ARTICLES OF INCORPORATION
OF
COHEN & STEERS OPPORTUNITY TRUST, INC.
First: (1) The name of the incorporator is Dorris Crawford.
(2) The incorporator's post office address is 32 South Street,
Baltimore, Maryland 21202.
(3) The incorporator is over eighteen years of age.
(4) The incorporator is forming the corporation named in these
Articles of Incorporation under the general laws of the State of Maryland.
Second: The name of the corporation (hereinafter called the "Corporation")
is Cohen & Steers Opportunity Trust, Inc.
Third: The purpose for which the Corporation is formed is to conduct and
carry on the business of an investment company registered under the Investment
Company Act of 1940. The Corporation shall have all of the powers granted to
corporations by the Maryland General Corporation Law now or hereafter in force.
Fourth: The post office address of the principal office of the Corporation
within the State of Maryland is 32 South Street, Baltimore, Maryland 21202, in
care of The Corporation Trust, Incorporated.
The resident agent of the Corporation in the State of Maryland is The
Corporation Trust, Incorporated, 32 South Street, Baltimore, Maryland 21202.
Fifth: (1) The total number of shares of capital stock which the
Corporation shall have authority to issue is One Hundred Million (100,000,000),
all of which shall be Common Stock having a par value of one tenth of one cent
($.001) per share and an aggregate par value of One Hundred Thousand Dollars
($100,000) subject to the following provisions:
(2) The Corporation may issue shares of stock in fractional
denominations to the same extent as its whole shares, and shares in fractional
denominations shall
be shares of stock having proportionately to the respective fractions
represented thereby all the rights of whole shares, including without
limitation, the right to vote, the right to receive dividends and distributions,
and the right to participate upon liquidation of the Corporation, but excluding
the right to receive a stock certificate representing fractional shares.
(3) No holder of any stock of the Corporation shall be entitled to
any preemptive rights except those that the Board of Directors may determine
from time to time.
(4) All persons who shall acquire stock or other securities of the
Corporation shall acquire the same subject to the provisions of these Articles
of Incorporation, as from time to time amended.
Sixth: (1) The Corporation initially shall have two directors. The number
of directors of the Corporation may be changed pursuant to the By-Laws of the
Corporation, but the number of directors shall never be less than the number
prescribed by the Maryland General Corporation Law and shall never be more than
twenty. "The term of office of a director in office at the time of any decrease
in the number of directors shall not be affected as a result thereof. The name
of the initial directors of the Corporation are Robert H. Steers and Martin
Cohen.
(2) Beginning with the first annual meeting of stockholders held
after the initial public offering of the shares of stock of the Corporation (the
"Initial Annual Meeting") the Board of Directors shall be divided into three
classes. Within the limits specified in Section 1 of this Article SIXTH and the
By-Laws of the Corporation, the number of directors in each class shall be
determined by resolution of the Board of Directors. The term of office of the
first class shall expire on the date of the annual meeting of stockholders held
one year after the Initial Annual Meeting. The term of office of the second
class shall expire on the date of the annual meeting of stockholders held two
years after the Initial Annual Meeting. The term of office of the third class
shall expire on the date of the annual meeting of stockholders held three years
after the Initial Annual Meeting. Upon expiration of the term of office of each
class as set forth above, the number of directors in such class, as determined
by the Board of Directors, shall be elected for a term of three
-2-
years to succeed the directors whose terms of office expire. The number of
directorships shall be apportioned among the classes so as to maintain the
classes as nearly equal in number as possible.
(3) A director may be removed only by the affirmative vote of
seventy-five percent (75%) of the votes entitled to be cast for the election of
directors.
Seventh: The following provisions are inserted for the purpose of defining,
limiting and regulating the powers of the Corporation, the Board of Directors
and the stockholders.
(1) The business and affairs of the Corporation shall be managed
under the direction of the Board of Directors which shall have and may exercise
all powers of the Corporation except those powers which are by law, by these
Articles of Incorporation or by the By-Laws conferred upon or reserved to the
stockholders. In furtherance and not in limitation of the powers conferred by
law, the Board of Directors shall have power:
(a) To make, alter and repeal the By-Laws of the Corporation;
(b) To issue and sell, from time to time, shares of any class of the
Corporation's stock in such amounts and on such terms and conditions, and
for such amount and kind of consideration, as the Board of Directors shall
determine;
(c) From time to time to determine the net asset value per share of
the Corporation's stock or to establish methods to be used by the
Corporation's officers, employees or agents for determining the net asset
value per share of the Corporation's stock;
(d) From time to time to determine to what extent and at what times
and places and under what conditions and regulations the accounts, books
and records of the Corporation, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as
conferred by the
-3-
laws of the State of Maryland, unless and until authorized to do so by
resolution of the Board of Directors; and
(e) To classify or to reclassify, from time to time, any unissued
shares of stock of the Corporation, whether now or hereafter authorized, by
setting, changing or eliminating the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications or terms and conditions of or rights to require redemption
of the stock.
(2) Except as provided in Article SIXTH, Section 3 and 4 of this
Article SEVENTH and in Article NINTH, notwithstanding any provision of the
Maryland General Corporation Law requiring a greater proportion than a minority
of the votes of the Corporation's stock entitled to be cast in order to take
over or authorize upon the concurrence of a majority of the aggregate number of
votes entitled to be cast thereon subject to any applicable requirements of the
Investment Company Act of 1940, as in effect from time to time, or rules,
regulations or orders thereunder promulgated by the Securities and Exchange
Commission or any successor thereto.
(3) Notwithstanding any other provisions of these Articles of
Incorporation, the conversion of the Corporation from a "closed-end company" to
an "open-end company" as those terms are defined in Section 5(a)(2) and 5(a)(1),
respectively, of the Investment Company Act of 1940, and any amendment to those
Articles of Incorporation of the Corporation to effect any such conversion,
shall require the affirmative vote of seventy-five percent (75%) of the
outstanding shares of Common Stock of the Corporation. Such affirmative vote
shall be in addition to the vote of the holders of the stock of the Corporation
otherwise required by law or any agreement between the Corporation and any
national securities exchange.
(4) (a) Notwithstanding any other provision of these Articles of
Incorporation, and subject to the exceptions provided in Paragraph (d) of this
Section 4, the types of transactions described in Paragraph (c) of this Section
4 shall require the affirmative vote of seventy-five percent (75%) of the
outstanding shares of Common Stock of the Corporation when a Principal
Shareholder (as defined
-4-
in Paragraph (b) of this Section 4 is a party to the transaction. Such
affirmative vote shall be in addition to the vote of the holders of the stock of
the Corporation otherwise required by law or any agreement between the
Corporation and any national securities exchange.
(b) The term "Principal Shareholder" shall mean any corporation,
person or other entity which is the beneficial owner, directly or indirectly, of
more than five percent (5%) of the outstanding shares of stock of the
Corporation and shall include any affiliate or associate, as such terms are
defined in clause (d) below, of a Principal Shareholder. For the purpose of this
Section 4, in addition to the shares of stock which a corporation, person or
other entity beneficially owns directly, (1) any corporation, person or other
entity shall be deemed to be the beneficial owner of any shares of stock of the
Corporation (A) which it has the right to acquire pursuant to any agreement or
upon exercise of conversion rights or warrants, or otherwise (but excluding
stock options granted by the Corporation) or (B) which are beneficially owned,
directly or indirectly (including shares deemed owned through application of
clause (A) above), by any other corporation, person or entity with which it or
its "affiliate" or "associate" (as defined below) has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or disposing of
stock of the Corporation, or which is its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect from time to time, and (ii) the
outstanding shares of any class of stock of the Corporation shall include shares
deemed owned through application of clauses (A) and (B) above but shall not
include any other shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights or warrants, or otherwise.
(c) This Section 4 shall apply to the following transactions:
(i) The merger, consolidation or statutory share exchange of the
Corporation with or into any Principal shareholder.
(ii) The issuance of any securities of the Corporation to any
Principal Shareholder for cash.
-5-
(iii) The sale, lease or exchange of all or any substantial part of
the assets of the Corporation to any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000, aggregating
for the purpose of such computation all assets sold, leased or exchanged in
any series of similar transactions within a twelve-month period).
(iv) The sale, lease or exchange to the Corporation or any
subsidiary thereof, in exchange for securities of the Corporation, of any
assets of any Principal Shareholder (except assets having an aggregate fair
market value of less than $1,000,000, aggregating for the purposes of such
computation all assets sold, leased or exchanged in any series of similar
transactions within a twelve-month period).
(d) The provisions of this Section 4 shall not be applicable to (i)
any of the transactions described in Paragraph (c) of this Section if the
Continuing Directors of the Corporation (as defined below) shall by resolution
have approved a memorandum of understanding with such Principal Shareholder with
respect to and substantially consistent with such transaction, of (ii) any such
transaction with any corporation of which a majority of the outstanding shares
of all classes of stock normally entitled to vote in elections of directors is
owned of record or beneficially by the Corporation and its subsidiaries. A
"Continuing Director" is a Director who (i) was a Director on the date of the
closing of the initial public offering of the Corporation's Common Stock or (ii)
subsequently became a Director and whose election, or nomination for election by
the Corporation's stockholders, was approved by a vote of a majority of the
Continuing Directors than on the Board of Directors.
(e) The Board of Directors shall have the power and duty to
determine for the purposes of this Section 4 on the basis of information known
to the Corporation, whether (i) a corporation, person or entity beneficially
owns more than five percent (5%) of the outstanding shares of any class of stock
of the Corporation, (ii) a corporation, person or entity is an "affiliate" or
"associate" (as defined above) of another, (iii) the assets being acquired or
leased to or by the Corporation, or any subsidiary thereof, constitute a
substantial part of the
-6-
assets of the Corporation and have an aggregate fair market value of less than
$1,000,000, and (iv) the memorandum of understanding referred to in Paragraph
(d) hereof is substantially consistent with the transaction covered thereby. Any
such determination shall be conclusive and binding for all purposes of this
Article.
(5) Any determination made in good faith by or pursuant to the
direction of the Board of Directors, as to the amount of the assets, debts,
obligations, or liabilities of the Corporation, as to the amount of any reserves
or charges set up and the propriety thereof, as to the time of or purpose for
creating such reserves of charges, as to the use, alteration or cancellation of
any reserves or charges (whether or not any debt, obligation or liability for
which such reserves or charges shall have been created shall have been paid or
discharged), as to the value of or the method of valuing any investment owned or
held by the Corporation, as to the market value or fair value of any investment
or fair value of any other asset of the Corporation, as to the number of shares
of the Corporation outstanding, as to the estimated expense to the Corporation,
in connection with purchases of its shares, as to the ability to liquidate
investments in an orderly fashion, or as to any other matters relating to the
issue, sale, purchase or other acquisition or disposition of investments or
shares of the Corporation, shall be final and conclusive and shall be binding
upon the Corporation and all holders of its shares, past, present and future,
and shares of the Corporation are issued and sold on the condition and
understanding that any and all such determinations shall be binding as
aforesaid.
(6) The liquidation or dissolution of the Corporation shall require
the affirmative vote of the holders of seventy-five percent (75%) of the votes
entitled to be cast, provided that if a majority of the Continuing Directors
shall have approved the liquidation or dissolution of the Corporation, such
action shall require the affirmative vote of a majority of the votes entitled to
be cast.
Eighth: (1) To the fullest extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation Law, no
director or officer of the Corporation shall have any personal liability to the
Corporation or its shareholders
-7-
for damages. This limitation on liability applies to events occurring at the
time a person serves as a director or officer of the Corporation whether or not
such person is a director or officer at the time of any proceeding in which
liability is asserted.
(2) The Corporation shall indemnify and advance expenses to its
currently acting and its former directors to the fullest extent that
indemnification of directors is permitted by the Maryland General Corporation
Law. The Corporation shall indemnify and advance expenses to its officers to the
same extent as its directors and to such further extent as is consistent with
law. The Board of Directors may by By-Law, resolution or agreement make further
provisions for indemnification of directors, officers, employees and agents to
the fullest extent permitted by the Maryland General Corporation Law.
(3) No provision of this Article EIGHTH shall be effective to
protect or purport to protect any director or officer of the Corporation against
any liability to the Corporation or its security holders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct to his
office.
(4) References to the Maryland General Corporation Law in this
Article EIGHTH are to that law as from time to time amended. No amendment to
these Articles of Incorporation of the Corporation or repeal of any of its
provisions shall affect any right or benefit provided to any person under this
Article EIGHTH based on any event, omission or proceeding prior to the amendment
or repeal.
Ninth: (1) The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Articles of Incorporation or in any
amendment hereto in the manner now or hereafter prescribed by the laws of the
State of Maryland, including any amendment which alters the contract rights, as
expressly set forth in these Articles of Incorporation, of any outstanding
stock, and all rights conferred upon stockholders herein are granted subject to
this reservation.
(2) Notwithstanding Section 1 of this Article NINTH or any other
provisions of these Articles of Incorporation, no amendment to these Articles of
Incorporation of the Corporation shall amend, alter, change
-8-
or repeal any of the provisions of Article SIXTH, Sections 3 and 4 of Article
SEVENTH and this Article NINTH unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative vote of seventy-five
percent (75%) of the outstanding shares of Common Stock of the Corporation. Such
affirmative vote shall be in addition to the vote of the holders of the stock of
the Corporation otherwise required by law or any agreement between the
Corporation and any national securities exchange.
IN WITNESS WHEREOF, the undersigned, being the incorporator of the
Corporation, has adopted and signed these Articles of Incorporation for the
purpose of forming the corporation described herein pursuant to the Maryland
General Corporation Law and does hereby acknowledge that said adoption and
signing are his act.
Dorris Crawford
------------------------
Dorris Crawford
Dated: September 4, 1992
-9-
COHEN & STEERS TOTAL RETURN REALTY FUND, INC.
ARTICLES OF AMENDMENT
COHEN & STEERS TOTAL RETURN REALTY FUND, INC., a Maryland
corporation having its principal office in the State of Maryland in the City of
Baltimore (hereinafter called the "Corporation"), certifies that:
First: The Articles of Incorporation of the Corporation are hereby
amended by striking out the phrase "seventy-five percent (75%)" in Section 3 of
Article SEVENTH and inserting in lieu thereof the phrase "sixty-six and
two-thirds percent (66-2/3%)."
Second: The Amendment of the Articles of Incorporation of the
Corporation as set forth above has been advised by the Board of Directors and
approved by the sole stockholder of the Corporation.
The undersigned President of Cohen & Steers Total Return Realty
Fund, Inc. has caused these Articles of Amendment to be signed in its name and
on its behalf by its duly authorized officers who acknowledge that these
Articles of Amendment are the act of the Corporation, that to the best of their
knowledge, information and belief all matters and facts set forth herein
relating to the authorization and approval of these Articles of Amendment are
true in all material respects and that this statement is made under the
penalties of perjury.
IN WITNESS WHEREOF, these Articles of Amendment have been executed
on behalf of Cohen & Steers Total Return Realty Fund, Inc. this 15th day of
September, 1993.
COHEN & STEERS TOTAL
RETURN REALTY FUND, INC.
By: Martin Cohen
----------------------------
Martin Cohen
President
Attest:
[Seal]
Robert H. Steers
- ----------------------------
Robert H. Steers
Secretary
-2-
ARTICLES OF AMENDMENT
OF
COHEN & STEERS OPPORTUNITY TRUST, INC.
Changing its name to
COHEN & STEERS TOTAL RETURN REALTY FUND, INC.
Cohen & Steers Opportunity Trust, Inc., a Maryland corporation
having its principal office in the State of Maryland in Baltimore City, Maryland
(hereinafter called the "Corporation"), hereby certifies that:
FIRST: The charter of the Corporation is hereby amended by
striking out Article SECOND of the articles of incorporation and inserting in
lieu thereof the following:
"SECOND: The name of the corporation (hereinafter called the
"Corporation") is Cohen & Steers Total Return Realty Fund, Inc."
SECOND: The foregoing charter amendment was duly approved by a
majority of the entire Board of Directors of the Corporation. No stock entitled
to be voted on the matter was outstanding or subscribed for at the time of
approval.
IN WITNESS WHEREOF, Cohen & Steers Opportunity Trust, Inc. has
caused these Articles of Amendment to be signed in its
name and on its behalf by its President and attested by its Secretary on August
17, 1993.
COHEN & STEERS OPPORTUNITY TRUST, INC.
By: Martin Cohen
-----------------------------------
Martin Cohen
President
Attest:
Robert H. Steers
- --------------------------
Robert H. Steers
Secretary
The UNDERSIGNED President of Cohen & Steers Opportunity Trust,
Inc., who executed on behalf of said Corporation the foregoing Articles of
Amendment of which this certificate is made a part, hereby acknowledges same in
the name and on behalf of said Corporation and further certifies that, to the
best of his knowledge, information and belief all matters and facts set forth
herein with respect to the approval thereof are true in all material respects,
under the penalties of perjury.
Martin Cohen
-----------------------------------
Martin Cohen
President
-2-
CHANGE OF ADDRESS OF RESIDENT AGENT
The Corporation Trust Incorporated hereby submits the following for the purpose
of changing the address of the resident agent for the business entities on the
attached list:
1. The name of the resident agent is The Corporation Trust Incorporated.
2. The old address of the resident agent is:
32 South Street
Baltimore, Maryland 21202
3. The new address of the resident agent is:
300 East Lombard Street
Baltimore, Maryland 21202
4. Notice of the above changes are being sent to the business entities on the
attached list.
5. The above changes are effective when this document is filed with the
Department of Assessments and Taxation.
Kenneth J. Uva
- -------------------------
Kenneth J. Uva
Assistant Secretary