, incapacity, or death of a Trustee, he or she shall automatically cease
to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered. No creditor of any Trustee shall have any right to obtain
possession, or otherwise exercise legal or equitable remedies with respect to,
any Trust Property with respect to any claim against, or obligation of, such
Trustee in its individual capacity and not related to the Trust. No Shareholder
shall be deemed to have a severable ownership in any individual asset of the
Trust, or any right of partition or possession thereof, but each Shareholder
shall have, except as otherwise provided for herein, a proportionate undivided
beneficial interest in the Trust. The Shares shall be personal property giving
only the rights specifically set forth in this Agreement or the Delaware Act.
Section 3.8 Legal Standard. The Trustees shall be subject to the same
fiduciary duties to which the directors of a Delaware corporation would be
subject if the Trust were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the Trustees were directors of
such Delaware corporation. Without limiting the generality of the foregoing,
all actions and omissions of the Trustees shall be evaluated under the doctrine
commonly referred to as the "business judgment rule," as defined and developed
under Delaware law, to the same extent that the same actions or omissions of
directors of a Delaware corporation in a substantially similar circumstance
would be evaluated under such doctrine. Except to the extent required by
applicable law or expressly stated herein, (a) no Trustee or Trust officer
shall have any fiduciary duty or other legal duty or obligation to the Trust,
the Shareholders or any other Person, and (b) the Trust shall have no fiduciary
duty or other legal duty or obligation to the Shareholders or any other Person
except the Trustees. Unless otherwise expressly provided herein or required by
federal law including the 1940 Act, the
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Trustees shall act in their sole discretion and may take any action or exercise
any power without any vote or consent of the Shareholders.
Section 3.9 Other Business Interests. The Trustees shall devote to the
affairs of the Trust such time as may be necessary for the proper performance
of their duties hereunder, but neither the Trustees nor the officers,
directors, shareholders, partners or employees of the Trustees, if any, shall
be expected to devote their full time to the performance of such duties. The
Trustees, or any Affiliated Person, shareholder, officer, director, partner or
employee thereof, or any Person owning a legal or beneficial interest therein,
may engage in, or possess an interest in, any business or venture other than
the Trust, of any nature and description, independently or with or for the
account of others. None of the Trust or any Shareholder shall have the right to
participate or share in such other business or venture or any profit or
compensation derived therefrom.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. Subject to the provisions of this Agreement, the
business of the Trust shall be managed by the Trustees, and the Trustees shall
have all powers necessary or convenient to carry out that responsibility
including the power to engage in securities transactions of all kinds on behalf
of the Trust. The Trustees in all instances shall act as principals, and are
and shall be free from the control of the Shareholders. The Trustees shall have
full power and authority to do any and all acts and to make and execute any and
all contracts and instruments that they may consider necessary or appropriate
in connection with the management of the Trust.
Without limiting the foregoing and subject to any applicable limitation
in the Governing Instrument or applicable law, the Trustees shall have power
and authority:
(a)To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited
by any present or future law or custom in regard to investments by
Trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate,
write options on, distribute and otherwise deal with and lease any or
all of the assets of the Trust;
(b)To operate as, and to carry on the business of, an investment company,
and to exercise all the powers necessary and appropriate to the conduct
of such operations;
(c)To borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation or engagement of any other
Person and to lend Trust Property;
(d)To provide for the distribution of Shares either through a principal
underwriter in the manner hereafter provided for or by the Trust itself,
or both, or otherwise pursuant to an underwriting agreement of any kind;
(e)To adopt Bylaws not inconsistent with this Agreement providing for the
conduct of the business of the Trust and to amend and repeal them all
without a vote of
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the Shareholders; such Bylaws shall be deemed incorporated and included
in the Governing Instrument;
(f)To elect and remove such officers and appoint and terminate such agents
as they consider appropriate;
(g)To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other domestic or
foreign entities as custodians of any assets of the Trust subject to any
conditions set forth in the Governing Instrument;
(h)To retain one or more transfer agents and shareholder servicing agents;
(i)To set record dates in the manner provided herein or in the Bylaws;
(j)To delegate such authority as they consider desirable to any officers of
the Trust and to any investment adviser, manager, administrator,
custodian, underwriter or other agent or independent contractor;
(k)To sell or exchange any or all of the assets of the Trust;
(l)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 and 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
Trustee shall deem proper;
(m)To exercise powers and rights of subscription or otherwise that in any
manner arise out of ownership of securities;
(n)To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form; or
either in the name of the Trust or a custodian or a nominee or nominees,
subject in either case to proper safeguards according to the usual
practice of Delaware statutory trusts or investment companies;
(o)To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, with respect to
any security which is held in the Trust; to consent to any contract,
lease, mortgage, purchase, or sale of property by such corporation or
concern, and to pay calls or subscriptions with respect to any security
held in the Trust;
(p)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;
(q)To declare and pay dividends and make distributions of income and of
capital gains and capital to Shareholders in the manner hereinafter
provided;
(r)To repurchase Shares from time to time as permitted by applicable law,
upon such terms and conditions as the Trustees shall establish;
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(s)To establish one or more committees or sub-committees, to delegate any
of the powers of the Trustees to said committees or sub-committees and
to adopt a written charter for one or more of such committees or
sub-committees governing its membership, duties and operations and any
other characteristics as the Trustees may deem proper, each of which
committees and sub-committees may consist of less than the whole number
of Trustees then in office, and may be empowered to act for and bind the
Trustees and the Trust as if the acts of such committee or sub-committee
were the acts of all the Trustees then in office;
(t)To interpret the investment policies, practices or limitations of the
Trust;
(u)To establish a registered office and have a registered agent in the
State of Delaware;
(v)To enter into joint ventures, general or limited partnerships, limited
liability companies, and any other combinations and associations;
(w)Subject to the 1940 Act, to engage in any other lawful act or activity
in which a statutory trust organized under the Delaware Act may engage;
and
(x)In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary,
suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers.
The foregoing clauses of Section 4.1 shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees.
Any action by one or more of the Trustees in their capacity as such hereunder
shall be deemed an action on behalf of the Trust, and not an action in an
individual capacity.
The Trustees shall not be limited to investing in obligations maturing before
the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make any
inquiry concerning the authority of the Trustees, or to see to the application
of any payments made or property transferred to the Trustees or upon their
order.
Section 4.2 Issuance and Repurchase of Shares. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, and otherwise deal in Shares and, subject to the
provisions set forth in Articles II and VII hereof, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust.
Section 4.3 Action by the Trustees. Except as otherwise set forth herein,
the Board of Trustees or any committee or sub-committee thereof shall act by
majority vote of those present at a meeting duly called as set forth in the
Bylaws at which a quorum required by the Bylaws is present. Any action that may
be taken by the Board of Trustees or any committee or sub-
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committee thereof by majority vote at a meeting duly called and at which a
quorum required by the Bylaws is present, may also be taken by written consent
of at least seventy-five percent (75%) of the Trustees or members of the
committee or sub-committee, as the case may be, without a meeting, provided
that the writing or writings are filed with the minutes of proceedings of the
Board or committee or sub-committee. Written consents or waivers of the
Trustees may be executed in one or more counterparts. Any written consent or
waiver may be provided and delivered to the Trust by any means by which notice
may be given to a Trustee. Subject to the requirements of the Governing
Instrument and the 1940 Act, the Trustees by Majority Trustee Vote may delegate
to any Trustee or Trustees or committee or sub-committee of Trustees, officer
or officers of the Trust or any agent of the Trust authority to approve
particular matters or take particular actions on behalf of the Trust; provided
that if an action of the Trustees requires a vote greater than a Majority
Trustee Vote, such greater vote shall be required to delegate such action to
any Trustee or Trustees or committee or sub-committee of Trustees.
Section 4.4 Principal Transactions. Subject to Article IX, the Trustees may,
on behalf of the Trust, buy any securities from or sell any securities to, or
lend any assets of the Trust to, any Trustee or officer of the Trust or any
firm of which any such Trustee or officer is a member acting as principal, or
have any such dealings with any investment adviser, underwriter, or transfer
agent for the Trust or with any Affiliated Person of such Person; and the Trust
may employ any such Person, or firm or Company in which such Person is an
Affiliated Person, as broker, legal counsel, registrar, investment adviser,
underwriter, administrator, transfer agent, dividend disbursing agent,
custodian, or in any capacity upon customary terms, subject in all cases to
applicable laws, rules, and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are authorized to
pay or cause to be paid out of the principal or income of the Trust, or partly
out of the principal and partly out of income, 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 and manager, administrator,
principal underwriter, auditors, 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.
Section 4.6 Trustee Compensation. 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, administrative, legal, accounting, investment
banking, underwriting, brokerage, or investment dealer or other services and
the payment for the same by the Trust.
Section 4.7 Independent Trustee. A Trustee who is an "independent trustee,"
as that term is defined in the Delaware Act, shall be deemed to be independent
and disinterested for all purposes when making any determinations or taking any
action as a Trustee.
Section 4.8 Determinations by Trustees. The Trustees may make any
determinations they deem necessary with respect to the provisions of this
Agreement, including the following matters: the amount of the assets,
obligations, liabilities and expenses of the Trust or any class; the amount of
the net income of the Trust or any class from dividends, capital gains,
interest or other sources for any period and the amount of assets at any time
legally available for the payment of dividends or distributions; which items
are to be treated as income and which as capital or principal; the amount,
purpose, time of creation, increase or decrease, alteration or
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cancellation of any reserves or charges and the propriety thereof (whether or
not any obligation or liability for which such reserves or charges were created
shall have been paid or discharged); the market value, or any other price to be
applied in determining the market value, or the fair value, of any security or
other asset owned or held by the Trust or any class; the number of Shares of
the Trust or any class issued or issuable; and the net asset value per Share.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser.
(a)The Trustees may in their discretion, from time to time, enter into an
investment advisory or management contract or contracts with respect to
the Trust whereby the other party or parties to such contract or
contracts shall undertake to furnish the Trustees with such management,
investment advisory, statistical and research facilities and services
and such other facilities and services, if any, and all upon such terms
and conditions, as the Trustees may in their discretion determine.
(b)The Trustees may authorize the investment adviser to employ, from time
to time, one or more sub-advisers to perform such of the acts and
services of the investment adviser, and upon such terms and conditions,
as may be agreed upon among the Trustees, the investment adviser and
sub-adviser. Any references in this Agreement to the investment adviser
shall be deemed to include such sub-advisers, unless the context
otherwise requires.
Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator,
custodian, and any other service providers they deem to be in the best interest
of the Trust.
Section 5.3 Parties to Contract. Any contract of the character described in
Sections 5.1 and 5.2 may be entered into with any corporation, firm,
partnership, trust, association or other legal entity, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, member, employee or agent or hold any other similar office with
respect to such other party to the contract.
Section 5.4 Miscellaneous.
(a)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 company or of or for any parent or affiliate of any company,
with which an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing, custodian or other agency contract may have been or may
hereafter be made, or that any such company, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or that
(ii) any company with which an advisory or administration contract or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have been
or may hereafter be made also has an advisory or administration
contract, or principal underwriter's or distributor's contract, or
transfer,
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shareholder servicing, custodian or other agency contract with one or
more other companies, 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.
(b)The authority of the Trustees hereunder to authorize the Trust to enter
into contracts or other agreements or arrangements shall include the
authority of the Trustees to modify, amend, waive any provision of,
supplement, assign all or a portion of, novate, or terminate such
contracts, agreements or arrangements. The enumeration of any specific
contracts in this Article V shall in no way be deemed to limit the power
and authority of the Trustees as otherwise set forth in this Agreement
to authorize the Trust to employ, contract with or make payments to such
Persons as the Trustees may deem desirable for the transaction of the
business of the Trust.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers.
(a)The Shareholders shall have power to vote only to:
(1)Elect Trustees, provided that a meeting of Shareholders has been
called for that purpose;
(2)Approve transactions described in Section 6.2 and Article IX of this
Agreement;
(3)Approve any amendment to Section 3.3 to declassify the Board, to this
Article VI or Article IX or, to the extent required by Section 6.2,
to Section 8.4; and
(4)Approve such additional matters as may be required by the 1940 Act,
the Governing Instrument or any stock exchange on which the Shares
are listed for trading, or as the Trustees, in their sole discretion,
shall determine.
(b)Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, or by
the Governing Instrument that may be taken by Shareholders.
(c)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.
(d)Except as otherwise provided in the Governing Instrument, on any matter
submitted to a vote of the Shareholders, all Shares shall be voted
together as a single class, except when required by applicable law,
Section 3.4(b) or when the Trustees have determined that the matter
affects the interests of one or more (but not all) classes or affects
one or more classes differently, then the
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Shareholders of each such affected class shall be entitled to vote
separately thereon.
(e)Shareholders shall not be entitled to cumulative voting in the election
of Trustees or on any other matter.
(f)Except as otherwise provided in the Governing Instrument, an affirmative
Majority Shareholder Vote shall be required to approve any matter
requiring a vote of the Shareholders.
(g)Only Record Owners shall have the power to cast a vote at a meeting of
Shareholders subject to the voting provisions set forth in the Governing
Instrument. Beneficial owners of Shares who are not Record Owners shall
not be entitled to cast a vote at a meeting of Shareholders but shall be
entitled to provide voting instructions to corresponding Record Owners,
subject to any limitations imposed by applicable law and stock exchanges
on which the Shares are listed for trading.
Section 6.2 Additional Voting Powers and Voting Requirements for Certain
Actions.
(a)Notwithstanding any other provision of this Agreement, the Shareholders
shall have power to vote to approve any amendment to Section 8.4 of this
Agreement approved by the Board of Trustees that would have the effect
of reducing the indemnification provided thereby to Shareholders or
former Shareholders, and any such action shall require the affirmative
vote or consent of Shareholders owning at least seventy-five percent
(75%) of the outstanding Shares.
(b)Notwithstanding any other provision of this Agreement, any amendment to
Section 3.3 to declassify the Board or to this Article VI or Article IX
of this Agreement shall require the affirmative vote or consent of the
Board of Trustees followed by the affirmative vote or consent of
Shareholders owning at least seventy-five percent (75%) of the
outstanding Shares, unless such amendment has been previously approved,
adopted or authorized by the affirmative vote of at least two thirds
(66 2/3%) of the Board of Trustees, in which case an affirmative
Majority Shareholder Vote shall be required.
(c)The voting requirements set forth in this Section 6.2 shall be in
addition to, and not in lieu of, any vote or consent of the Shareholders
otherwise required by applicable law (including, without limitation, any
separate vote by class that may be required by the 0000 Xxx) or by the
Governing Instrument.
(d)Any additional matter not expressly requiring a vote of Shareholders on
which the Trustees determine the Shareholders shall have power to vote
shall require the affirmative vote or consent of Shareholders owning at
least seventy-five percent (75%) of the outstanding Shares, unless such
matter has been previously approved, adopted or authorized by the
affirmative vote of at least two-thirds (66 2/3%) of the Board of
Trustees, in which case an affirmative Majority Shareholder Vote shall
be required.
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ARTICLE VII
DISTRIBUTIONS AND REPURCHASES
Section 7.1 Distributions. The Trustees may from time to time declare and
pay dividends and make other distributions with respect to any Shares or class
thereof, which may be from surplus, income, capital gains or capital or
distributions in kind of the assets of the Trust. Subject to the rights of the
holders of Preferred Shares, if any, the amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees, although the
Trustees pursuant to Section 4.1(j) may delegate the authority to set record,
declaration, payment and ex-dividend dates, determine the amount of dividends
and distributions and pay such dividends and distributions. Dividends and other
distributions may be paid pursuant to a standing resolution adopted once or
more often as the Trustees determine. The Trustees shall have the power and
authority to amend, correct or change the amount of any declared dividend or
distribution from time to time until such dividend or distribution has been
paid to Shareholders. All dividends and other distributions on Shares or a
class thereof shall be distributed pro rata to the Record Owners of such class,
as the case may be, in proportion to the number of Shares or Shares of such
class they held on the record date established for such payment. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
distribution payment plans, or similar plans as the Trustees deem appropriate.
Section 7.2 Repurchase of Shares With Shareholder Consent.
(a) Subject to the Governing Instrument, the Trust may repurchase Shares
on the open market or such Shares as are tendered by any Record Owner for
repurchase pursuant to a repurchase offer or tender offer, if any, made by the
Trust periodically or from time to time, upon the presentation by the Record
Owner of a proper instrument of transfer together with a request directed to
the Trust, its transfer agent or other duly authorized agent, that the Trust
repurchase such Shares, or in accordance with such other procedures for
repurchase as the Board of Trustees may from time to time authorize; and the
Trust will pay therefor a price that meets the requirements of Section 23 of
the 1940 Act, and the rules and regulations adopted thereunder, and that is in
accordance with the terms of such repurchase offer, tender offer, the Governing
Instrument and other applicable law.
(b) The repurchase price may in any case or cases be paid wholly or
partly in kind if the Board of Trustees determines that such payment is
advisable in the interest of the Trust. Subject to the foregoing, the fair
value, selection and quantity of securities or other property of the Trust so
paid or delivered as all or part of the repurchase price shall be determined by
or under authority of the Board of Trustees. Subject to applicable law, the
Trust shall not be liable for any delay of any corporation or other Person in
transferring securities or other property selected for delivery as all or part
of any payment in kind.
Section 7.3 Repurchase of Shares Without Shareholder Consent. Subject to the
Governing Instrument, the Trust shall have the right at its option and at any
time (and without Shareholder approval), subject to the 1940 Act and other
applicable law, to repurchase Shares of any Shareholder at a price that meets
the requirements of Section 23 of the 1940 Act, and the rules and regulations
adopted thereunder, and that is in accordance with the terms of the Governing
Instrument and other applicable law: (a) if at such time, such Shareholder owns
Shares having an aggregate net asset value of less than an amount determined
from time to time by the Trustees; or (b) to the extent that such Shareholder
owns Shares in an amount less
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than, equal to or in excess of a percentage or certain number of the Shares
determined from time to time by the Trustees.
Section 7.4 Transfer of Shares. Shares shall be transferable in accordance
with the provisions of the Bylaws.
Section 7.5 Redemptions. Unless otherwise provided in the rights of any
series of Preferred Shares, the Shares of the Trust are not redeemable at the
option of the holders thereof.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer of the Trust, when
acting in such capacity, shall not be personally liable to any person for any
act, omission or obligation of the Trust or any Trustee or officer of the
Trust; provided, however, that nothing contained herein shall protect any
Trustee or officer against any liability to the Trust or to Shareholders to
which the Trustee or officer 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 with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person shall
be indemnified by the Trust to the fullest extent permitted by the Delaware
Act, the Bylaws and other applicable law.
Section 8.3 Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Covered Person in connection with any proceeding in
which such Covered Person becomes involved by virtue of such Covered Person's
actions, or omissions to act, in its capacity or former capacity with the
Trust, whether or not the Trust would have the power to indemnify such Covered
Person against such liability.
Section 8.4 Indemnification of Shareholders. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable solely by
reason of his being or having been a Shareholder of the Trust and not because
of his acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his heirs, executors, administrators or other legal
representatives, or, in the case of a corporation or other entity, its
corporate or general successor) shall be entitled, out of the Trust's assets,
to be held harmless from and indemnified against all loss and expense arising
from such liability in accordance with the Bylaws and applicable law. The
Trust, on its own behalf, shall upon request by the Shareholder, assume the
defense of any such claim made against the Shareholder for any act or
obligation of the Trust.
Section 8.5 Indemnification of the Trust. Except to the extent expressly set
forth in the Governing Instrument, each Shareholder will be liable to the Trust
for, and indemnify and hold harmless the Trust (and any subsidiaries or
affiliates thereof) from and against, all costs, expenses, penalties, fines or
other amounts, including without limitation, reasonable attorneys' and other
professional fees, whether third party or internal, arising from any action
against the Trust brought, initiated or joined by such Shareholder in which
such Shareholder is not the prevailing party, and shall pay such amounts on
demand, together with interest on such
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amounts, which interest will accrue at the lesser of the Trust's highest
marginal borrowing rate, per annum compounded, and the maximum amount permitted
by law, from the date such costs or the like are incurred until the receipt of
payment. The Trust is hereby permitted to redeem or repurchase Shares of any
Shareholder liable to the Trust under this Section 8.5 at a value determined by
the Board of Trustees in accordance with the 1940 Act and other applicable law,
and to set off against and retain any distributions otherwise payable to any
Shareholder liable to the Trust under this Section 8.5, in payment of amounts
due hereunder.
ARTICLE IX
CERTAIN TRANSACTIONS
Section 9.1 Vote Required. Notwithstanding any other provision of this
Agreement to the contrary and subject to the exceptions provided in this
Article IX, each of the transactions described in this Article IX shall require
the approval of the Board of Trustees followed by the affirmative vote of the
holders of not less than 75% of the outstanding Shares unless such transaction
has been previously approved by the affirmative vote of at least two-thirds
(66 2/3%) of the Board of Trustees, in which case an affirmative Majority
Shareholder Vote shall be required. Such affirmative vote shall be in addition
to the vote or consent of Shareholders otherwise required by law or by the
terms of any class of Preferred Shares, whether now or hereafter authorized, or
any agreement between the Trust and any national securities exchange.
Section 9.2 Dissolution of the Trust or Termination of a Class.
(a)Unless earlier dissolved or unless the term is extended, in each case as
provided in this Section 9.2(a), the Trust shall continue its operations
in the ordinary course until no later than the close of business on
December 1, 2024, provided that the Trustees may take such steps prior
to December 1, 2024 as they deem appropriate in anticipation of ceasing
operations in the ordinary course on such date, including any actions
permitted by Section 9.2(b). Notwithstanding the foregoing, (i) the
Trust may be dissolved at any time prior to the close of business on
December 1, 2024 or (ii) the term of the Trust may be extended beyond
December 1, 2024 for one period that in no event may exceed six months,
by action of the Trustees and upon provision of at least sixty (60) days
prior written notice to affected Shareholders, without a vote of the
Shareholders of the Trust. In addition, the Trust may be dissolved by
the affirmative vote of the Shareholders entitled to vote of at least
sixty-six and two-thirds percent (66 2/3%) of the outstanding Common
Shares, unless dissolution has been previously approved, adopted or
authorized by the affirmative vote of at least two-thirds of the total
number of Trustees fixed in accordance with this Agreement or the
Bylaws, in which case the affirmative vote of the holders of at least a
majority of the outstanding Common Shares shall be required, provided
however that if there are then outstanding Preferred Shares, such vote
with respect to dissolution of the Trust shall be by the affirmative
vote of the shareholders entitled to vote of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding Common Shares and
Preferred Shares voting as a single class, unless such action has
previously been approved, adopted or authorized by the affirmative vote
of two-thirds of the Trustees, in which case the affirmative vote of the
holders of at least a majority of the outstanding Common Shares and
Preferred Shares voting as a single class shall be required.
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(b)Upon dissolution of the Trust, the Trust shall carry on no business
except for the purpose of winding up its affairs, and all powers of the
Trustees under this Agreement shall continue until such affairs have
been wound up. Without limiting the foregoing, the Trustees shall (in
accordance with Section 3808 of the Delaware Act) have the power to:
(1)Fulfill or discharge the contracts of the Trust;
(2)Collect its assets;
(3)Sell, convey, assign, exchange, merge where the Trust is not the
survivor, transfer or otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons at public or private
sale for consideration which may consist in whole or in part in cash,
securities or other property of any kind;
(4)Pay or make reasonable provision (including through the use of a
liquidating trust) to pay all claims and obligations of the Trust,
including all contingent, conditional or unmatured claims and
obligations known to the Trust, and all claims and obligations which
are known to the Trust, but for which the identity of the claimant is
unknown, and claims and obligations that have not been made known to
the Trust or that have not arisen but that, based on the facts known
to the Trust, are likely to arise or to become known to the Trust
within 10 years after the date of dissolution; and
(5)Do all other acts appropriate to liquidate its business.
(c)If there are sufficient assets held with respect to the Trust, such
claims and obligations shall be paid in full and any such provisions for
payment shall be made in full. If there are insufficient assets held
with respect to the Trust, such claims and obligations shall be paid or
provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefor. Any remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to the Trust
shall be distributed to the Record Owners of the Trust ratably according
to the number of Shares of the Trust held of record by the several
Record Owners on the date for such dissolution distribution, subject to
any then existing preferential rights of Shares.
(d)On dissolution of the Trust, following completion of winding up of its
business, any one (1) Trustee shall execute, and cause to be filed, a
certificate of cancellation, with the office of the Secretary of State
of the State of Delaware in accordance with the provisions of
Section 3810 of the Delaware Act, whereupon the Trust shall terminate
and the Trustees and the Trust shall be discharged from all further
liabilities and duties hereunder with respect thereto. The Trustees
shall not be personally liable to the claimants of the dissolved Trust
by reason of the Trustees' actions in winding up the Trust's affairs if
the Trustees complied with Section 3808(e) of the Delaware Act.
(e)Each class hereafter created shall have perpetual existence unless
terminated upon:
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(1)The vote of the Board of Trustees; or
(2)The occurrence of a termination event pursuant to any Board
resolution establishing and designating such class.
Section 9.3 Merger or Consolidation; Conversion; Reorganization.
(a)Merger or Consolidation.
(1)Pursuant to an agreement of merger or consolidation, the Board of
Trustees may cause the Trust or any of its subsidiaries to merge or
consolidate with or into one or more statutory trusts or "other
business entities" (as defined in Section 3801 of the Delaware Act)
formed or organized or existing under the laws of the State of
Delaware or any other state of the United States or any foreign
country or other foreign jurisdiction. Any such merger or
consolidation shall require approval by vote of the Board of Trustees
followed by approval of the Shareholders as set forth in Section 9.1.
(2)By reference to Section 3815(f) of the Delaware Act, any agreement of
merger or consolidation approved in accordance with this
Section 9.3(a) may, without a separate Shareholder vote, unless
required by the 1940 Act or the requirements of any stock exchange on
which Shares are listed for trading, effect any amendment to the
Governing Instrument or effect the adoption of a new governing
instrument if the Trust is the surviving or resulting statutory trust
in the merger or consolidation, which amendment or new governing
instrument shall be effective at the effective time or date of the
merger or consolidation.
(3)If the Trust is to be the surviving or resulting statutory trust, any
one (1) Trustee shall execute, and cause to be filed, a certificate
of merger or consolidation in accordance with Section 3815 of the
Delaware Act.
(b)Conversion.
(1)The Board of Trustees may cause:
(A) The Trust to convert to an "other business entity" (as defined
in Section 3801 of the Delaware Act) formed or organized under the
laws of the State of Delaware as permitted pursuant to Section 3821
of the Delaware Act;
(B) The Shares of the Trust to be converted into beneficial
interests in another statutory trust; or
(C) The Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law.
(2)Any such statutory conversion, Share conversion or Share exchange
shall require approval by vote of the Board of Trustees followed by
the approval of the Shareholders of the Trust as set forth in
Section 9.1.
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(c)Reorganization.
(1)The Board of Trustees may cause the Trust to sell, convey and
transfer all or substantially all of the assets of the Trust ("sale
of Trust assets") to another trust, statutory trust, partnership,
limited partnership, limited liability company, corporation or other
association organized under the laws of any state, or to one or more
separate series thereof, in exchange for cash, shares or other
securities, with such sale, conveyance and transfer either (a) being
made subject to, or with the assumption by the transferee of, the
liabilities associated with the Trust, or (b) not being made subject
to, or not with the assumption of, such liabilities.
(2)Any such sale, conveyance and transfer shall require approval by vote
of the Board of Trustees followed by the approval of the Shareholders
of the Trust as set forth in Section 9.1.
(3)Following such sale of Trust assets, the Board of Trustees shall
distribute such cash, shares or other securities ratably among the
Record Owners of the Trust (giving due effect to the differences
among the various classes).
(4)If all of the assets of the Trust have been so sold, conveyed and
transferred, the Trust shall be dissolved.
Section 9.4 Reclassification of the Trust. The Board of Trustees may cause
the Trust to be converted from a "closed-end company" to an "open-end company"
(as those terms are defined, respectively, in Sections 5(a)(2) and 5(a)(1) of
the 1940 Act). Such reclassification of the Trust shall require approval by
vote of the Board of Trustees followed by the approval of Shareholders as set
forth in Section 9.1.
Section 9.5 Principal Shareholder Transactions.
(a)Notwithstanding any other provision of this Agreement and subject to the
exceptions provided in Section 9.5(c), the types of transactions
described in sub-paragraphs (1) through (3) below shall require approval
by vote of the Board of Trustees and the Shareholders of the Trust as
set forth in Section 9.1 when a Principal Shareholder (as defined in
Section 9.5(b)) is a party to the transaction.
(1)The issuance of any securities of the Trust or any of its
subsidiaries to any Principal Shareholder for cash (other than
pursuant to any dividend reinvestment plan).
(2)The sale, lease or exchange of all or any substantial part of the
assets of the Trust or any of its subsidiaries to any Principal
Shareholder (except assets having an aggregate fair market value of
less than two percent (2%) of the total assets of the Trust or any of
its subsidiaries, aggregating for the purpose of such computation all
assets sold, leased or exchanged in any series of similar
transactions within a twelve-month period).
(3)The sale, lease, or exchange to the Trust or any subsidiary thereof,
in exchange for securities of the Trust or any of its subsidiaries,
of any assets of any Principal Shareholder (except assets having an
aggregate fair
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market value of less than two percent (2%) of the total assets of the
Trust or any of its subsidiaries, aggregating for the purpose of such
computation, all assets sold, leased or exchanged in any series of
similar transactions within a twelve-month period).
(b)For purposes of this Section 9.5, the term "Principal Shareholder" shall
mean any Person or group (within the meaning of Rule 13d-5 under the
Securities Exchange Act of 1934, as amended (the "1934 Act")), that is
the beneficial owner, directly or indirectly, of five percent (5%) or
more of the Shares of the Trust and shall include any affiliate or
associate, as such terms are defined in clause (2) below, of a Principal
Shareholder, but shall not include the investment adviser of the Trust
or any affiliated person of the investment adviser of the Trust. For the
purposes of this Section 9.5, in addition to the Shares that a Principal
Shareholder beneficially owns directly, a Principal Shareholder shall be
deemed to be the beneficial owner of any Shares (1) which the Principal
Shareholder has the right to acquire pursuant to any agreement or upon
exercise of conversion rights or warrants, or otherwise or (2) which are
beneficially owned, directly or indirectly (including Shares deemed
owned through application of clause (1) above), by any other Person or
group with which the Principal Shareholder or its "affiliate" or
"associate," as those terms are defined in Rule 12b-2, or any successor
rule, under the 1934 Act, has any agreement, arrangement, or
understanding for the purpose of acquiring, holding, voting, or
disposing of Shares, or which is its "affiliate" or "associate" as so
defined. For purposes of this Section 9.5, calculation of the total
Shares of the Trust shall not include Shares deemed owned through
application of clause (1) above.
(c)The provisions of this Section 9.5 shall not be applicable to any such
transaction between the Trust and any entity of which a majority of the
outstanding shares of all classes and series of a stock normally
entitled to vote in elections of directors is owned of record and
beneficially by the Trust and its subsidiaries.
(d)The Board of Trustees shall have the power and duty to determine for the
purposes of this Section 9.5, on the basis of information known to the
Trust, whether:
(1)A Person or group beneficially owns five percent (5%) or more of the
Shares;
(2)A corporation, person or entity is an "affiliate" or "associate" (as
defined above) of another; and
(3)The assets being sold, leased or exchanged by or to the Trust have an
aggregate fair market value of less than 2% of the total assets of
the Trust (as defined above).
Any such determination shall be conclusive and binding for all purposes
of this Section 9.5 in the absence of manifest error.
Section 9.6 Absence of Appraisal or Dissenters' Rights. No Shareholder shall
be entitled, as a matter of right, to an appraisal by the Delaware Court of
Chancery or otherwise of
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the fair value of the Shareholder's Shares or to any other relief as a
dissenting Shareholder in respect of any proposal or action involving the Trust
or any class of Shares or otherwise.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Not a Partnership; Taxation.
(a)It is hereby expressly declared that a trust and not a partnership is
created hereby. All persons extending credit to, contracting with or
having any claim against the Trust or the Trustees in their capacity as
such shall look only to the assets of the Trust for payment under such
credit, contract or claim; and neither the Shareholders, the Trustees,
nor the Trust's officers nor any of the agents of the Trustees whether
past, present or future, shall be personally liable therefor.
(b)It is intended that the Trust be classified for income tax purposes as
an association taxable as a corporation, and the Trustees shall do all
things that they, in their sole discretion, determine are necessary to
achieve that objective, including (if they so determine), electing such
classification on Internal Revenue Form 8832. The Trustees, in their
sole discretion and without the vote or consent of the Shareholders, may
amend this Agreement to ensure that this objective is achieved.
Section 10.2 Trustee's Good Faith Action, Expert Advice, No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder in good
faith shall be binding upon everyone interested. Subject to the provisions of
Article VIII and to this Section 10.2, the Trustees 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
Agreement, and subject to the provisions of Article VIII and this Section 10.2,
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 obtained.
Section 10.3 Filing of Copies, References, Headings. The original or a copy
of this Agreement or any amendment hereto or any supplemental agreement shall
be kept at the office of the Trust. Headings are placed herein for convenience
of reference only and in case of any conflict, the text of this Agreement,
rather than the headings, shall control. This Agreement and any document,
consent or instrument referenced in or contemplated by this Agreement or the
Bylaws may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together will constitute one and the same
instrument. To the extent permitted by the 1940 Act, (i) any document, consent,
instrument or notice referenced in or contemplated by this Agreement or the
Bylaws that is to be executed by one or more Trustees may be executed by means
of original, facsimile or electronic signature and (ii) any document, consent,
instrument or notice referenced in or contemplated by this Agreement or the
Bylaws that is to be delivered by one or more Trustees may be delivered by
facsimile or electronic means (including e-mail), unless, in the case of either
clause (i) or (ii), otherwise determined by the Trustees. The terms "include,"
"includes" and "including" and any comparable terms shall be deemed to mean
"including, without limitation." Any reference to any statute, law, code, rule
or regulation shall be deemed to refer to such statute, law, code, rule or
regulation as amended or restated from time to time and any successor thereto.
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Section 10.4 Governing Law.
(a)The Trust and the Governing Instrument (including this Agreement) and
the rights, obligations and remedies of the Trustees and Shareholders
hereunder, are to be governed by and construed and administered
according to the Delaware Act, including the provision that gives
maximum freedom to contract, the other laws of the State of Delaware and
the applicable provisions of the 1940 Act. Notwithstanding the
foregoing, the following provisions shall not be applicable to the
Trust, the Trustees, the Shareholders or the Governing Instrument:
(1)The provisions of Sections 3533, 3540, 3561 and 3583(a) of Title 12
of the Delaware Code; or
(2)Any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts which
relate to or regulate:
(A)The filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges;
(B)Affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust;
(C)The necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or
personal property;
(D)Fees or other sums payable to trustees, officers, agents or
employees of a trust;
(E)The allocation of receipts and expenditures to income or
principal;
(F)Restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets;
or
(G)The establishment of fiduciary or other standards or
responsibilities or limitations on the indemnification, acts or
powers of trustees or other Persons, which are inconsistent with
the limitations of liabilities or authorities and powers of the
Trustees or officers of the Trust set forth or referenced in the
Governing Instrument.
(b)The Trust shall be of the type commonly called a "statutory trust," and
without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware
law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged
in by trusts under the Delaware Act, and the absence of a specific
reference herein to any such power, privilege or action shall not imply
that the Trust may not exercise such power or privilege or take
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such actions; provided, however, that the exercise of any such power,
privilege or action shall not otherwise violate applicable law.
Section 10.5 Amendments. Except as specifically provided in Article VI
hereof or otherwise expressly limited by the Governing Instrument, the Trustees
may, without any Shareholder vote, amend this Agreement by making an amendment
to this Agreement, an agreement supplemental hereto, or an amended and restated
trust instrument. Any such amendment to any Article of this Agreement except to
Section 3.2 to change the minimum or maximum number of Trustees, to Section 3.3
to declassify the Board, to Article VI or Article IX, to the extent required by
Section 6.2, to Section 8.4, or to this Section 10.5, having been approved by a
Majority Trustee Vote, shall become effective, unless otherwise provided by
such Trustees (notwithstanding that the section being amended may require a
higher Trustee vote), upon being executed by a duly authorized officer of the
Trust. Any amendment to Section 3.2 to change the minimum or maximum number of
Trustees or to this Section 10.5, having been approved by the affirmative vote
of 75% of the Board of Trustees shall become effective upon being executed by a
duly authorized officer of the Trust. For the avoidance of doubt, any
determination of the number of Trustees within the minimum and maximum range
may be determined by a majority of the Trustees and the provisions of
Section 3.4(b) to increase the size of the Board are not subject to a Majority
Trustee Vote. Any amendment to Section 3.3 to declassify the Board or to
Article VI or Article IX, or, to the extent required by Section 6.2,
Section 8.4, having been approved by the requisite vote of the Board of
Trustees followed by the requisite vote of the Shareholders as provided in
Section 9.1, shall become effective upon being executed by a duly authorized
officer of the Trust. A certification signed by a duly authorized officer of
the Trust setting forth an amendment to this Agreement and reciting that it was
duly adopted by the Shareholders or by the Trustees as aforesaid, or a copy of
this Agreement, as amended, executed by a majority of the Trustees, or a duly
authorized officer of the Trust, shall be conclusive evidence of such amendment
when lodged among the records of the Trust.
Section 10.6 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 10.7 Record Owners' Right to Shareholder List and Other Records.
Except as may be required by Regulation 14A promulgated under the 1934 Act, no
Shareholder shall have the right to obtain from the Trust a list of the Trust's
Shareholders. Except as required by the 1940 Act or as expressly provided in
the Governing Instrument, Shareholders shall have no right to inspect the
records, documents, accounts and books of the Trust. Any request to inspect the
records of the Trust shall be submitted by the Shareholder to the Trust in
writing. Upon receipt of any such request, the Trustees shall determine whether
delivery of records pertaining to such request is required by the 1940 Act or
is otherwise necessary or appropriate, as determined by the Trustees in their
sole discretion, and whether such request complies with the requirements of the
1940 Act and, if so, establish procedures for such inspection. To preserve the
integrity of the records, the Trust may provide certified copies of Trust
records rather than originals. The Trust shall not be required to create
records or obtain records from
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third parties to satisfy a Shareholder request. The Trust may require a
requesting Shareholder to pay in advance or otherwise indemnify the Trust for
the costs and expenses of such Shareholder's inspection of records. The rights
provided for in this Section 10.7 shall not extend to any Person who is a
Shareholder but not also a Record Owner.
Section 10.8 Reports. The Trustees shall cause to be prepared at least
annually and more frequently to the extent and in the form required by law,
regulation or any stock exchange on which Shares are listed a report of
operations containing a balance sheet and statement of income and undistributed
income of the Trust prepared in conformity with generally accepted accounting
principles and an opinion of an independent public accountant on such financial
statements. Copies of such reports shall be mailed to all Shareholders within
the time required by the 1940 Act, and in any event within a reasonable period
preceding the meeting of Shareholders. The Trustees shall, in addition, furnish
to the Shareholders at least semi-annually to the extent required by law,
interim reports containing an unaudited balance sheet of the Trust as of the
end of such period and an unaudited statement of income and surplus for the
period from the beginning of the current fiscal year to the end of such period.
Section 10.9 Use of the Name "Invesco". The Board of Trustees expressly
agrees and acknowledges that the name "Invesco" is the sole property of Invesco
Ltd. ("Invesco"). Invesco has granted to the Trust a non-exclusive license to
use such name as part of the name of the Trust now and in the future. The Board
of Trustees further expressly agrees and acknowledges that the non-exclusive
license granted herein may be terminated by Invesco if the Trust ceases to use
Invesco or one of its Affiliated Persons as investment adviser or to use other
Affiliated Persons or successors of Invesco for such purposes. In such event,
the non-exclusive license may be revoked by Invesco and the Trust shall cease
using the name "Invesco" or any name misleadingly implying a continuing
relationship between the Trust and Invesco or any of its Affiliated Persons, as
part of its name unless otherwise consented to by Invesco or any successor to
its interests in such name.
The Board of Trustees further understands and agrees that so long as Invesco
and/or any future advisory Affiliated Person of Invesco shall continue to serve
as the Trust's investment adviser, other registered open- or closed-end
investment companies ("funds") and other types of investment vehicles as may be
sponsored or advised by Invesco or its Affiliated Persons shall have the right
permanently to adopt and to use the name "Invesco" in their names and in the
names of any series or class of shares of such funds.
Section 10.10 Jurisdiction and Waiver of Jury Trial. In accordance with
Section 3804(e)of the Delaware Act, any suit, action or proceeding brought by
or in the right of any Shareholder or any person claiming any interest in any
Shares seeking to enforce any provision of, or based on any matter arising out
of, or in connection with, this Agreement or the Trust, any class or any
Shares, including any claim of any nature against the Trust, any Class, the
Trustees or officers of the Trust, shall be brought exclusively in the Court of
Chancery of the State of Delaware to the extent there is subject matter
jurisdiction in such court for the claims asserted or, if not, then in the
Superior Court of the State of Delaware, and all Shareholders and other such
Persons hereby irrevocably consent to the jurisdiction of such courts (and the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waive, to the fullest extent permitted by law, any objection
they may make now or hereafter have to the laying of the venue of any such
suit, action or proceeding in such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum
and further, IN CONNECTION WITH ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN
THE SUPERIOR COURT IN THE STATE OF DELAWARE, ALL
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SHAREHOLDERS AND ALL OTHER SUCH PERSONS HEREBY IRREVOCABLY WAIVE THE RIGHT TO A
TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW. All Shareholders and
other such Persons agree that service of summons, complaint or other process in
connection with any proceedings may be made by registered or certified mail or
by overnight courier addressed to such Person at the address shown on the books
and records of the Trust for such Person or at the address of the Person shown
on the books and records of the Trust with respect to the Shares that such
Person claims an interest in. Service of process in any such suit, action or
proceeding against the Trust or any Trustee or officer of the Trust may be made
at the address of the Trust's registered agent in the State of Delaware. Any
service so made shall be effective as if personally made in the State of
Delaware.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this day of October, 2017.
/s/ Xxxxx X. Arch
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Xxxxx X. Arch
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
/s/ Xxx Xxxxx
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Xxx Xxxxx
/s/ Xxxxx Xxxxxx-Xxxxx
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Xxxxx Xxxxxx-Xxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/ Xxx Xxxxxxx Xxxxx
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Xxx Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx, Xx.
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Xxxxxxx Xxxxxxx, Xx.
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
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Sub-Item 77Q1(a)
INVESCO HIGH INCOME 2024 TARGET TERM FUND
BYLAWS
A DELAWARE STATUTORY TRUST
Adopted effective October 18, 2017
Capitalized terms not specifically defined herein
shall have the meanings ascribed to them in the Trust's
Amended and Restated Agreement and Declaration of Trust (the "Agreement").
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Invesco High Income
2024 Target Term Fund (the "Trust") shall be as set forth in the Certificate of
Trust.
Section 2. Other Offices. The Trust may also have offices at such other
places (including a principal office) both within and without the State of
Delaware as the Trustees may from time to time determine or the business of the
Trust may require.
ARTICLE II
TRUSTEES
Section 1. Meetings of the Trustees. The Trustees of the Trust may hold
meetings, both regular and special, either within or without the State of
Delaware. Subject to any applicable requirements of the 1940 Act, (i) any
meeting, regular or special, of the Board of Trustees (or any committee or
sub-committee thereof) may be held by conference telephone or similar
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 and (ii) at all meetings of
the Trustees, every Trustee shall be entitled to vote by proxy, provided that
such proxy shall, before or after such meeting, be delivered to the Secretary
or other person responsible for recording the proceedings of such meeting. To
the extent permitted by the 1940 Act, a Trustee may provide any proxy through
written, electronic, telephonic, computerized, facsimile, telecommunications,
telex or by any other form of communication.
Section 2. Regular Meetings. Regular meetings of the Board of Trustees shall
be held each year, at such time and place as the Board of Trustees may
determine.
Section 3. Notice of Meetings. Notice of the time, date, and place of all
meetings of the Board of Trustees and any committee or sub-committee thereof
shall be given to each Trustee, committee member or sub-committee member, as
applicable, (i) by telephone, telex, telegram, facsimile, electronic-mail, or
other electronic mechanism to his or her home or business at least twenty-four
hours in advance of the meeting; (ii) in person at another meeting of the Board
of Trustees or such committee or sub-committee, as applicable; or (iii) by
written notice mailed or sent via overnight courier to his or her home or
business address at least seventy-two hours in advance of the meeting. Notice
need not be given to any Trustee, committee member or sub-committee member who
attends a meeting of the Board of Trustees or any committee or sub-committee
thereof without objecting to the lack of notice or who signs a waiver of notice
either before or after such meeting.
Section 4. Quorum. At all meetings of the Board of Trustees and any
committee or sub-committee thereof, one-third of the Trustees then in office or
one-third of the committee members or sub-committee members (but in no event
fewer than two Trustees), as applicable, shall constitute a quorum for the
transaction of business. The act of a majority of the Trustees, committee
members or sub-committee members present at any meeting at which there is a
quorum shall be the act of the Board of Trustees or such committee or
sub-committee, as applicable, except for any higher voting requirement as may
be specifically provided by applicable law or by the Governing Instrument. If a
quorum shall not be present at any meeting of the Board of Trustees or any
committee or sub-committee thereof, the Trustees, committee members or
sub-committee members, as applicable, present thereat may adjourn such meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 5. Designation, Powers, and Names of Committees; Sub-Committees;
Committee Charters.
(a) The Board of Trustees shall have at a minimum the following five
committees: (1) an Audit Committee; (2) a Governance Committee; (3) an
Investments Committee; (4) a Valuation, Distribution and Proxy Oversight
Committee; and (5) a Compliance Committee. Each such Committee shall have a
written Charter governing its membership, duties and operations, and the Board
shall designate the powers of each such Committee in its Charter. The Board of
Trustees may terminate any such Committee by an amendment to these Bylaws. The
Board of Trustees may, by resolution passed by a majority of the whole Board,
establish one or more sub-committees of each such Committee, and the
membership, duties and operations of each such sub-committee shall be set forth
in the written Charter of the applicable Committee.
(b) The Board of Trustees may, by resolution passed by a majority of the
whole Board, designate one or more additional committees, including ad hoc
committees to address specified issues, each of which may, if deemed advisable
by the Board of Trustees, have a written Charter. Each such additional
committee shall consist of two or more of the Trustees of the Trust. The Board
may designate one or more Trustees as alternate members of any such additional
committee, who may replace any absent or disqualified member at any meeting of
such committee. Each such additional committee, to the extent provided in the
resolution and/or in such committee's Charter, if applicable, shall have and
may exercise the powers of the Board of Trustees in the management of the
business and affairs of the Trust; provided, however, that in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not such members constitute a quorum, may unanimously appoint
another member of the Board of Trustees to act at the meeting in the place of
any such absent or disqualified member. Such additional committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Trustees and/or as set forth in the written
Charter of such committee or committees, if applicable.
Section 6. Chair; Vice Chair. The Board of Trustees shall have a Chair, who
shall be a Trustee who is not an Interested Person. The Chair shall be elected
by a majority of the Trustees, including a majority of the Trustees who are not
Interested Persons. The Board of Trustees may also have a Vice Chair, who shall
be a Trustee. The Vice Chair shall be elected by a majority of the Trustees,
including a majority of the Trustees who are not Interested Persons. The Chair
shall preside at all meetings of the Shareholders and the Board of Trustees, if
the Chair is present, and shall approve the agendas of all meetings of the
Shareholders and the Board of Trustees. The Chair shall have such other powers
and duties as
2
shall be determined by the Board of Trustees, and shall undertake such other
assignments as may be requested by the Board of Trustees. If the Chair shall
not be present, the Vice Chair, if any, shall preside at all meetings of the
Shareholders and the Board of Trustees, if the Vice Chair is present. The Vice
Chair shall have such other powers and duties as shall be determined by the
Chair or the Board of Trustees, and shall undertake such other assignments as
may be requested by the Chair or the Board of Trustees.
ARTICLE III
OFFICERS
Section 1. Executive Officers. The executive officers shall include a
Principal Executive Officer, a President, one or more Vice Presidents, which
may include one or more Executive Vice Presidents and/or Senior Vice Presidents
(the number thereof to be determined by the Board of Trustees), a Principal
Financial Officer, a Chief Legal Officer, a Chief Compliance Officer, a Senior
Officer, a Treasurer, a Secretary and an Anti-Money Laundering Compliance
Officer. The Board of Trustees may also in its discretion appoint Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, and other
officers, agents and employees, who shall have such authority and perform such
duties as the Board may determine. The Board of Trustees may fill any vacancy
that may occur in any office. Any two offices, except for those of President
and Vice President, may be held by the same person, but no officer shall
execute, acknowledge or verify any instrument on behalf of the Trust in more
than one capacity, if such instrument is required by law or by these Bylaws to
be executed, acknowledged or verified by two or more officers.
Section 2. Term of Office. Unless otherwise specifically determined by the
Board of Trustees, the officers shall serve at the pleasure of the Board of
Trustees. If the Board of Trustees in its judgment finds that the best
interests of the Trust will be served, the Board of Trustees may remove any
officer of the Trust at any time with or without cause. The Trustees may
delegate this power to the President (without supervision by the Trustees) with
respect to any other officer, except the Senior Officer. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer may resign from office at any time by delivering a written resignation
to the Trustees or the President. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 3. Principal Executive Officer. The Principal Executive Officer
shall be the chief executive officer of the Trust and shall generally manage
the business and affairs of the Trust. The Principal Executive Officer shall be
responsible for making the certifications required of the Trust's principal
executive officer by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules promulgated thereunder by the Securities and Exchange Commission (the
"Commission").
Section 4. President; Vice Presidents. The President and one or more Vice
Presidents, which may include one or more Executive Vice Presidents and/or
Senior Vice Presidents, shall have and exercise such powers and duties of the
Principal Executive Officer in the absence or inability to act of the Principal
Executive Officer, as may be assigned to them, respectively, by the Board of
Trustees or, to the extent not so assigned, by the Principal Executive Officer.
In the absence or inability to act of the Principal Executive Officer, the
powers and duties of the Principal Executive Officer not otherwise assigned by
the Board of Trustees or the Principal Executive Officer shall devolve first
upon the President, then upon the Executive Vice Presidents, then upon the
Senior Vice Presidents, and finally upon the Vice Presidents, all in the order
of their election. If both the Chair and the Vice Chair are absent, or if
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the Chair is absent and there is no Vice Chair, the President shall, if
present, preside at all meetings of the Shareholders and the Board of Trustees.
Section 5. Principal Financial Officer. The Principal Financial Officer, who
shall also have a title of at least Vice President, shall be the chief
financial officer of the Trust and shall generally manage the financial affairs
of the Trust. The Principal Financial Officer shall be responsible for making
the certifications required of the Trust's principal financial officer by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder.
Section 6. Chief Legal Officer. The Chief Legal Officer, who shall also have
a title of at least Senior Vice President, shall generally manage the legal
affairs of the Trust. The Chief Legal Officer shall be responsible for
receiving up-the-ladder reports within the Trust of any evidence of material
violations of securities laws or breaches of fiduciary duty or similar
violations by the Trust, as required by Section 307 of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules promulgated thereunder.
Section 7. Chief Compliance Officer. The Chief Compliance Officer, who shall
also have a title of at least Senior Vice President, shall be responsible for
administering the Trust's policies and procedures adopted pursuant to
Rule 38a-1(a)(1) under the 1940 Act.
Section 8. Senior Officer. The Senior Officer, who shall also have a title
of at least Senior Vice President, shall be employed by or on behalf of the
Trust and shall have such powers and duties as are set forth in such Senior
Officer's Executive Employment Agreement.
Section 9. Treasurer. The Treasurer shall have the care and custody of the
funds and securities of the Trust and shall deposit the same in the name of the
Trust in such bank or banks or other depositories, subject to withdrawal in
such manner as these Bylaws or the Board of Trustees may determine. The
Treasurer shall, if required by the Board of Trustees, give such bond for the
faithful discharge of duties in such form as the Board of Trustees may require.
Section 10. Secretary. The Secretary shall (a) have custody of the seal of
the Trust, if any; (b) if requested, attend meetings of the Shareholders, the
Board of Trustees, and any committees or sub-committees of Trustees; (c) keep
or cause to be kept the minutes of all meetings of Shareholders, the Board of
Trustees and any committees or sub-committees thereof, and (d) issue all
notices of the Trust. The Secretary shall have charge of the Shareholder
records and such other books and papers as the Board may direct, and shall
perform such other duties as may be incidental to the office or which are
assigned by the Board of Trustees.
Section 11. Anti-Money Laundering Compliance Officer. The Anti-Money
Laundering Compliance Officer shall have such powers and duties as are set
forth in the Anti-Money Laundering Program adopted by the Trust pursuant to the
USA PATRIOT Act of 2001 and the rules promulgated thereunder, as such Program
may be amended from time to time.
Section 12. Assistant Officers. Assistant officers, which may include one or
more Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers,
shall perform such functions and have such responsibilities as the Board of
Trustees may assign to them or, to the extent not so assigned, by the
President, Vice President(s), Secretary or Treasurer, as applicable.
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Section 13. Surety Bond. The Trustees may require any officer or agent of
the Trust to execute a bond (including, without limitation, any bond required
by the 1940 Act and the rules and regulations of the Commission) to the Trust
in such sum and with such surety or sureties as the Trustees may determine,
conditioned upon the faithful performance of his or her duties to the Trust,
including responsibility for negligence and for the accounting of any of the
Trust's property, funds, or securities that may come into his or her hands.
Section 14. Authorized Signatories. Unless a specific officer is otherwise
designated in these Bylaws or in a resolution adopted by the Board of Trustees,
the proper officers of the Trust for executing agreements, documents and
instruments other than Internal Revenue Service forms shall be the Principal
Executive Officer, the President, any Vice President, the Principal Financial
Officer, the Chief Legal Officer, the Chief Compliance Officer, the Senior
Officer, the Treasurer, the Secretary, the Anti-Money Laundering Compliance
Officer, any Assistant Vice President, any Assistant Treasurer or any Assistant
Secretary. Unless a specific officer is otherwise designated in these Bylaws or
in a resolution adopted by the Board of Trustees, the proper officers of the
Trust for executing any and all Internal Revenue Service forms shall be the
Principal Executive Officer, the President, any Vice President, the Principal
Financial Officer, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary.
ARTICLE IV
MEETINGS OF SHAREHOLDERS
Section 1. Purpose. All meetings of the Shareholders for the election of
Trustees shall be held at such time and place as may be fixed from time to time
by the Trustees, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the Trustees and stated in
the notice indicating that a meeting has been called for such purpose. Meetings
of Shareholders may be held for any purpose determined by the Trustees and may
be held at such time and place, within or without the State of Delaware as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof. At all meetings of the Shareholders, every Record Owner
entitled to vote on a matter to be voted on by such Shares shall be entitled to
vote on such matter at such meeting either in person or by written proxy signed
by the Record Owner or by his duly authorized attorney in fact. A Record Owner
may duly authorize such attorney in fact through written, electronic,
telephonic, computerized, facsimile, telecommunication, telex or oral
communication or by any other form of communication.
Section 2. Election of Trustees. All meetings of Shareholders for the
purpose of electing Trustees shall be held on such date and at such time as
shall be designated from time to time by the Trustees and stated in the notice
of the meeting, at which the Shareholders shall elect the number of Trustees as
provided in the Agreement and as the notice for such meeting shall state are to
be elected, and transact such other business as may properly be brought before
the meeting in accordance with Section 5 of this Article IV.
Section 3. Notice of Meetings. Written notice of any meeting stating the
place, date, and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten days before the date of the
meeting, to each Shareholder entitled to vote at such meeting in accordance
with Article V hereof. No notice of any meeting need be given to any
Shareholder who attends such meeting in person or to any Shareholder who waives
notice of such meeting (which waiver shall be filed with the records of such
meeting), whether before or after the time of the meeting. In the absence of
fraud, any irregularities in the notice of any
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meeting or the nonreceipt of any such notice by any of the Shareholders shall
not invalidate any action otherwise properly taken at any such meeting.
Section 4. Special Meetings. Special meetings of the Shareholders, for any
purpose or purposes, unless otherwise prescribed by applicable law or by the
Agreement, may be called by the Chair or by a majority of the Trustees. For the
avoidance of doubt, Shareholders shall have no power to call special meetings
of Shareholders.
Section 5. Conduct of Meeting. Business transacted at any meeting of
Shareholders shall be limited to (a) the purpose stated in the notice, (b) such
other matters as are permitted to be presented at the meeting in accordance
with Section 1 of Article V, and (c) the adjournment of such meeting in
accordance with Section 14 of this Article IV.
Section 6. Quorum. A majority of the outstanding Shares entitled to vote at
a Shareholders' meeting, which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders' meeting, except when a larger
quorum is required by applicable law or the requirements of any securities
exchange on which Shares are listed for trading, in which case such quorum
shall comply with such requirements. Quorum shall be determined with respect to
the meeting as a whole regardless of whether particular matters have achieved
the requisite vote for approval, but the presence of a quorum shall not prevent
any adjournment at the meeting pursuant to Section 14 of this Article IV.
Section 7. Organization of Meetings.
(a) The meetings of the Shareholders shall be presided over by the
Chair, or if the Chair shall not be present, by the Vice Chair, if any, or if
the Vice Chair shall not be present or if there is no Vice Chair, by the
President, or if the President shall not be present, by a Vice President, or if
no Vice President is present, by a chair appointed for such purpose by the
Board of Trustees or, if not so appointed, by a chair appointed for such
purpose by the officers and Trustees present at the meeting. The Secretary of
the Trust, if present, shall act as secretary of such meetings, or if the
Secretary is not present, an Assistant Secretary of the Trust shall so act, and
if no Assistant Secretary is present, then a person designated by the Secretary
of the Trust shall so act, and if the Secretary has not designated a person,
then the meeting shall elect a secretary for the meeting.
(b) The Board of Trustees of the Trust shall be entitled to make such
rules and regulations for the conduct of meetings of Shareholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Trustees, if any, the chair of the meeting shall
have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chair, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing: an agenda or order of business for
the meeting; rules and procedures for maintaining order at the meeting and the
safety of those present; limitations on participation in such meeting to
shareholders of record of the Trust and their duly authorized and constituted
proxies, and such other persons as the chair shall permit; restrictions on
entry to the meeting after the time fixed for the commencement thereof;
limitations on the time allotted to questions or comments by participants; and
regulation of the opening and closing of the polls for balloting on matters
which are to be voted on by ballot. Unless and to the extent otherwise
determined by the Board of Trustees or the chair of the meeting, meetings of
Shareholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
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Section 8. Voting Standard. When a quorum is present at any meeting, the
vote of the Shares as set forth in the Agreement shall decide any question
brought before such meeting, unless a different vote is required by the express
provision of applicable law, the Governing Instrument or applicable contract,
in which case such express provision shall govern and control the decision of
such question. Where a separate vote by classes is required, the preceding
sentence shall apply to such separate votes by classes.
Section 9. Voting Procedure. Each Record Owner as of the record date
established pursuant to Section 13 of this Article IV shall be entitled to one
vote for each whole Share and a proportionate fractional vote for each
fractional Share owned of record on the record date by such Record Owner.
Section 10. Action Without Meeting. Unless otherwise provided in the
Agreement or applicable law, any action required to be taken at any meeting of
the Shareholders, or any action which may be taken at any meeting of the
Shareholders, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding Shares of the Trust (or a class of Shares
in the case of a class vote) having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all Shares of the Trust (or such class) entitled to vote thereon were present
and voted. Prompt notice of the taking of any such action without a meeting by
less than unanimous written consent shall be given to those Shareholders of the
Trust (or such class, as applicable) who have not consented in writing.
Section 11. Broker Non-Votes. At any meeting of Shareholders, the Trust will
consider broker non-votes, if any, as "entitled to vote, " and therefore
present for purposes of determining whether a quorum is present at the meeting
and the percentage of outstanding Shares present in person or by proxy and
entitled to vote at the meeting.
Section 12. Abstentions. At any meeting of Shareholders, the Trust will
consider abstentions, if any, as "entitled to vote," and therefore present for
purposes of determining whether a quorum is present at the meeting and the
percentage of outstanding Shares present in person or by proxy and entitled to
vote at the meeting.
Section 13. Record Date for Shareholder Meetings and Consents. In order that
the Trustees may determine the Record Owners entitled to notice of or to vote
at any meeting of Shareholders or any adjournment thereof, or to express
consent to action in writing without a meeting, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Trustees, and
which record date shall not be more than ninety nor less than ten days before
the original date upon which the meeting of Shareholders is scheduled. A
determination of Record Owners entitled to notice of or to vote at a meeting of
Shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Trustees may fix a new record date for the adjourned meeting
so long as notice of the adjournment and the new record and meeting dates are
given to the Shareholders.
Section 14. Adjournments.
(a) Prior to the date upon which any meeting of Shareholders is to be
held, the Board of Trustees may postpone such meeting one or more times for any
reason by giving notice to each Shareholder entitled to vote at the meeting so
postponed of the place, date and hour at which such meeting will be held. Such
notice shall be given not fewer than two (2) days
7
before the date of such meeting and otherwise in accordance with Article V. A
meeting of the Shareholders convened on the date for which it was called may be
adjourned from time to time without further notice to the Shareholders to a
date not more than 120 days after the original meeting date. A meeting of the
Shareholders may not be adjourned for more than 120 days after the original
meeting date for such meeting without giving the Shareholders notice of the
adjournment and the new meeting date. Except as otherwise set forth in
Article IV, Section 6 hereof, the vote of the holders of one-third of the
Shares cast, or the chair of the meeting in his or her discretion, shall have
the power to adjourn a meeting of the Shareholders with regard to a particular
proposal scheduled to be voted on at such meeting or to adjourn such meeting
entirely.
(b) In voting for adjournment, the persons named as proxies may vote
their proxies (including those marked "withhold," "against" or "abstain") in
favor of one or more adjournments of the meeting, or the chair of the meeting
may call an adjournment, provided such Persons determine that such adjournment
is reasonable and in the best interests of Shareholders and the Trust, based on
a consideration of such factors as they may deem relevant.
Section 15. Voting - Proxies. At all meetings of the Shareholders, every
Shareholder of record entitled to vote thereat shall be entitled to vote either
in person or by proxy, which term shall include proxies provided by such
Shareholder, or his duly authorized attorney, through written, electronic,
telephonic, computerized, facsimile, telecommunications, telex or oral
communication or by any other form of communication, each pursuant to such
voting procedures and through such systems as are authorized by the Board of
Trustees or any officer of the Trust. Proxies may be solicited in the name of
one or more Trustees or one or more officers of the Trust.
Unless the proxy provides otherwise, it shall not be valid for more than
eleven (11) months before the date of the meeting. All proxies shall be
delivered to the secretary or other person responsible for recording the
proceedings before being voted. A valid proxy which does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it before the vote pursuant to that proxy is taken (a) by a
writing delivered to the Trust stating that the proxy is revoked, (b) by a
subsequent proxy executed by such person, (c) attendance at the meeting and
voting in person by the person executing that proxy, or (d) revocation by such
person using any electronic, telephonic, computerized or other alternative
means authorized by the Trustees for authorizing the proxy to act; or
(ii) written notice of the death or incapacity of the maker of that proxy is
received by the Trust before the vote pursuant to that proxy is counted. Unless
revoked, any proxy given in connection with a postponed or adjourned meeting
for which a new record date is fixed shall continue to be valid so long as the
Shareholder giving such proxy is a Shareholder of record on such new such
record date.
A proxy with respect to Shares held in the name of two or more persons shall
be valid if executed by one of them unless at or prior to exercise of such
proxy the Trust receives a specific written notice to the contrary from any one
of them in which case such proxy shall not be valid and no vote shall be
received in respect of such Shares unless all persons holding such Shares shall
agree on their manner of voting. Unless otherwise specifically limited by their
terms, proxies shall entitle the Shareholder to vote at any adjournment of a
Shareholders' meeting.
Section 16. Concerning Validity of Proxies, Ballots, Etc. At every meeting
of the Shareholders, all proxies shall be received and taken in charge of and
all ballots shall be
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received and canvassed by the secretary of the meeting, who shall decide all
questions touching the qualification of voters, the validity of proxies, and
the acceptance or rejection of votes, unless inspectors of election shall have
been appointed as provided below in this section, in which event such
inspectors of election shall decide all such questions.
A proxy purporting to be executed by or on behalf of a Record Owner shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. Subject to the provisions of
the Delaware Act, the Agreement, or these By-laws, the General Corporation Law
of the State of Delaware relating to proxies, and judicial interpretations
thereunder, shall govern all matters concerning the giving, voting or validity
of proxies, as if the Trust were a Delaware corporation and the Shareholders
were stockholders of a Delaware corporation.
At any election of Trustees, the Board of Trustees prior thereto may, or, if
they have not so acted, the chair of the meeting may, appoint one or more
inspectors of election who shall first subscribe an oath or affirmation to
execute faithfully the duties of inspector at such election with strict
impartiality and according to the best of their ability, and shall after the
election make a certificate of the result of the vote taken. No candidate for
the office of Trustee shall be appointed as an inspector.
The chair of the meeting may cause a vote by ballot to be taken upon any
election or matter.
ARTICLE V
NOTICES
Section 1. Advance Notice of Shareholder Nominees for Trustee and Other
Shareholder Proposals.
(a) The matters to be considered and brought before any annual or
special meeting of Shareholders of the Trust shall be limited to only such
matters, including the nomination and election of Trustees, as shall be brought
properly before such meeting in compliance with the procedures set forth in
this Section.
(b) For any matter to be properly brought before any annual meeting of
Shareholders, the matter must be:
(1) Specified in the notice of annual meeting given by or at the
direction of the Board of Trustees;
(2) Otherwise brought before the annual meeting by or at the
direction of the Board of Trustees; or
(3) Brought before the annual meeting in the manner specified in this
Section by a Record Owner at the time of the giving of notice provided
for in this Section, on the record date for such meeting and at the time
of the meeting, or a Shareholder (a "Nominee Holder") that holds voting
securities entitled to vote at meetings of Shareholders through a
nominee or "street name" holder of record and can demonstrate to the
Trust such indirect ownership and such Nominee Holder's entitlement to
vote such securities, and is a Nominee Holder at the time of the giving
9
of notice provided for in this Section, on the record date for such
meeting and at the time of the meeting.
(c) In addition to any other requirements under applicable law and the
Governing Instrument of the Trust, persons nominated by Shareholders for
election as Trustees of the Trust and any other proposals by Shareholders shall
be properly brought before the meeting only if notice of any such matter to be
presented by a Shareholder at such meeting of Shareholders (the "Shareholder
Notice") shall be delivered to the Secretary of the Trust at the principal
executive office of the Trust not less than ninety (90) nor more than one
hundred twenty (120) days prior to the first anniversary date of the annual
meeting for the preceding year. A person may be nominated by a Shareholder for
election as a Trustee of the Trust only by a holder of a class of Shares
entitled to vote on the election of such nominee.
(d) If and only if the annual meeting is not scheduled to be held within
a period that commences thirty (30) days before such anniversary date and ends
thirty (30) days after such anniversary date (an annual meeting date outside
such period being referred to herein as an "Other Annual Meeting Date"), such
Shareholder Notice shall be given in the manner provided herein by the later of
the close of business on (i) the date ninety (90) days prior to such Other
Annual Meeting Date or (ii) the tenth (10th) day following the date such Other
Annual Meeting Date is first publicly announced or disclosed; provided,
however, that if the Other Annual Meeting Date was disclosed in the proxy
statement for the prior year's annual meeting, than the dates for receipt of
the Shareholder Notice shall be calculated in accordance with Section 1(c) of
this Article V based on such Other Annual Meeting Date and disclosed in the
proxy statement for the prior year's annual meeting.
(e) Notwithstanding anything in these Bylaws to the contrary, in the
event that the number of Trustees to be elected to the Board of Trustees of the
Trust is increased and either all of the nominees for Trustee or the size of
the increased Board of Trustees are not publicly announced or disclosed by the
Trust at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a Shareholder Notice shall also be considered
timely hereunder, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Trust at the principal executive office of the Trust not later than the close
of business on the tenth (10th) day following the first date all of such
nominees or the size of the increased Board of Trustees shall have been
publicly announced or disclosed.
(f) Any Shareholder desiring to nominate any person or persons (as the
case may be) for election as a Trustee or Trustees of the Trust shall deliver,
as part of such Shareholder Notice:
(1) A statement in writing with respect to the person or persons to
be nominated (a "Proposed Nominee") setting forth:
(A) The name, age, business address, residence address and
principal occupation or employment of the Proposed Nominee;
(B) The number and class of all Shares of the Trust owned of
record and beneficially by each such Proposed Nominee and the date(s)
of acquisition of such Shares, together with records evidencing such
holdings;
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(C) The name of each nominee holder of Shares owned beneficially
but not of record by such Proposed Nominee, the number and class of
such Shares held by each such nominee holder and the date(s) of
acquisition of such Shares, together with records evidencing such
holdings;
(D) The number and class of all Shares (i) which the Proposed
Nominee has the right to acquire pursuant to any agreement or upon
exercise of conversion rights or warrants, or otherwise or (ii) which
are beneficially owned, directly or indirectly (including Shares
deemed owned through application of clause (i) above), by any other
Person or group with which the Proposed Nominee or its "affiliate" or
"associate," as those terms are defined in Rule 12b-2, or any
successor rule, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), has any agreement, arrangement, or
understanding for the purpose of acquiring, holding, voting, or
disposing of Shares, or which is its "affiliate" or "associate" as so
defined;
(E) The information regarding each such Proposed Nominee required
by paragraph (b) of Item 22 of Rule 14a-101 under the Exchange Act,
adopted by the Commission (or the corresponding provisions of any
regulation or rule subsequently adopted by the Commission applicable
to the Trust);
(F) Whether such Shareholder believes any Proposed Nominee will be
an Interested Person, and, if not an Interested Person, information
regarding each Proposed Nominee that will be sufficient for the Trust
to make such determination; and
(G) A description of any agreement, arrangement or understanding,
whether written or oral (including any derivative or short positions,
profit interests, options or similar rights and borrowed or loaned
shares) that has been entered into as of the date of the Shareholder
Notice by, or on behalf of, such Proposed Nominee (i) the effect or
intent of which is to mitigate loss to, manage risk or benefit of
share price changes for, or increase or decrease the voting power of
such Proposed Nominee; or (ii) related to such nomination;
(H) Each such Proposed Nominee's signed consent to serve as a
Trustee of the Trust if elected; and
(I) Each Proposed Nominee's written representation that he or she
is not ineligible under Section 9(a) of the 1940 Act and is not
covered by, or subject to a proceeding regarding Section 9(b) of the
1940 Act and an agreement to complete and execute the Trust's form of
trustee questionnaire.
(2) Such other information as is required by Section 1(h) of this
Article V.
(g) Any Shareholder who gives a Shareholder Notice of any matter
proposed to be brought before the meeting shall deliver, as part of such
Shareholder Notice:
(1) The text of the proposal to be presented;
(2) A brief written statement of the reasons why such Shareholder
favors the proposal; and
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(3) Any material interest of such Shareholder in the matter proposed
(other than as a Shareholder).
(h) Any Shareholder who gives a Shareholder Notice of any matter
proposed to be brought before the meeting or to elect Proposed Nominees shall
deliver, as part of such Shareholder Notice:
(1) In the case of a Nominee Holder, evidence establishing such
Nominee Holder's indirect ownership of, and entitlement to vote,
securities at the meeting of Shareholders;
(2) A representation whether the Shareholder or the beneficial owner,
if any, intends or is part of a group which intends to solicit proxies
from Shareholders in support of such proposal or nomination;
(3) Any other information relating to such Shareholder and such
beneficial owner that would be required to be disclosed in a proxy
statement or other filing required to be made in connection with the
solicitation of proxies by such Person with respect to the proposed
business to be brought by such Person before the annual meeting pursuant
to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder, whether or not such Person intends to deliver a
proxy statement or solicit proxies; and
(4) A statement in writing with respect to the Shareholder and the
beneficial owner, if any, on whose behalf the proposal is being made
setting forth:
(A) The name and address of such Shareholder, as they appear on
the Trust's books, and of such beneficial owner;
(B) The number and class of Shares which are owned beneficially
and of record by such Shareholder and such beneficial owner, and the
date(s) of acquisition of such shares, together with records
evidencing such holdings;
(C) The name of each nominee holder of Shares owned beneficially
but not of record by such Shareholder and beneficial owner, and the
number and class of such Shares held by each such nominee holder, and
the date(s) of acquisition of such shares, together with records
evidencing such holdings;
(D) The number and class of all Shares (i) which the Shareholder
has the right to acquire pursuant to any agreement or upon exercise
of conversion rights or warrants, or otherwise or (ii) which are
beneficially owned, directly or indirectly (including Shares deemed
owned through application of clause (i) above), by any other Person
or group with which the nominating Shareholder or its "affiliate" or
"associate," as those terms are defined in Rule 12b-2, or any
successor rule, under the Exchange Act, has any agreement,
arrangement, or understanding for the purpose of acquiring, holding,
voting, or disposing of Shares, or which is its "affiliate" or
"associate" as so defined; and
(E) A description of any agreement, arrangement or understanding,
whether written or oral (including any derivative or short positions,
profit interests, options or similar rights and borrowed or loaned
shares) that has been entered
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into as of the date of the Shareholder Notice by, or on behalf of,
such Shareholder or such beneficial owners (i) the effect or intent
of which is to mitigate loss to, manage risk or benefit of share
price changes for, or increase or decrease the voting power of such
Shareholder or such beneficial owner; or (ii) related to such
proposal.
(i) A Shareholder providing notice of any nomination or other business
proposed to be brought before an annual meeting of Shareholders shall further
update and supplement such notice, if necessary, so that the information
provided or required to be provided in the notice of the annual meeting
delivered pursuant to Section 3 of Article IV shall be true and correct as of
the record date for determining the Record Owners entitled to receive notice of
the annual meeting of Shareholders and such update and supplement shall be
received by the Secretary at the principal executive offices of the Trust not
later than five (5) business days before the record date for determining the
Shareholders entitled to receive notice of the annual meeting of Record Owners.
(j) Notwithstanding the foregoing provisions of this Article, unless
otherwise required by law, if the Shareholder (or a qualified representative of
the Shareholder) does not appear at the annual meeting or special meeting of
Shareholders of the Trust to present a nomination or proposed business, such
nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been
received by the Trust. For purposes of this Article, to be considered a
qualified representative of the Shareholder, a Person must be a duly authorized
officer, manager or partner of such Shareholder or must be authorized by a
writing executed by such Shareholder delivered by such Shareholder to act for
such Shareholder as proxy at the meeting of Shareholders and such Person must
deliver a copy of such writing to the acting secretary at the meeting of
Shareholders.
(k) As used herein, shares "beneficially owned" shall mean all Shares
which such person is deemed to beneficially own pursuant to Rules 13d-3 and
13d-5 under the Exchange Act.
(l) Only such matters shall be conducted at a special meeting of
Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting. Nominations of individuals for election to the Board
of Trustees may be made at a special meeting of Shareholders at which Trustees
are to be elected:
(1) Pursuant to the Trust's notice of meeting;
(2) By or at the direction of the Board of Trustees; or
(3) Provided that the Board of Trustees has determined that Trustees
shall be elected at such special meeting, by:
(A) Any Shareholder of the Trust who is a Record Owner at the time
of giving of notice provided for in this Section, at the record date
for such meeting and at the time of the special meeting, who is
entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section; or
(B) A Nominee Holder that holds voting securities entitled to vote
at meetings of Shareholders through a nominee or "street name" holder
of record
13
and can demonstrate to the Trust such indirect ownership and such
Nominee Holder's entitlement to vote such securities, and is a
Nominee Holder at the time of giving of notice provided for in this
Section, at the record date for such meeting and at the time of the
special meeting, and who is entitled to vote at the meeting and has
complied with the notice procedures set forth in this Section.
(m) In the event the Trust calls a special meeting of Shareholders for
the purpose of electing one or more Trustees to the Board of Trustees, any
Record Owner or Nominee Holder, meeting the requirements of Section 1(l)(3) of
this Article V, may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Trust's notice of meeting, if
the appropriate Shareholder Notice shall be delivered to the Secretary of the
Trust at the principal executive office of the Trust not later than the close
of business on the tenth (10th) day following the day on which the date of the
special meeting and of the nominees proposed by the Board of Trustees to be
elected at such meeting is publicly announced or disclosed.
(n) For purposes of this Section, a matter shall be deemed to have been
"publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Xxxxx News Service, Associated Press or comparable
national news service or in a document publicly filed by the Trust with the
Commission.
(o) In no event shall the adjournment of an annual or special meeting,
or any announcement thereof, commence a new period for the giving of notice as
provided in this Section.
(p) This Section shall not apply to Shareholder proposals made pursuant
to Rule 14a-8 under the Exchange Act.
(q) The chair of any meeting of Shareholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall have the power and duty to determine whether notice of nominees and other
matters proposed to be brought before a meeting has been duly given in the
manner provided in this Section and, if not so given, shall direct and declare
at the meeting that such nominees and other matters are out of order and/or
shall not be considered.
Section 2. Methods of Giving Notice. Whenever, under the provisions of
applicable law or of the Governing Instrument, notice is required to be given
to any Trustee or Shareholder, it shall not, unless otherwise provided herein,
be construed to mean personal notice, but such notice may be given orally in
person, or by telephone (promptly confirmed in writing) or in writing, by mail
addressed to such Trustee at his or her last given address or to such
Shareholder at his address as it appears on the records of the Trust, with
postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
Trustees or members of a committee or sub-committee may also be given by telex,
telegram, facsimile, electronic-mail or via overnight courier. If sent by telex
or facsimile, notice to a Trustee or member of a committee or sub-committee
shall be deemed to be given upon transmittal; if sent by telegram, notice to a
Trustee or member of a committee or sub-committee shall be deemed to be given
when the telegram, so addressed, is delivered to the telegraph company; if sent
by electronic-mail, notice to a Trustee or member of a committee or
sub-committee shall be deemed to be given and shall be presumed valid when the
Trust's electronic-mail server reflects the electronic-mail message as having
been sent; and if sent via overnight courier, notice to a Trustee or member of a
14
committee or sub-committee shall be deemed to be given when delivered against a
receipt therefor.
Section 3. Written Waiver. Whenever any notice is required to be given under
the provisions of applicable law, or of the Governing Instrument, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VI
UNCERTIFICATED SHARES AND SHARE OWNERSHIP
Section 1. Uncertificated Shares. Except as otherwise required by applicable
law, the rules of any exchange on which the Trust is listed or the Governing
Instrument, the Trust shall not issue share certificates and no Shareholder
shall have the right to demand or require that a certificate be issued to him,
her or it.
Section 2. Transfer of Shares. Shares shall be transferable on the records
of the Trust only by the Record Owner thereof or by its agent thereto duly
authorized in writing, upon delivery to the transfer agent of the Trust of a
duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters
(including compliance with any securities laws and contractual restrictions) as
may reasonably be required. Upon such delivery the transfer shall be recorded
on the applicable register of the Trust. Until such record is made, the Record
Owner shall be deemed to be the holder of such Shares for all purposes hereof
and neither the Trustees nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Section 3. Record Owner Book. The Trust shall keep or cause to be kept a
Shareholder book, which may be maintained by means of computer systems,
containing the names, alphabetically arranged, of all persons who are Record
Owners of the Trust, showing their places of residence, the number and class of
any Shares held by them, respectively, and the dates when they became the
record owners thereof.
Section 4. Registered Shareholders. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall contain the names and addresses of the Shareholders
and the Shares held by each Shareholder. 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 the identity of the Shareholders and as to the number of
Shares of the Trust held from time to time by each Shareholder. The Trust shall
be entitled to recognize the exclusive right of a person registered on its
books as the owner of Shares to receive dividends, and to vote as such owner,
and shall not be bound to recognize any equitable or other claim of interest in
such Share or Shares on the part of any other person, whether or not it shall
have express or other notice hereof. No Shareholder shall be entitled to
receive payment of any distribution or to have notice given to such Shareholder
of any meeting or other action in respect of the Trust until such Shareholder
has given its address and such other information as shall be required to such
officer or agent of the Trust as shall keep the record books of the Trust for
entry thereof.
Section 5. Record Date for Receiving Dividends and Other Actions. In order
that the Trustees may determine the Record Owners entitled to receive payment
of any dividend or other distribution of allotment of any rights, or entitled
to exercise any rights in respect of any
15
change, conversion or exchange of Shares or for the purpose of any other lawful
action (other than the record date for meetings of shareholders as set forth in
Section 13 of Article IV), the Board of Trustees may fix a record date, which
record date (i) shall be set forth in the resolution or resolutions authorizing
the payment of such dividend or other lawful action and (ii) shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Trustees.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Seal. The Trust is not required to have any seal, and the
adoption or use of a seal shall be purely ornamental and be of no legal effect.
The seal, if any, of the Trust may be affixed to any instrument, and the seal
and its attestation may be lithographed, engraved or otherwise printed on any
document with the same force and effect as if it had been imprinted and affixed
manually in the same manner and with the same force and effect as if done by a
Delaware business corporation. The presence or absences of a seal shall have no
effect on the validity, enforceability or binding nature of any document or
instrument that is otherwise duly authorized, executed and delivered.
Section 2. Severability. The provisions of these Bylaws are severable. If
any provision hereof shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of
these Bylaws.
Section 3. Headings. Headings are placed in these Bylaws for convenience of
reference only and in case of any conflict, the text of these Bylaws rather
than the headings shall control.
ARTICLE VIII
INDEMNIFICATION
Section 1. Indemnification.
(a) To the maximum extent permitted by law, the Trust shall indemnify
any person who was or is a party or is threatened to be made a party to, or is
involved as a witness in, any proceeding (other than a proceeding by or in the
right of the Trust) by reason of the fact that such person is or was a Covered
Person, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
proceeding.
(b) To the maximum extent permitted by law, the Trust shall indemnify
any person who was or is a party or is threatened to be made a party to, or is
involved as a witness in, any proceeding by or in the right of the Trust to
procure a judgment in its favor by reason of the fact that such person is or
was a Covered Person, against expenses actually and reasonably incurred by that
person in connection with the investigation, defense or settlement of such
proceeding.
(c) Notwithstanding any provision to the contrary contained herein, no
Covered Person shall be indemnified for any expenses, judgments, fines, amounts
paid in settlement, or other liability or loss arising by reason of disabling
conduct or for any proceedings by such Covered Person against the Trust. The
termination of any proceeding by conviction, or a plea of
16
NOLO CONTENDERE or its equivalent, or an entry of an order of probation prior
to judgment, creates a rebuttable presumption that the person engaged in
disabling conduct.
(d) Notwithstanding the foregoing, with respect to any action, suit or
other proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action, suit
or other proceeding by such indemnitee (1) was authorized by a majority of the
Trustees or (2) was instituted by the indemnitee to enforce his or her rights
to indemnification hereunder in a case in which the indemnitee is found to be
entitled to such indemnification. The rights to indemnification set forth in
these Bylaws shall continue as to a person who has ceased to be a Trustee or
officer of the Trust and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives. No amendment or restatement
of these Bylaws or repeal of any of its provisions shall limit or eliminate any
of the benefits provided to any person who at any time is or was a trustee or
officer of the Trust or otherwise entitled to indemnification hereunder in
respect of any act or omission that occurred prior to such amendment,
restatement or repeal.
Section 2. Advance Payment of Indemnification Expenses. To the maximum
extent permitted by law, the Trust shall advance to any person who was or is a
party or is threatened to be made a party to, or is involved as a witness in,
any proceeding by reason of the fact that such person is or was a Trustee or
officer of the Trust the expenses actually and reasonably incurred by such
person in connection with the defense of such proceeding in advance of its
final disposition. To the maximum extent permitted by law, the Trust may
advance to any person who was or is a party or is threatened to be made a party
to any proceeding by reason of the fact that such person is or was a Covered
Person (other than a Trustee or officer of the Trust) the expenses actually and
reasonably incurred by such person in connection with the defense of such
proceeding in advance of its final disposition. Notwithstanding any provision
to the contrary contained herein, the Trust shall not advance expenses to any
Covered Person (including a Trustee or officer of the Trust) unless:
(a) the Trust has received an undertaking by or on behalf of such
Covered Person that the amount of all expenses so advanced will be paid over by
such person to the Trust unless it is ultimately determined that such person is
entitled to indemnification for such expenses; and
(b) (i) such Covered Person shall have provided appropriate security for
such undertaking; (ii) the Trust shall be insured against losses by reason of
any lawful advance payments; or (iii) either (1) the Trustees, by the vote of a
majority of a quorum of qualifying Trustees (as defined in Section 6 below), or
(2) 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 ultimately
will be found entitled to indemnification.
Section 3. Determination of Entitlement to Indemnification. Any
indemnification required or permitted under this Article VIII (unless ordered
by a court) shall be made by the Trust only as authorized in the specific case
upon a reasonable determination, based upon a review of the facts, that the
Covered Person is entitled to indemnification because (i) he or she is not
liable by reason of disabling conduct, or (ii) in cases where there is no
liability, he or she has not engaged in disabling conduct. Such determination
shall be made by (i) the vote of a majority of a quorum of qualifying Trustees;
or (ii) if there are no such Trustees, or if such Trustees so direct, by
independent legal counsel in a written opinion. Notwithstanding anything to the
contrary in Section 2 of this Article VIII, if a determination that a Covered
Person engaged
17
in disabling conduct is made in accordance with this Section 3, no further
advances of expenses shall be made, and all prior advances, and insurance
premiums paid for by the Trust, if applicable, must be repaid.
Section 4. Contract Rights. With respect to any person who was or is a party
or is threatened to be made a party to, or is involved as a witness in, any
proceeding by reason of the fact that such person is or was a Covered Person,
the rights to indemnification conferred in Section 1 of this Article VIII, and
with respect to any person who was or is a party or is threatened to be made a
party to, or is involved as a witness in, any proceeding by reason of the fact
that such person is or was a Trustee or officer of the Trust, the advancement
of expenses conferred in Section 2 of this Article VIII shall be contract
rights. Any amendment, repeal, or modification of, or adoption of any provision
inconsistent with, this Article VIII (or any provision hereof) shall not
adversely affect any right to indemnification or advancement of expenses
granted to any such person pursuant hereto with respect to any act or omission
of such person occurring prior to the time of such amendment, repeal,
modification, or adoption (regardless of whether the proceeding relating to
such acts or omissions is commenced before or after the time of such amendment,
repeal, modification, or adoption). Any amendment or modification of, or
adoption of any provision inconsistent with, this Article VIII (or any
provision hereof), that has the effect of positively affecting any right to
indemnification or advancement of expenses granted to any such person pursuant
hereto, shall not apply retroactively to any person who was not serving as a
Trustee, officer, employee or agent of the Trust at the time of such amendment,
modification or adoption.
Section 5. Claims.
(a) If (X) a claim under Section 1 of this Article VIII with respect to
any right to indemnification is not paid in full by the Trust within sixty days
after a written demand has been received by the Trust or (Y) a claim under
Section 2 of this Article VIII with respect to any right to the advancement of
expenses is not paid in full by the Trust within thirty days after a written
demand has been received by the Trust, then the Covered Person seeking to
enforce a right to indemnification or to an advancement of expenses, as the
case may be, may at any time thereafter bring suit against the Trust to recover
the unpaid amount of the claim.
(b) If successful in whole or in part in any suit brought pursuant to
Section 5(a) of this Article VIII, or in a suit brought by the Trust to recover
an advancement of expenses (whether pursuant to the terms of an undertaking or
otherwise), the Covered Person seeking to enforce a right to indemnification or
an advancement of expenses hereunder or the Covered Person from whom the Trust
sought to recover an advancement of expenses, as the case may be, shall be
entitled to be paid by the Trust the reasonable expenses (including attorneys'
fees) of prosecuting or defending such suit.
Section 6. Definitions. For purposes of this Article VIII: (a) references to
"Trust" include any domestic or foreign predecessor entity of this Trust in a
merger, consolidation, or other transaction in which the predecessor's
existence ceased upon consummation of the transaction; (b) the term "disabling
conduct" means willful misfeasance, bad faith, gross negligence, or the
reckless disregard of the duties involved in the conduct of the Covered
Person's office with the Trust; (c) the term "expenses" includes, without
limitations, attorneys' fees; (d) the term "proceeding" means any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative; and (e) the term "qualifying Trustee" means
any Trustee who is not an interested person (as defined in the 0000 Xxx) of the
Trust and is not a party to the proceeding.
18
ARTICLE IX
EXECUTION OF INSTRUMENTS, VOTING OF SECURITIES
Section 1. Checks, Notes, Drafts, Etc. So long as the Trust shall employ a
custodian to keep custody of the cash and securities of the Trust, all checks
and drafts for the payment of money by the Trust may be signed in the name of
the Trust by the custodian. Except as otherwise authorized by the Board of
Trustees, all requisitions or orders for the assignment of securities standing
in the name of the custodian or its nominee, or for the execution of powers to
transfer the same, shall be signed in the name of the Trust by the Principal
Executive Officer, the President or a Vice President and by the Principal
Financial Officer or the Treasurer or an Assistant Treasurer. Promissory notes,
checks or drafts payable to the Trust may be endorsed only to the order of the
custodian or its nominee and only by the Principal Executive Officer, the
President, a Vice President, the Principal Financial Officer or the Treasurer
or by such other person or persons as shall be authorized by the Board of
Trustees.
Section 2. Voting of Securities. Unless otherwise ordered by the Board of
Trustees, the Principal Executive Officer, the President or any Vice President
shall have full power and authority on behalf of the Trust to attend and to act
and to vote, or in the name of the Trust to execute proxies to vote, at any
meeting of shareholders of any company in which the Trust may hold stock. At
any such meeting such officer shall possess and may exercise (in person or by
proxy) any and all rights, powers and privileges incident to the ownership of
such stock. The Board of Trustees may by resolution from time to time confer
like powers upon any other person or persons.
ARTICLE X
AMENDMENTS
Section 1. Amendments by Trustees. These Bylaws may be altered or repealed
by the Trustees, without the vote or approval of the Shareholders.
19
Sub-Item 77Q1(a)
DECLARATION OF TRUST, dated as of February 8, 2017, by the individual
trustee identified on the signature page hereto (the "Trustee"). The Trustee
hereby agrees as follows:
1. The trust created hereby (the "Trust") shall be known as "lnvesco
High Income 2024 Target Term Fund" in which name the Trustee may conduct the
business of the Trust, make and execute contracts, and xxx and be sued.
2. The Trustee hereby declares that he will hold the trust estate in
trust for such persons as are or may become entitled to a beneficial interest
in the trust estate. It is the intention of the parties hereto that the Trust
created hereby constitute a statutory trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (S) 380 I ET SEQ., and that this document
constitutes the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust in the
office of the Secretary of State of the State of Delaware. The Trust is hereby
established by the Trustee for the purpose of becoming a registered investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and engaging in such other activities as are necessary, convenient or
incidental thereto.
3. The Trustee intends to appoint additional trustees who will enter
into an amended and restated Agreement and Declaration of Trust to provide for
the contemplated operation of the Trust created hereby. Prior to the execution
and delivery of such amended and restated Agreement and Declaration of Trust,
the Trustee shall not have any duty or obligation hereunder or with respect to
the trust estate, except as set forth herein or as required by law.
4. The following persons be, and they hereby are, elected to the offices
listed opposite their names, each to serve (a) until the first meeting of the
Board of Trustees and until his successor shall have been elected and shall
have qualified, (b) until his death or (c) until he shall have resigned or have
been removed by the Trustee:
Xxxxx Xxxxxx President, Principal Executive Officer and
Treasurer
Xxxxx Xxxxxxxx Vice President and Assistant Treasurer (Principal
Financial Officer)
Xxxx X. Xxxx Secretary and Chief Legal Officer
5. The Trustee and the officers of the Trust are hereby authorized:
(i) to prepare and file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) a
Registration Statement on Form N-2, including any pre -effective or
post-effective amendments to such Registration Statement, relating to the
registration of the securities of the Trust under the Securities Act of 1933,
as amended (the "1933 Act") and the 1940 Act, (b) a Registration Statement on
Form 8-A (including any pre-effective or post -effective amendments thereto)
relating to the registration of the securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), (c) the
Notification of Registration on Form N-8A relating to the registration of the
Trust under the 1940 Act, and (d) any additional filing, including any filings
under Rule 462(b) of the 1933 Act, request, report or application or amendment
thereto with the Commission that may be required from time to time under the
1940 Act, the 1933 Act or the 1934 Act, and the rules and
regulations promulgated thereunder; (ii) to prepare, execute and file, in each
case on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
securities of the Trust under the securities or "blue sky" laws of such
jurisdictions as the Trustee and officers may deem necessary or desirable;
(iii) to negotiate the terms of, and execute on behalf of the Trust, such
investment advisory agreements and other contracts among the Trust and any
other persons relating to the operation of the Trust or the issuance of the
securities of the Trust, satisfactory to each such party and (iv) to make any
and all necessary filings and to take any and all actions, including, without
limitation, the execution and delivery of any and all documents, amendments,
certificates or other instruments, that they, together with and upon the advice
of counsel, shall deem necessary or advisable to conduct the business of the
Trust, such determination to be conclusively evidenced by the taking of such
actions and steps and the execution and delivery of such documents, amendments,
certificates or other instruments.
6. The number of Trustees initially shall be one (I) and thereafter the
number of Trustees shall be such number as shall be fixed in an amended and
restated Agreement and Declaration of Trust. The sole Trustee may resign upon
acceptance of the trusts by the additional trustees appointed by the sole
Trustee.
7. (a) The Trustee and the officers of the Trust (the "Fiduciary
Indemnified Persons") shall not be liable, responsible or accountable in
damages or otherwise to the Trust, the Trustee or any holder of the Trust's
securities (the Trust and any holder of the Trust's securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Declaration of Trust or by law, except
that the Fiduciary Indemnified Persons shall be liable for any such loss,
damage or claim incurred by reason of the Fiduciary Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Persons reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the trust estate.
8. The Trust shall, to the fullest extent permitted by applicable law,
(a) indemnify and hold harmless each Fiduciary Indemnified Person
from and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by the Fiduciary Indemnified Persons by
reason of the creation, operation or termination of the Trust in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Declaration of
Trust, except that no Fiduciary Indemnified Persons shall be entitled to be
indemnified in
respect of any loss, damage or claim incurred by the Fiduciary Indemnified
Persons by reason of gross negligence or willful misconduct with respect to
such acts or omissions; and
(b) advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding,
from time to time, prior to the final disposition of such claim, demand,
action, suit or proceeding, upon receipt by the Trust of an undertaking by or
on behalf of such Fiduciary Indemnified Persons to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to
be indemnified as authorized in the preceding subsection.
9. The provisions of Section 8 hall survive the resignation or removal
of the Fiduciary Indemnified Persons.
10. The Trust may terminate without issuing any securities at the
election of the sole Trustee.
II. This Declaration of Trust and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State
of Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
/s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx
Sub-Item 77Q1(a)
DELAWARE PAGE 1
THE FIRST STATE
I, XXXXXXX X. XXXXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
STATUTORY TRUST REGISTRATION OF "INVESCO HIGH INCOME 2024 TARGET TERM FUND",
FILED IN THIS OFFICE ON THE EIGHTH DAY OF FEBRUARY, A.D. 2017, AT
5:13 O'CLOCK P.M.
/S/ XXXXXXX X. XXXXXXX
--------------------------------------
XXXXXXX X. XXXXXXX, SECRETARY OF STATE
6310766 8100 SEAL AUTHENTICATION: 202010004
SR# 20170751334 DATE: 02-09-17
YOU MAY VERIFY THIS CERTIFICATE ONLINE
AT XXXX.XXXXXXXX.XXX/XXXXXXX.XXXXX
CERTIFICATE OF TRUST
OF
INVESCO HIGH INCOME 2024 TARGET TERM FUND
This Certificate of Trust of Invesco High Income 2024 Target Term Fund (the
"Trust"), is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware Statutory
Trust Act (12 Del. C. Section 3801 ET SEQ.) (the "Act").
1. Name. The name of the trust formed hereby is Invesco High Income 2024
Target Term Fund.
2. Registered Office: Registered Agent. The business address of the Trust's
registered office in the State of Delaware is 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, New Castle County. The name of the Trust's
registered agent at such address is The Corporation Trust Company.
3. Investment Company. The Trust will be a registered investment company
under the Investment Company Act of 1940, as amended.
4. Effective Date. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
/s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Trustee
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:13 PM 02/08/2017
FILED 05:13 PM 02/08/2017
SRV 20170751334 - File Number 6310766
