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HTR > SEC Filings for HTR > Form 8-K on 26-Nov-2013All Recent SEC Filings




Amendments to Articles of Inc. or Bylaws; Change in Fiscal Year,

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On November 21, 2013, the Board of Directors (the "Board") of Brookfield Total Return Fund Inc., a Maryland corporation (the "Fund"), approved and adopted amendments (the "Amendments") to the Bylaws of the Fund. The Amendments were effective as of November 21, 2013.

The following is a summary of changes effected by adoption of the Amendments, which is qualified in its entirety by reference to the Amended and Restated Bylaws of the Fund, which are attached hereto as Exhibit 3.1 and are incorporated herein by reference. In addition to the amendments described below, the Amendments include certain changes to (a) clarify language,
(b) enhance consistency with Maryland law, (c) make various technical corrections and non-substantive changes and (d) clarify and modernize certain corporate procedures.

Special Meetings of Stockholders. The Amendments provide procedures and informational requirements for stockholder-requested special meetings that address (a) delivery and contents of the initial notices from stockholders requesting a special meeting, (b) fixing of a record date for determining stockholders entitled to request a special meeting and stockholders entitled to notice of and to vote at the meeting, (c) revocation of requests for stockholder-requested special meetings and (d) verification of the validity of a stockholder request for a special meeting. Additionally, the Amendments increase the threshold for stockholders required to request a special meeting from 25 percent to a majority of all votes entitled to be cast at the meeting, as is permitted by the Maryland General Corporation Law (the "MGCL").

Notice of Meetings of Stockholders. The Amendments (a) provide for "householding" of notices, as permitted by the MGCL and federal proxy rules,
(b) provide for notice by electronic means, such as email, (c) provide that a minor irregularity in a notice of a stockholders meeting will not affect the validity of the meeting, and (d) clarify the power of the Fund to cancel or postpone a stockholders meeting by public announcement (i.e., a press release or a filing with the U.S. Securities and Exchange Commission).

Organization and Conduct of Stockholders Meetings. The Amendments establish procedural rules for stockholders meetings and vest broad powers with the chairman of the meeting, including (a) adjourning or concluding the meeting,
(b) determining when and for how long the polls should be open and when the polls should be closed, (c) removing any person who refuses to comply with the meeting procedures and (d) complying with any state or local laws and regulations concerning safety and security.

Quorum; Adjournment and Postponement for Meetings of Stockholders. The Amendments provide that (a) the chairman of the meeting, not the stockholders, has the power to adjourn the meeting and (b) the stockholders present at a meeting which has been duly called and at which a quorum has been established may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave fewer than would be required to establish a quorum.

Advance Notice of Stockholder Nominees for Director and Other Stockholder Proposals. The Amendments provide advance notice provisions for stockholder nominations for directors and stockholder business proposals. The amended provisions require stockholders to notify the secretary of the Fund of Board nominations and other stockholder proposals for annual meetings not earlier than the 150th day and not later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of the preceding year's proxy statement. Additionally, the Amendments provide that a new advance notice period is commenced based on moving the date of the meeting more than 30 days before or after the anniversary of the prior year's meeting.

Furthermore, the Amendments require information to be disclosed by the stockholder making the proposal, any proposed nominees for director and any persons controlling, or acting in concert with, such stockholder (collectively, the "Proponents"), including, among other items, (i) detailed information about each

Proponent's ownership interests in the Fund, (ii) information regarding hedging activities of the Proponents and (iii) each Proponent's investment strategy or objective and any related disclosure document the Proponent has provided to its investors.

Number of Directors. The Amendments provide that the number of directors may not be less than the minimum number of directors required by the MGCL (which is currently one) nor more than 12.

Previously, the provision allowed the Board to set the number of directors, so long as such number was not less than the minimum permitted by Maryland law.

Special Meetings. The Amendments update provisions governing the holding of special Board meetings and changes those entitled to call such a meeting from the chairman of the Board, the president or two or more directors, to the chairman of the Board, the chief executive officer, the president or a majority of the directors then in office.

Notice. The Amendments update provisions governing how and when notices of Board meetings are deemed to be given.

Quorum for Meetings of Directors. The Amendments increase the number of directors necessary for a quorum to a majority of the Board.

Previously, the provision provided that the presence of one-third (but not less than two) of the members of the entire Board was necessary to constitute a quorum.

Vacancies on the Board of Directors. Consistent with the Fund's election to be subject to Section 3-804(c) of the MGCL, the Amendments provide that, except as may be provided by the Board in setting the terms of any class or series of preferred stock, any vacancy on the Board may be filled only by a majority of the remaining directors, even if the remaining directors do not constitute a quorum, and any director elected to fill a vacancy will serve for the remainder of the full term of the class in which the vacancy occurred and until his or her successor is elected and qualifies. The Board's power to fill vacancies remains subject to the limitations of the Investment Company Act of 1940 (the "1940 Act").

Ratification. The Amendments authorize the Board and stockholders to ratify prior actions or inactions by the Fund. Additionally, the Amendments provide that matters questioned in litigation may be ratified and, if so ratified, will bar any claim or execution of any judgment as to such questioned matter.

Emergency Provisions. The Amendments add provisions governing Board meetings and action during emergencies. Specifically, the Amendments provide that during a catastrophe or other similar emergency, if a quorum of the Board may not be readily obtained, a Board meeting may be called by any feasible means at the time and the number of directors constituting a quorum will be one-third of the Board.

Number, Tenure and Qualifications. The Amendments specify that, as permitted by an amendment to the MGCL several years ago, the Board may appoint single-member committees.

Meetings. The Amendments conform committee meeting procedures and consent provisions with the meeting procedures and consent provisions for the full Board.

Fixing of Record Date. The Amendments expressly provide that a meeting of stockholders may be adjourned or postponed to a date not more than 120 days after the original record date, without the need to set a new record date and send a new notice.

Indemnification and Advance of Expenses. The Amendments update provisions mandating indemnification and the advance of expenses for directors and officers to the maximum extent permitted by Maryland law and the 1940 Act. Additionally, the Amendments clarify that a director's or officer's right to indemnification vests immediately upon the election of the director or officer.

Inspection of Records. The Amendments (a) remove provisions relating to stockholders' rights to inspect the Fund's books and records and (b) add a provision limiting a stockholder's right to inspect the Fund's books and records if the Board determines that the stockholder has an improper purpose for requesting such inspection.

Exclusive Forum for Certain Litigation. The Amendments require (unless the Board agrees otherwise) that any of the following four types of litigation be brought in the Circuit Court for Baltimore City, Maryland (or, if that court does not have jurisdiction, the United States District Court for the District of Maryland, Baltimore Division): (a) a derivative lawsuit; (b) an action asserting breach of fiduciary duty; (c) an action pursuant to any provision of the Maryland General Corporation Law; and (d) an action asserting a claim governed by the internal affairs doctrine.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

3.1 Amended and Restated Bylaws of Brookfield Total Return Fund Inc.

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