Exhibit 4.11
DECLARATION OF TRUST
OF
GBL TRUST II
THIS DECLARATION OF TRUST is made as of December 5, 2001 (this
"Declaration of Trust"), by and among Gabelli Asset Management Inc., a New
York corporation, as sponsor (the "Sponsor"), The Bank of New York, as
trustee (the "Property Trustee"), The Bank of New York (Delaware), as
trustee (the "Delaware Trustee"), and Xxxxxxx X. Xxxxxxxx, Xxxxxx X.
Xxxxxxx, and Xxxxxx X. Xxxxxxx, Xx., as trustees (each an "Administrative
Trustee" and collectively, the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee, the Administrative Trustees being
hereinafter collectively referred to as the "Trustees"). The Sponsor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as GBL Trust II (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts,
and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. It is the intention of the parties hereto that
the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. xx.xx. 3801, et seq. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of
State in accordance with the provisions of the Business Trust Act.
3. An amended and restated Declaration of Trust satisfactory to
each party to it, in such form as the parties thereto may approve, will be
entered into to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended
and restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to such execution and delivery any licenses, consents or approvals required
by applicable law or otherwise. Notwithstanding the foregoing, the Trustees
may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) a Registration Statement (the "1933
Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust, (b) any prospectus or supplement thereto relating
to the Preferred Securities of the Trust required to be filed pursuant to
the 1933 Act, and (c) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) if and at such time as determined by
the Sponsor, to file with the New York Stock Exchange or other exchange, or
the National Association of Securities Dealers ("NASD"), and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities of the Trust to be
listed on the New York Stock Exchange or such other exchange, or the NASD's
Nasdaq National Market; (iii) to file and execute on behalf of the Trust,
such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents that shall be necessary or desirable to register the Preferred
Securities of the Trust under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred
Securities of the Trust; and (v) to execute, deliver and perform on behalf
of the Trust an underwriting agreement with one or more underwriters
relating to the offering of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section
4 is required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, the NASD, or state securities or "Blue
Sky" laws to be executed on behalf of the Trust by the Trustees, each
Administrative Trustee, in his capacity as a trustee of the Trust, is
hereby authorized to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that each
Administrative Trustee, in his capacity as a trustee of the Trust, shall
not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, the NASD, or
state securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be five and
thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the
Sponsor which may increase or decrease the number of trustees of the Trust;
provided, however, that to the extent required by the Business Trust Act,
one trustee of the Trust shall either be a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has
its principal place of business in the State of Delaware. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
trustee of the Trust at any time. Any trustee of the Trust may resign upon
thirty days' prior notice to the Sponsor.
7. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
8. The Sponsor hereby agrees to indemnify the Trustees and any of
the officers, directors, employees and agents of the Trustees (the
"Indemnified Persons") for, and to hold each Indemnified Person harmless
against, any liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
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.
GABELLI ASSET MANAGEMENT INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
as Property Trustee
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: President
Xxxxxxx X. Xxxxxxxx,
as Administrative Trustee
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx,
as Administrative Trustee
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx.,
as Administrative Trustee
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.
