EXHIBIT 1(b)
AGREEMENT AND DECLARATION OF TRUST
OF
THE GABELLI MONEY MARKET FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST (the
"Declaration") is made and entered into as of the date set forth
below by the trustees named hereunder (the "Trustees") for the
purpose of forming a Delaware business trust in accordance with
the provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a
Certificate of Trust be filed with the Office of the Secretary of
State of the State of Delaware and do hereby declare that all
money and property contributed to the trust established hereby
shall be held and managed in trust for the benefit of the holders
from time to time of beneficial interest issued hereunder and
subject to the provisions hereof, to wit:
ARTICLE I
Name and Definitions
Section 1. Name. The name of the trust established hereby
(the "Trust") is "The Gabelli Money Market Funds", and, insofar as
may be practicable, the Trustees shall conduct the Trust's
activities, execute all documents and xxx or be sued under that
name, which name (and the word "Trust" wherever herein used) shall
refer to the Trustees as trustees, and not as individuals, or
personally, and shall not refer to the officers, agents, employees
or Shareholders of the Trust. If the Trustees determine that the
Trust's use of such name is not advisable or if the Trust is
required to discontinue the use of such name pursuant to Article
VIII, Section 9 hereof, then subject to that section the Trustees
may adopt such other name for the Trust as they deem proper and
the Trust may hold its property and conduct its activities under
such other name.
Section 2. Definitions. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established hereby, by whatever name it be known, inclusive of
each and every Series established hereunder;
(b) The "Trust Property" means any and all assets and
property, real or personal, tangible or intangible, which are
owned or held by or for the account of the Trust or the Trustees,
including without limitation the rights referenced in Article
VIII, Section 9 hereof;
(c) "Trustee(s)" refers to the person(s) who have signed
this Declaration, so long as such person(s) continue in office in
accordance with the terms hereof, and all other persons who may
from time to time be duly elected or appointed to serve on the
Board of Trustees in accordance with the provisions hereof, and
reference herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as trustees hereunder;
(d) "Shares" means the units of beneficial interest into
which the beneficial interest in the Trust and each Series of the
Trust shall be divided from time to time and includes fractions of
Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding
Shares:
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and
other entities, whether or not legal entities, and governments and
agencies and political subdivisions thereof, whether domestic or
foreign;
(g) The "1940 Act" refers to the Investment Company Act of
1940 and the rules and regulations thereunder, all as amended from
time to time and any orders thereunder which may from time to time
be applicable to the Trust;
(h) The terms "Commission" and "Principal Underwriter"
shall have the meanings given them in the 1940 Act;
(i) "Declaration" shall mean this Agreement and Declaration
of Trust, as amended and in effect from time to time. Reference
in this Declaration of Trust to "Declaration," "hereof," "herein,"
"hereby" and "hereunder" shall be deemed to refer to this
Declaration rather than the article or section in which such words
appear;
(j) "By-Laws" shall mean the By-Laws of the Trust referred
to in Article IV, Section 3 hereof, as amended from time to time
and incorporated herein by reference;
(k) The term "Interested Person" has the meaning given it
in Section 2(a)(19) of the 1940 Act;
(1) "Investment Manager" means a party furnishing services
to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof; and
(m) "Series" refers to each Series of the Trust established
and designated under or in accordance with the provisions of
Article III hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company registered under
the 1940 Act through one or more Series investing primarily in
securities.
ARTICLE III
Shares of Beneficial Interest
Section 1. Description of Shares. The beneficial interest
in the Trust shall at all times be divided into an unlimited
number of transferable units to be called Shares of Beneficial
Interest, each with a par value of one tenth of one cent ($.001).
The Trustees may, from time to time, authorize the division of
Shares into separate Series and the division of Series into
separate classes of Shares, as they deem necessary and desirable.
The different Series shall be established and designated, and the
variations in the relative rights and preferences as between the
different Series shall be fixed and determined, by the Trustees,
without the requirement of Shareholder approval. If only one or
no Series (or classes) shall be established, the Shares shall have
the rights and preferences provided for herein and in Article III,
Section 6 hereof to the extent relevant and not otherwise provided
for herein, and all references to Series (and classes) shall be
construed (as the context may require) to refer to the Trust.
Subject to the provisions of Section 6 of this Article
III, each Share shall have voting rights as provided in Article V
hereof and in the By-Laws, and holders of the Shares of any Series
shall be entitled to receive dividends, when, if and as declared
with respect thereto in the manner provided in Article VI, Section
1 hereof. No Shares shall have any priority or preference over
any other Share of the same Series with respect to dividends or
distributions upon termination of the Trust or of such Series made
pursuant to Article VIII, Section 2 hereof. All dividends and
distributions shall be made ratably among all Shareholders of a
particular (class of a particular) Series from the assets held
with respect to such Series according to the number of Shares of
such (class of such) Series held of record by such Shareholder on
the record date for any dividend or distribution or on the date of
termination, as the case may be. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust or any Series. The Trustees
may from time to time divide or combine the Shares of any
particular Series into a greater or lesser number of Shares of
that Series without thereby materially changing the proportionate
beneficial interest of the Shares of that Series in the assets
held with respect to that Series or materially affecting the
rights of Shares of any other Series.
. The number of authorized Shares and the number of
Shares of each Series that may be issued is unlimited. The
Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series into one or
more Series that may be established and designated from time to
time. The Trustees may hold as treasury Shares, reissue for such
consideration and on such terms as they may determine, or cancel,
at their discretion from time to time, any Shares of any Series as
reacquired by the Trust.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or of a transfer or
similar agent for the Trust, which books shall be maintained
separately for the Shares of each Series (or class). No
certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time
to time. The Trustees may make such rules as they consider
appropriate for the transfer of Shares of each Series (or class)
and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as the case may be, shall
be conclusive as to who are the Shareholders of each Series (or
class) and as to the number of Shares of each Series (or class)
held from time to time by each.
Section 3. Investments in the Trust; Consideration.
Investments may be accepted by the Trust from such Persons, at
such times, on such terms, and for such consideration as the
Trustees from time to time may determine (or for no consideration
if pursuant to a Share dividend or split-up). All Shares when
issued on the terms determined by the Trustees shall be fully paid
and non-assessable.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving
only the rights provided in this instrument. Every Shareholder by
virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the
existence 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 entitles such representative only to
the rights of said deceased Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title
in or to the whole or any part of the Trust Property or right to
call for a partition or division of the same or for an accounting,
nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind
personally any Shareholders, nor, except as specifically provided
herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder
may at any time personally agree to pay.
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares. Notwithstanding any other provisions of this
Declaration and without limiting the power of the Board of
Trustees to amend the Declaration as provided elsewhere herein,
the Board of Trustees shall have the power to amend this
Declaration, at any time and from time to time, in such manner as
the Board of Trustees may determine in their sole discretion,
without the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provisions relating to the Shares
contained in this Declaration, provided that before adopting any
such amendment without Shareholder approval the Board of Trustees
shall determine that it is consistent with the fair and equitable
treatment of all Shareholders or that Shareholder approval is not
otherwise required by the 1940 Act or other applicable law. If
Shares have been issued, Shareholder approval shall be required to
adopt any amendments to this Declaration which would adversely
affect to a material degree the rights and preferences of the
Shares of any Series (or class) or to increase or decrease the par
value of the Shares of any Series (or class).
Subject to this Section 5, the Board of Trustees may
amend the Declaration of Trust to amend any of the provisions set
forth in paragraphs (a) through (i) of Section 6 of this Article
III.
Section 6. Establishment and Designation of Series. The
establishment and designation of any Series (or class) shall be
effective upon the execution by a majority of the Trustees of an
instrument setting forth such establishment and designation and
the relative rights and preferences of the Shares of such Series
(or class), or as otherwise provided in such instrument. At any
time that there are no Shares outstanding of any particular Series
(or class) previously established and designated the Trustees may
by an instrument executed by a majority of their number abolish
that Series (or class) and the establishment and designation
thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration.
Shares of each Series (or class) established pursuant
to this Section 6, unless otherwise provided in the resolution
establishing such Series, shall have the following relative rights
and preferences:
(a) Assets Held With Respect to a Particular Series. All
consideration received by the Trust for the issuance or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived from
the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from
the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets
held with respect to" that Series. In the event that there are any
assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with
respect to any particular Series (collectively "General Assets"),
the Trustees shall allocate such General Assets to, between or
among any one or more of the Series in such manner and on such
basis as the Trustees, in their sole discretion, deem fair and
equitable, and any General Assets so allocated to a particular
Series shall be held with respect to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon
the Shareholders of all Series for all purposes.
(b) Liabilities Held With Respect to a Particular Series.
The assets of the Trust held with respect to each particular
Series shall be charged against the liabilities of the Trust held
with respect to that Series and all expenses, costs, charges and
reserves attributable to that Series, and any general liabilities
of the Trust which are not readily identifiable as being held with
respect to any particular Series shall be allocated and charged by
the Trustees to and among any one or more of the Series in such
manner and on such basis as the Trustees in their sole discretion
deem fair and equitable. The liabilities, expenses, costs,
charges, and reserves so charged to a Series are herein referred
to as "liabilities held with respect to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves
by the Trustees shall be conclusive and binding upon the holders
of all Series for all purposes. All Persons who have extended
credit which has been allocated to a particular Series, or who
have a claim or contract which has been allocated to any
particular Series, shall look, and shall be required by contract
to look exclusively, to the assets of that particular Series for
payment of such credit, claim or contract. In the absence of an
express contractual agreement so limiting the claims of such
creditors, claimants and contract providers, each creditor,
claimant and contract provider will be deemed nevertheless to have
impliedly agreed to such limitation unless an express provision to
the contrary has been incorporated in the written contract or
other document establishing the claimant relationship.
(c) Dividends, Distributions Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or
distribution including, without limitation, any distribution paid
upon termination of the Trust or of any Series (or class) with
respect to, nor any redemption or repurchase of, the Shares of any
Series (or class) shall be effected by the Trust other than from
the assets held with respect to such Series, nor, except as
specifically provided in Section 7 of this Article III, shall any
Shareholder of any particular Series otherwise have any right or
claim against the assets held with respect to any other Series
except to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series. The
Trustees shall have 7 full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be
treated as income or capital gains and which items shall be
treated as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a
matter shall vote separately by Series (and, if applicable, by
class): that is, the Shareholders of each Series (or class) shall
have the right to approve or disapprove matters affecting the
Trust and each respective Series (or class) as if the Series (or
class) were separate companies. There are, however, two
exceptions to voting by separate Series (or classes). First, if
the 1940 Act requires all Shares of the Trust to be voted in the
aggregate without differentiation between the separate Series (or
classes), then all the Trust's Shares shall be entitled to vote on
a one-vote-per-Share basis. Second, if any matter affects only
the interests of some but not all Series (or classes), then only
the Shareholders of such affected Series (or classes) shall be
entitled to vote on the matter.
(e) Equality. All the Shares of each particular Series
shall represent an equal proportionate interest in the assets held
with respect to that Series (subject to the liabilities held with
respect to that Series and such rights and preferences as may have
been established and designated with respect to classes of Shares
within such Series), and each Share of any particular Series shall
be equal to each other Share of that Series.
(f) Fractional Shares. Any fractional Share of a Series
shall carry proportionately all the rights and obligations of a
whole share of that Series, including rights with respect to
voting, receipt of dividends and distributions, redemption of
Shares and termination of the Trust.
(g) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series
shall have the right to exchange said Shares for Shares of one or
more other Series of Shares in accordance with such requirements
and procedures as may be established by the Trustees.
(h) Combination of Series. The Trustees shall have the
authority, without the approval of the Shareholders of any Series
unless otherwise required by applicable law, to combine the assets
and liabilities held with respect to any two or more Series into
assets and liabilities held with respect to a single Series.
(i) Elimination of Series. At any time that there are no
Shares outstanding of any particular Series (or class) previously
established and designated, the Trustees may by resolution of a
majority of the then Trustees abolish that Series (or class) and
rescind the establishment and designation thereof.
Section 7. Indemnification of Shareholders. If any
Shareholder or former Shareholder shall be exposed to liability by
reason of a claim or demand relating to his or her being or having
been a Shareholder, and not because of his or her acts or
omissions, the Shareholder or former Shareholder (or his or her
heirs, executors, administrators, or other legal representatives
or in the case of a corporation or other entity, its corporate or
other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust against all
loss and expense arising from such claim or demand.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of
Trustees constituting the Board of Trustees shall be fixed from
time to time by a written instrument signed, or by resolution
approved at a duly constituted meeting, by a majority of the Board
of Trustees, provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than fifteen (15). The
Board of Trustees, by action of a majority of the then Trustees at
a duly constituted meeting, may fill vacancies in the Board of
Trustees or remove Trustees with or without cause. Each Trustee
shall serve during the continued lifetime of the Trust until he
dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner, until the
next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his
successor. Any Trustee may resign at any time by written
instrument signed by him and delivered to any officer of the Trust
or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some
other time. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee resigning and no Trustee
removed shall have any right to any compensation for any period
following his resignation or removal, or any right to damages on
account of such removal. The Shareholders may fix the number of
Trustees and elect Trustees at any meeting of Shareholders called
by the Trustees for that purpose. Any Trustee may be removed at
any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares of the Trust. A meeting of Shareholders for
the purpose of electing or removing one or more Trustees may be
called (i) by the Trustees upon their own vote, or (ii) upon the
demand of Shareholders owning 10% or more of the Shares of the
Trust in the aggregate.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal or
incapacity of one or more Trustees, or all of them, shall not
operate to annul the Trust or to revoke any existing agency
created pursuant to the terms of this Declaration. Whenever a
vacancy in the Board of Trustees shall occur, until such vacancy
is filled as provided in Article IV, Section 1, 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 Declaration. As conclusive evidence of
such vacancy, a written instrument certifying the existence of
such vacancy may be executed by an officer of the Trust or by a
majority of the Board of Trustees. In the event of the death,
declination, resignation, retirement, removal or incapacity of all
the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint
additional Trustees to fill vacancies, the Trust's Investment
Manager(s) are empowered to appoint new Trustees subject to the
provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this
Declaration, the business of the Trust shall be managed by the
Board of Trustees, and such Board 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. Without limiting the foregoing, the Trustees may: (i)
adopt By-Laws not inconsistent with this Declaration providing for
the regulation and management of the affairs of the Trust and may
amend and repeal them to the extent that such By-Laws do not
reserve that right to the Shareholders; (ii) fill vacancies in the
Board of Trustees or remove Trustees from such Board, and may
elect and remove such officers and appoint and terminate such
agents as they consider appropriate; (iii) appoint from their own
number and establish and terminate one or more committees
consisting of one or more Trustees which may exercise the powers
and authority of the Board of Trustees to the extent that the
Trustees determine; (iv) employ one or more custodians of the
assets of the Trust and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a
system or systems for the central handling of securities or with a
Federal Reserve Bank, retain a transfer agent or a shareholder
servicing agent, or both, and employ such other persons as the
Trustees may deem desirable for the transaction of business of the
Trust or any Series; (v) provide for the issuance, sale and
distribution of Shares by the Trust directly or through one or
more Principal Underwriters or otherwise; (vi) redeem, repurchase,
retire, cancel, acquire, hold, resell, reissue, classify,
reclassify, and transfer and otherwise deal in Shares pursuant to
applicable law; (vii) set record dates for the determination of
Shareholders with respect to various matters; (viii) declare and
pay dividends and distributions to Shareholders of each Series
from the assets of such Series; (ix) collect all property due to
the Trust, pay all claims, including taxes, against the Trust
Property, prosecute, defend, compromise or abandon any claims
relating to the Trust Property, foreclose any security interest
securing any obligations by virtue of which any property is owned
to the Trust, enter into releases, agreements and other
instruments; (x) incur and pay any expenses which, in the opinion
of the Trustees, are necessary or incidental to carry out any of
the purposes of this Declaration, and pay reasonable compensation
from the funds of the Trust to themselves as trustees; (xi) engage
in and prosecute, defend, compromise, abandon, or adjust, by
arbitration or otherwise, any actions, suits proceedings,
disputes, claims and demands relating to the Trust or the Trust
Property, and, pay or satisfy any debts, claims or expenses
incurred in connection therewith, including those of litigation;
(xii) indemnify any person with whom the Trust has dealings,
including the Shareholders, Trustees, officers, employees, agents,
Investment Managers; or Principal Underwriters of the Trust, to
the extent permitted by law and not inconsistent with any
applicable provisions of the By-Laws as the Trustees shall
determine; (xiii) determine and change the fiscal year of the
Trust or any Series and the method by which its accounts shall be
kept; (xiv) adopt a seal for the Trust or any Series; and (xv) in
general, delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to any
agent or employee of the Trust or to any such custodian, transfer
or shareholder servicing agent, Investment Manager or Principal
Underwriter. 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 Declaration, the presumption
shall be in favor of a grant of power to the Trustees. Unless
otherwise specified or required by law, any action by the Board of
Trustees shall be deemed effective if approved or taken by a
majority of the Trustees then in office.
Without limiting the foregoing, the Trust or any
Series shall have power and authority:
(a) To invest and reinvest cash, to hold cash uninvested,
and to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, transfer,
exchange, distribute, write options on, lend or otherwise deal in
or dispose of contracts for the future acquisition or delivery of
fixed income or other securities and securities of every nature
and kind, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers'
acceptances and other securities of any kind, issued, created,
guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political
subdivision, agency, or instrumentality thereof, any political
subdivision of the U. S. Government or any foreign government, or
any international instrumentality, or by any bank or saving
institution, or by any corporation or organization organized under
the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of
the Trust; and to exercise any and all rights, powers, and
privileges of ownership or interest in respect of any and all such
investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise
any of said rights, powers, and privileges in respect of any of
said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any
property rights relating to any or all of the assets of the Trust
or any Series;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property;
and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to
such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(d) To exercise powers and right to subscription or
otherwise which in any manner arise out of ownership of
securities:
(e) To hold any security or property in a form not
indicating any trust, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian
or subcustodian or a nominee or nominees or otherwise;
(f) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
issuer of any security which is held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by
such corporation or issuer; and to pay calls or subscriptions with
respect to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate to
them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees shall
deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee
as the Trustees shall deem proper;
(h) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy,
including but not limited to a claim for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the
Trust exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(1) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary or appropriate
for the conduct of the business, including, without limitation,
insurance policies insuring the assets of the Trust or payment of
distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisers, principal underwriters, or
independent contractors of the trust, individually against all
claims and liabilities of every nature arising by reason of
holding Shares, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, principal underwriter, or independent
contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust
would have the power to indemnify such Person against liability;
(m) To adopt, establish and carry out pension, profit-
sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts
as a means of providing such retirement and other benefits, for
any or all of the Trustees, officers, employees and agents of the
Trust; and
(n) To conduct, operate and carry on any other lawful
business and engage in any other lawful business activity which
the Trustees, in their sole and absolute discretion, consider to
be (i) incidental to the business of the Trust as an investment
company, (ii) conducive to or expedient for the benefit or
protection of the Trust or any Series or the Shareholders, or
(iii) calculated in any other manner to promote the interests of
the Trust or any Series or the Shareholders.
The Trust shall not be limited to investing in
obligations maturing before the possible termination of the Trust
or one or more of its Series. The Trust shall not in any way be
bound or limited by any present or future law or custom in regard
to investment by fiduciaries. The Trust shall not be required to
obtain any court order to deal with any assets of the Trust or
take any other action hereunder.
Section 4. 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, as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust,
or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees,
investment adviser or manager, principal underwriter, 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 5. Payment of Expenses by Shareholders. The
Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder, or each Shareholder of any
particular Series, to pay directly, in advance or arrears, for
charges of the Trust's custodian or transfer, Shareholder
servicing or similar agent, an amount fixed from time to time by
the Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of Shares in the account
of such Shareholder by that number of full and/or fractional
Shares which represents the outstanding amount of such charges due
from such Shareholder.
Section 6. Ownership of Assets of the Trust. Title to all
of the assets of the Trust shall at all times be considered as
vested in the Trust, except that the Trustees shall have power to
cause legal title to any Trust Property to be held by or in the
name of one or more of the Trustees, or in the name of the Trust,
or in the name of any other Person as nominee, on such terms as
the Trustees may determine. 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,
removal or death of a Trustee he 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.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be
set forth in the By-Laws, the Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive advisory,
management and/or administrative services for the Trust or for any
Series with any corporation, trust, association or other
organization; and any such contract may contain such other terms
as the Trustees may determine, including without limitation,
authority for the Investment Manager or administrator to determine
from time to time without prior consultation with the Trustees
what investments shall be purchased, held, sold or exchanged and
what portion, if any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's investments, or such
other activities as may specifically be delegated to such party.
(b) The Trustees may also, at any time and from time to
time, contract with any corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor
or Principal Underwriter for the Shares of one or more of the
Series (or classes) or other securities to be issued by the Trust.
Every such contract shall comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such
contract may contain such other terms as the Trustees may
determine.
(c) The Trustees are also empowered, at any time and from
time to time, to contract with any corporations, trusts,
associations or other organizations, appointing it or them the
custodian, transfer agent and/or shareholder servicing agent for
the Trust or one or more of its Series. Every such contract shall
comply with such requirements and restrictions as may be set forth
in the By-Laws or stipulated by resolution of the Trustees.
(d) The Trustees are further empowered, at any time and
from time to time, to contract with any entity to provide such
other services to the Trust or one or more of the Series, as the
Trustees determine to be in the best interests of the Trust and
the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, Investment Manager, adviser, Principal Underwriter,
distributor, or affiliate or agent of or for any corporation,
trust, association, or other organization, or for any parent or
affiliate of any organization with which an advisory, management
or administration contract, or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter by
made, or that any such organization, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory, management or administration
contract or Principal Underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service contract
may have been or may hereafter be made also has an advisory,
management or administration contract, or principal underwriter's
or distributor's contract, or transfer, shareholder servicing or
other service contract with one or more other corporations, trust,
associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee or officer of the Trust from voting upon
or executing the same, or create any liability or accountability
to the Trust or its Shareholders, provided approval of each such
contract is made pursuant to the requirements of the 1940 Act.
ARTICLE V
Shareholders' Voting Powers
Subject to the provisions of Article III, Section
6(d),the Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section
1, and (ii) with respect to such additional matters relating to
the Trust as may be required by this Declaration of Trust, the
By-Laws, the 1940 Act or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each whole Share
shall be entitled to one vote as to any matter on which it is
entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote, except that Shares held in the
Treasury as of the record date, as determined in accordance with
the By-Laws, shall not be voted. There shall be no cumulative
voting in the election of Trustees.
Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law,
this Declaration or the By-Laws to be taken by Shareholders' votes
and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income
Dividends and Distributions. Subject to Article III, Section 6
hereof, the Trustees, in their absolute discretion, may prescribe
and shall set forth in the By-laws or in a duly adopted vote of
the Trustees such bases and time for determining the per Share or
net asset value of the Shares of any Series or net income
attributable to the Shares of any Series, or the declaration and
payment of dividends and distributions on the Shares of any
Series, as they may deem necessary or desirable.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Shareholder for
redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay
therefor the net asset value thereof, in accordance with the
By-Laws and applicable law. Payment for said Shares shall be made
by the Trust to the Shareholder within seven days after the date
on which the request is made in proper form. The obligation set
forth in this Section 2 is subject to the provision that in the
event that any time the New York Stock Exchange (the "Exchange")
is closed for other than weekends or holidays, or if permitted by
the Rules of the Commission during periods when trading on the
Exchange is restricted or during any emergency which makes it
impracticable for the Trust to dispose of the investments of the
applicable Series or to determine fairly the value of the net
assets held with respect to such Series or during any other period
permitted by order of the Commission for the protection of
investors or by the 1940 Act, such obligations may be suspended or
postponed by the Trustees.
Subject to the requirements of the 1940 Act, the
redemption price may in any case or cases be paid wholly or partly
in kind if the Trustees determine that such payment is advisable
in the interest of the remaining Shareholders of the Series for
which the Shares are being redeemed. Subject to the foregoing,
the fair value, selection and quantity of securities or other
property so paid or delivered as all or part of the redemption
price may be determined by or under authority of the Trustees. In
no case shall the Trust be liable for any delay of any corporation
or other Person in transferring securities selected for delivery
as all or part of any payment in kind.
Section 3. Redemptions at the Option of the Trust. The
Trust shall have the right at its option and at any time to redeem
Shares of a Series from any Shareholder at the net asset value
thereof as described in Section 1 of this Article VI: (i) if at
such time, as a result of redemptions of Shares by such
Shareholder, the aggregate net asset value of the Shares in such
Shareholder's account with the particular Series is less than
$1,000 or such other amount no greater than the minimum initial
investment then specified in the Prospectus of the Trust or Series
as the Trustees may from time to time determine; or (ii) to the
extent that such Shareholder owns Shares of a particular Series
equal to or in excess of a percentage of the outstanding Shares of
that Series determined from time to time by the Trustees; or (iii)
to the extent that such Shareholder owns Shares equal to or in
excess of a percentage, determined from time to time by the
Trustees, of the outstanding Shares of the Trust or of any Series.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust, and they may
fix the amount of such compensation. Nothing herein shall in any
way prevent the employment of any Trustee for advisory,
management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability.
The Trustees shall not be responsible or liable in any event for
any neglect or wrong-doing of any officer, agent, employee,
Investment Manager or Principal Underwriter of the Trust, nor
shall any Trustee by responsible for the act or omission of any
other Trustee, and the Trust out of its assets shall indemnify and
hold harmless each and every Trustee from and against any and all
claims and demands whatsoever arising out of or related to each
Trustee's performance of his duties as a Trustee of the Trust;
provided that nothing herein contained shall indemnify, hold
harmless or protect any Trustee from or against any liability to
the Trust or any Shareholder to which he would otherwise be
subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued,
executed or done by or on behalf of the Trust or the Trustees or
any of them in connection with the Trust shall be conclusively
deemed to have been issued, executed or done only in or with
respect to their or his capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 3. Trustee's Good Faith Action; Expert Advice; No
Bond or Surety. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A
Trustee shall be liable to the Trust and to any Shareholder solely
for his own wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the
office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation
of this Declaration, and shall be under no liability for any act
or omission in accordance with such advice nor for failing to
follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with
Trust assets insurance for liability and for all expenses
reasonably incurred or paid or expected to be paid by a Trustee or
officer in connection with any claim, action, suit or proceeding
in which he becomes involved by virtue of his capacity or former
capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with
Trustees. No Person dealing with the Trustees shall be bound to
make any inquiry concerning the validity of any transaction made
or to be made by the Trustees or to see to the application of any
payments made or property transferred to the Trust or upon its
order.
Section 2. Termination of Trust or Series. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by
vote of a majority of the Shares of each Series entitled to vote,
voting separately by Series, or by the Trustees by written notice
to the Shareholders. Any Series may be terminated at any time by
vote of a majority of the Shares of that Series or by the Trustees
by written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the
case may be), after paying or otherwise providing for all charges,
taxes, expenses and liabilities held, severally, with respect to
each Series (or the applicable Series, as the case may be),
whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as
the Trustees consider appropriate, reduce the remaining assets
held, severally, with respect to each Series (or the applicable
Series, as the case may be), to distributable form in cash or
shares or other securities, or any combination thereof, and
distribute the proceeds held with respect to each Series (or the
applicable Series, as the case may be), to the Shareholders of
that Series, as a Series, ratable according to the number of
Shares of that Series held by the several Shareholders on the date
of termination.
Section 3. Merger and Consolidation. The Trustees may
cause (i) the Trust or one or more of its Series to the extent
consistent with applicable law to be merged into or consolidated
with another Trust or company, (ii) the Shares of the Trust or any
Series to be converted into beneficial interests in another
business trust (or series thereof) created pursuant to this
Section 3 of Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent
permitted by law. Such merger or consolidation, Share conversion
or Share exchange must be authorized by vote of a majority of the
outstanding Shares of the Trust, as a whole, or any affected
Series, as may be applicable; provided that in all respects not
governed by statute or applicable law, the Trustees shall have
power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, merger or consolidation including the
power to create one or more separate business trusts to which all
or any part of the assets, liabilities, profits or losses of the
Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series into beneficial interests in
such separate business trust or trusts (or series thereof).
Section 4. Amendments.
(a) This Declaration may be restated and/or amended at any
time by an instrument in writing signed by a majority of the then
Trustees and, if required by applicable law or this Declaration or
the By-Laws, by approval of such amendment by Shareholders in
accordance with Article V hereof and the By-Laws. Any such
restatement and/or amendment hereto shall be effective immediately
upon execution and approval. The Certificate of Trust of the
Trust may be restated and/or amended by a similar procedure, and
any such restatement and/or amendment shall be effective
immediately upon filing with the Office of the Secretary of State
of the State of Delaware or upon such future date as may be stated
therein.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from
personal liability of this Shareholders, trustees, officers,
employees and agents of the Trust or to permit assessments on
Shareholders.
Section 5. Filing of Copies; References; Headings. The
original or a copy of this Declaration and of each restatement
and/or amendment hereto shall be kept at the office of the Trust
where it may be inspected by any Shareholder. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such restatements and/or amendments have
been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original,
may rely on a copy certified by an officer of the Trust to be a
copy of this Declaration or of any such restatements and/or
amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this Declaration.
Whenever the singular number is used herein, the same shall
include the plural; and the neuter, masculine and feminine genders
shall include each other, as applicable. This Declaration may be
simultaneously executed in any number of counterparts each of
which shall be deemed an original, and such counterparts together
shall constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
Section 6. Applicable Law. This Declaration is created
under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the Delaware
Business Trust Act, as amended from time to time (the "Act"). The
Trust shall be a Delaware business trust pursuant to such Act, and
without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any
of such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code of
1986, as amended, or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have
constituted a part of the Declaration of Trust; provided, however,
that such determination shall not affect any of the remaining
provisions of the Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of the Declaration 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 provision in
any other jurisdiction or any other provision of the Declaration
in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Delaware
Business Trust Act, as amended from time to time (the "Act"), and
thereby to create only the relationship of trustee and beneficial
owners within the meaning of such Act between the Trustees and
each Shareholder. It is not-the intention of the Trustees to
create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal
relationship other than a business trust pursuant to such Act.
Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners
or members of a joint stock association.
Section 9. Use of the Name "Gabelli". The name "Gabelli"
and all rights to the use of the name "Gabelli" belong to Gabelli
Funds, Inc. ("Gabelli"), the sponsor of the Trust. Gabelli has
consented to the use by the Trust of the identifying word Gabelli
and has granted to the Trust a non-exclusive license to use the
name Gabelli as part of the name of the Trust and the name of any
Series of Shares. In the event Gabelli or an affiliate of Gabelli
is not appointed as Investment Manager or ceases to be the
Investment Manager of the Trust or of any Series using such names,
the non-exclusive license granted herein may be revoked by Gabelli
and the Trust shall cease using the name Gabelli as part of its
name or the name of any Series of Shares, unless otherwise
consented to by Gabelli or any successor to its interests in such
names.
[The remainder of this page has been
left blank intentionally.]
IN WITNESS WHEREOF, the Trustee named below does
hereby make and enter into this Declaration of Trust as of the
21st day of May, 1992.
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, as Trustee and not individually
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000-0000
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS Xxx Xxxxxxxxx
Xxxxxx, Xxx, Xxx Xxxx 00000-0000.
