EXHIBIT (A)(2)
CGM CAPITAL DEVELOPMENT FUND
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
This AMENDMENT NO. 1 dated as of November 19, 2004 (this "Amendment") is
made by the Trustees that have executed the Amendment below, amending the
Amended and Restated Agreement and Declaration of Trust dated as of January 23,
1997 (the "Agreement") of CGM Capital Development Fund (the "Trust").
Capitalized terms used without definition in this Amendment have the meanings
specified thereof in the Agreement.
WHEREAS, Article VIII, Section 8 of the Agreement provides that the
Agreement may be amended at any time by an instrument in writing signed by a
majority of the then Trustees when authorized to do so by vote of a majority of
the Shares of the Trust entitled to vote;
WHEREAS, the Trustees desire to amend the Agreement as described in
Article VIII, Section 8 thereof to revise Article VII, Section 2; and
WHEREAS, the Trustees have been authorized to enter into this Amendment by
vote of a majority of the Shares of the Trust entitled to vote taken at a
Special Meeting held on November 19, 2004.
NOW, THEREFORE, the undersigned, being a majority of the Trustees of the
Trust do hereby agree as follows:
1. The first paragraph of Article VII, Section 2 of the Agreement is
hereby amended to add the following to the end thereof:
Without limiting the foregoing, the appointment, designation or
identification of any Trustee as (a) a member or chairperson of a
committee or sub-committee of the Trustees or any function of such a
committee or sub-committee, (b) an expert on any topic or in any area
(including an audit committee financial expert), (c) the lead or head
independent Trustee, or any other special appointment, designation or
identification of a Trustee (any of the foregoing referred to in (a), (b),
or (c), a "Special Appointment"), shall not impose on that person any
duty, obligation or liability that is greater than the duties, obligations
and liabilities imposed on that person as a Trustee in the absence of the
Special Appointment (except that the foregoing limitation shall not apply
to duties expressly imposed pursuant to the By-Laws, a charter of a
committee or sub-committee of the Board of Trustees or a vote of the Board
of Trustees), and no Trustee who has special skills or expertise, or is
appointed, designated or identified as aforesaid, shall be held to a
higher standard of care by virtue thereof. In addition, no Special
Appointment of a Trustee shall affect in any way that Trustee's rights or
entitlement to indemnification under Article 4 of the By-Laws or otherwise
by the Trust.
2. This Amendment may be executed in several counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument notwithstanding all of the parties have not signed the original or
the same counterpart.
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IN WITNESS WHEREOF, we have hereunto set our hands for ourselves and for
our successors and assigns as of the date first above written.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx XxxXxxx
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Xxxxx X. Xxxxx, as Trustee and not Xxxxxxx XxxXxxx, as Trustee and not
individually individually
/s/ G. Xxxxxxx Xxxxxxx /s/ Xxxxx Xxx Xxxx Xxxxxxx, Jr.
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G. Xxxxxxx Xxxxxxx, as Trustee and Xxxxx Xxx Xxxx Xxxxxxx, Jr., as
not individually Trustee and not individually
/s/ Xxxx X. Xxxxxxx /s/ X. Xxxx Xxxxxxxxxx
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Xxxx X. Xxxxxxx, as Trustee and X. Xxxx Xxxxxxxxxx, as Trustee and
not individually not individually
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as Trustee and not
individually
