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XXXXXXX NEW EUROPE FUND, INC.
A Maryland Corporation
AMENDED
AND
RESTATED
BY-LAWS
February 1, 1990
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TABLE OF CONTENTS
Page
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ARTICLE I. NAME OF CORPORATION, LOCATION OF OFFICES AND SEAL................1
Section 1.1. Principal offices............................................1
Section 1.2. Seal ........................................................1
ARTICLE II. STOCKHOLDERS....................................................2
Section 2.1. Annual Meetings..............................................2
Section 2.2. Special Meetings.............................................2
Section 2.3. Notice of Meetings...........................................3
Section 2.4. Notice of Stockholder Business...............................3
Section 2.5. Quorum ......................................................5
Section 2.6. Voting ......................................................6
Section 2.7. Stockholders Entitled to Vote................................6
Section 2.8. Proxies .....................................................7
Section 2.9. Voting and inspectors........................................7
Section 2.10. Action Without Meeting......................................7
ARTICLE III. BOARD OF DIRECTORS.............................................8
Section 3.1. Powers ......................................................8
Section 3.2. Power to Issue and Sell Stock................................8
Section 3.3. Power to Declare Dividends...................................8
Section 3.4. Number and Term..............................................9
Section 3.5. Director Nominations........................................11
Section 3.6. Election....................................................13
Section 3.7. Vacancies and Newly Created Directorships...................13
Section 3.8. Removal ....................................................14
Section 3.9. Annual and Regular Meetings.................................14
Section 3.10. Special Meetings...........................................15
Section 3.11. Waiver of Notice...........................................15
Section 3.12. Quorum and Voting..........................................15
Section 3.13. Action Without a Meeting...................................16
Section 3.14. Compensation of Directors..................................16
ARTICLE IV. COMMITTEES.....................................................17
Section 4.1. Organization................................................17
Section 4.2. Executive Committee.........................................17
Section 4.3. Other Committees............................................17
Section 4.4. Proceedings and Quorum......................................18
ARTICLE V. OFFICERS........................................................18
Section 5.1. General ....................................................18
Section 5.2. Election, Tenure and Qualifications.........................18
Section 5.3. Removal and Resignation.....................................19
Section 5.4. Chairman of the Board.......................................19
Section 5.5. Vice Chairman of the Board..................................20
Section 5.6. President...................................................20
Section 5.7. Vice President..............................................21
Section 5.8. Treasurer and Assistant Treasurers..........................21
Section 5.9. Secretary and Assistant Secretaries.........................22
(i)
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Section 5.10. Subordinate officers.......................................22
Section 5.11. Remuneration...............................................23
Section 5.12. Surety Bonds...............................................23
ARTICLE VI. NET ASSET VALUE................................................24
Section 6.1. Valuation of Assets.........................................24
ARTICLE VII. CAPITAL STOCK.................................................24
Section 7.1. Certificates of Stock.......................................24
Section 7.2. Transfer of Shares..........................................24
Section 7.3. Stock Ledgers...............................................25
Section 7.4. Transfer Agents and Registrars..............................25
Section 7.5. Fixing of Record Date.......................................25
Section 7.6. Lost, Stolen or Destroyed Certificates......................26
ARTICLE VIII. FISCAL YEAR AND ACCOUNTANT...................................27
Section 8.1. Fiscal Year.................................................27
Section 8.2. Accountant..................................................27
ARTICLE IX. CUSTODY OF SECURITIES..........................................28
Section 9.1. Employment of a Custodian...................................28
Section 9.2. Termination of Custodian Agreement..........................28
ARTICLE X. INDEMNIFICATION AND INSURANCE...................................29
Section 10.1. Indemnification of Directors, Officers and Members of
the Advisory Board..................................29
Section 10.2. Insurance of Officers, Directors, Members of the
Advisory Board, Employees and Agents................31
ARTICLE XI. AMENDMENTS......................................................32
Section 11.1. General....................................................32
ARTICLE XII. SPECIAL PROVISIONS............................................33
Section 12.1. Actions Relating to Discount in Price of the
Corporation's Shares................................33
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AMENDED AND RESTATED
BY-LAWS
OF
XXXXXXX NEW EUROPE FUND, INC.
(A MARYLAND CORPORATION)
ARTICLE I.
NAME OF CORPORATION, LOCATION OF
OFFICES AND SEAL
Section 1.1. Principal Offices. The principal office of Xxxxxxx New
Europe Fund, Inc. (the "Corporation") in the State of Maryland shall be located
in Baltimore, Maryland. The Corporation may, in addition, establish and maintain
such other offices and places of business as the Board of Directors may, from
time to time, determine. [MGCL Sec. 2-1081]
Section 1.2. Seal. The corporate seal of the Corporation shall be
circular in form and shall bear the name of the Corporation, the year of its
incorporation, and the word "Maryland". The form of the seal shall be subject to
alteration by the Board of Directors and the seal may be used by causing it or a
facsimile to be impressed or affixed or printed or otherwise reproduced. Any
officer or Director of the Corporation shall have authority to affix the
corporate seal of the Corporation to any document requiring the same. If the
Corporation is required to place its corporate seal to a document, it shall be
sufficient
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1 Statutory references are for convenience only. MGCL = Maryland General
Corporation Law; ICA = Investment Company Act.
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to place the word "(seal)" adjacent to the signature of the person authorized to
sign the document on behalf of the Corporation. [MGCL Sec. 1-304]
ARTICLE II.
STOCKHOLDERS
Section 2.1. Annual Meetings. An annual meeting of stockholders for
the election of Directors and the transaction of such other business as may
properly come before the meeting shall be held in April. The meeting will be
held at such place within the United States as the Board of Directors shall
select. The first annual stockholders' meeting shall be held in April, 1991
unless otherwise determined by the Board of Directors. [MGCL Sec. 2-501]
Section 2.2. Special Meetings. Special meetings of stockholders may
be called at any time by the President, by a majority of the Board of Directors
or by the Chairman of the Board, if any, and shall be held at such time and
place and may conduct such business as may be provided herein and as may be
stated in the notice of the meeting.
Special meetings of the stockholders shall also be called by the
Secretary upon the written request of the holders of shares entitled to not less
than 25% of all the votes entitled to be cast at such meeting, provided that (a)
such request shall state the purposes of such meeting and the matters proposed
to be acted on, and (b) the stockholders requesting such meeting shall have paid
to the Corporation the reasonably estimated cost of preparing and mailing the
notice thereof, which the Secretary
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shall determine and specify to such stockholders. No special meeting shall be
called upon the request of stockholders to consider any matter which is
substantially the same as a matter voted upon at any special meeting of the
stockholders held during the preceding 12 months, unless requested by the
holders of a majority of all shares entitled to be voted at such meeting. [MGCL
Sec. 2-502]
Section 2.3. Notice of Meetings. The Secretary shall cause notice of
the place, date and hour, and, in the case of a special meeting or if otherwise
required by law, the purpose or purposes for which the meeting is called, to be
mailed, not less than 10 nor more than 90 days before the date of the meeting,
to each stockholder entitled to notice and to vote at such meeting at his
address as it appears on the records of the Corporation at the time of such
mailing. Notice of any stockholders' meeting need not be given to any
stockholder who shall sign a written waiver of such notice whether before or
after the time of such meeting, which waiver shall be filed with the record of
such meeting, or to any stockholder who is present at such meeting in person or
by proxy. [MGCL Sec. 2-504]
Section 2.4. Notice of Stockholder Business.
(a) At any annual or special meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual or special meeting, the
business must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii)
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otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before the meeting by a
stockholder.
(b) For business to be properly brought before an annual or
special meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, any such
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not later than 60 days prior to the date of the
meeting; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, any such
notice by a stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which notice of the date
of the annual or special meeting was given or such public disclosure was made.
(c) Any such notice by a stockholder shall set forth as to each
matter the stockholder proposes to bring before the annual or special meeting
(i) a brief description of the business desired to be brought before the annual
or special meeting and the reasons for conducting such business at the annual or
special meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (iii) the class and number of
shares of the capital stock of the Corporation which are beneficially owned by
the stockholder, and (iv) any material interest of the stockholder in such
business.
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(d) Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at any annual or special meeting except in
accordance with the procedures set forth in this Section 2.4. The Chairman of
the annual or special meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2.4, and if he should so
determine, he shall so declare to the meeting that any such business not
properly brought before the meeting shall not be considered or transacted.
Section 2.5. Quorum. The presence at any stockholders' meeting, in
person or by proxy, of stockholders entitled to cast a majority of the votes
entitled to be cast thereat shall be necessary and sufficient to constitute a
quorum for the transaction of business. In the absence of a quorum, the holders
of a majority of shares entitled to vote at the meeting and present in person or
by proxy, or, if no stockholder entitled to vote is present in person or by
proxy, any officer present entitled to preside or act as Secretary of such
meeting, may adjourn the meeting sine die or from time to time without further
notice to a date not more than 120 days after the original record date. Any
business that might have been transacted at the meeting originally called may be
transacted at any such adjourned meeting at which a quorum is present. [MGCL
Sections 2-506, 2-511]
Section 2.6. Voting. At each stockholders' meeting, each stockholder
entitled to vote shall be entitled to one vote
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for each share of stock of the Corporation validly issued and outstanding and
standing in his name on the books of the Corporation on the record date fixed in
accordance with Section 7.5 of Article VII hereof. Except as otherwise
specifically provided in the Articles of Incorporation or these By-Laws or as
required by law, as amended from time to time, all matters shall be decided by a
vote of the majority of the votes validly cast. The vote upon any question shall
be by ballot whenever requested by any person entitled to vote, but, unless such
a request is made, voting may be conducted in any way approved by the meeting.
[MGCL Sec. 2-507]
Section 2.7. Stockholders Entitled to Vote. If the Board of
Directors sets a record date for the determination of stockholders entitled to
notice of or to vote at any stockholders' meeting in accordance with Section 7.5
of Article VII hereof, each stockholder of the Corporation shall be entitled to
vote, in person or by proxy, each share of stock standing in his name on the
books of the Corporation on such record date. If no record date has been fixed,
the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be determined in accordance with the
Maryland General Corporation Law. [MGCL Sec. 2-511]
Section 2.8. Proxies. The right to vote by proxy shall exist only if
the instrument authorizing such proxy to act shall have been signed by the
stockholder or by his duly authorized attorney. Unless a proxy provides
otherwise, it is not valid more than eleven months after its date. Proxies shall
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be delivered prior to the meeting to the Secretary of the Corporation or to the
person acting as Secretary of the meeting before being voted. A proxy purporting
to be executed by or on behalf of a stockholder shall be deemed valid unless
challenged at or prior to its exercise. [MGCL Sec. 2-507]
Section 2.9. Voting and Inspectors. At any election of Directors,
the Chairman of the meeting may appoint two inspectors of election who shall
first subscribe an oath or affirmation to execute faithfully the duties of
inspectors at such election with strict impartiality and according to the best
of their ability, and shall after election make a certificate of the result of
the vote taken. No candidate for the office of Director shall be appointed as
such an inspector.
Section 2.10. Action Without Meeting. Any action to be taken by
stockholders may be taken without a meeting if (a) all stockholders entitled to
vote on the matter consent to the action in writing, (b) all stockholders
entitled to notice of the meeting but not entitled to vote at it sign a written
waiver of any right to dissent and (c) said consents and waivers are filed with
the records of the meetings of stockholders. Such consent shall be treated for
all purposes as a vote at the meeting. [MGCL Sec. 2-505]
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1. Powers. The property, affairs, and business of the
Corporation shall be managed by the Board of Directors, which may exercise all
the powers of the Corporation
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except those powers vested solely in the stockholders of the Corporation by
statute, by the Articles of Incorporation or by these By-Laws. [MGCL Sec. 2-401]
Section 3.2. Power to Issue and Sell Stock. The Board of Directors
may from time to time authorize the issuance and sale of any of the
Corporation's authorized shares to such persons and for such consideration as
the Board of Directors may deem advisable. [MGCL Sections 2-201, 2-203]
Section 3.3. Power to Declare Dividends.
(a) The Board of Directors, from time to time as they may deem
advisable to the extent permitted by applicable law, may declare and pay
dividends in cash or other property of the Corporation, out of any source
available for dividends, to the stockholders according to their respective
rights and interests. [MGCL Sec. 2-309]
(b) The Board of Directors shall cause to be accompanied by a
written statement any dividend payment wholly or partly from any source other
than
(i) the Corporation's accumulated undistributed net income
(determined in accordance with generally accepted accounting
principles and the rules and regulations of the Securities and
Exchange Commission then in effect) and not including profits or
losses realized upon the sale of securities or other properties; or
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(ii) the Corporation's net income so determined for the
current or preceding fiscal year. [MGCL Sec. 2-309; ICA Sec. 19(a)]
Such statement shall adequately disclose the source or sources of such payment
and the basis of calculation, and shall be in such form as the Securities and
Exchange Commission may prescribe.
(c) Notwithstanding the above provisions of this Section 3.3, the
Board of Directors may at any time declare and distribute pro rata among the
stockholders a stock dividend out of the Corporation's authorized but unissued
shares of stock to the extent permitted by applicable law, including any shares
previously purchased by the Corporation, provided that such dividend shall not
be distributed in shares of any class with respect to any shares of a different
class. [MGCL Sec. 2-309(e)]
Section 3.4. Number and Term. The Board of Directors shall consist
of not fewer than three, nor more than twelve Directors, as specified by
resolution of the majority of the entire Board of Directors, provided that at
least 40% of the entire Board of Directors shall be persons who are not
interested persons of the Corporation as defined in the Investment Company Act
of 1940. Beginning with the first annual meeting of the stockholders held after
the initial public offering of the shares of the Fund, the Directors shall be
divided into three classes, and shall be designated as Class 1, Class II, and
Class III Directors, respectively. The Class I Directors elected at such initial
annual meeting shall serve for a term of office expiring at the next succeeding
annual stockholders meeting following such
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initial annual meeting. The Class II Directors elected at such initial annual
meeting shall serve for a term of office expiring at the second succeeding
annual stockholders meeting following such initial annual meeting. The Class III
Directors elected at such initial annual meeting shall serve for a term of
office expiring at the third succeeding annual stockholders meeting following
such initial annual meeting. After expiration of the terms of office specified
for the Directors elected at such initial annual meeting, the Directors of each
class shall serve for terms of three (3) years, or, when filling a vacancy, for
the unexpired portion of such term and until their successors are elected and
have qualified. If the number of Directors is changed, any increase or decrease
shall be apportioned among the classes by the Board of Directors so as to
maintain the number of Directors in each class as nearly as possible, but in no
event shall a decrease in the number of Directors shorten the term of any
incumbent Director.
Section 3.5. Director Nominations.
(a) Only persons who are nominated in accordance with the procedures
set forth in this Section 3.5 shall be eligible for election or re-election as
Directors. Nominations of persons for election or re-election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors or by any stockholder of the Corporation
who is entitled to vote for the election of such nominee at the meeting and who
complies with the notice procedures set forth in this Section 3.5.
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(b) Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice delivered in
writing to the Secretary of the Corporation. To be timely, any such notice by a
stockholder must be delivered to or mailed and received at the principal
executive offices of the Corporation not later than 60 days prior to the
meeting; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, any such
notice by a stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which notice of the date
of the meeting was given or such public disclosure was made.
(c) Any such notice by a stockholder shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or
re-election as a Director, (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the capital stock of the
Corporation which are beneficially owned by such person and (D) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for the election of Directors pursuant to Regulation
14A under the Securities Exchange Act of 1934 or any successor regulation
thereto (including without limitation such persons' written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected and whether any person intends to seek reimbursement from the
Corporation of the expenses of any
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solicitation of proxies should such person be elected a Director of the
Corporation); and (ii) as to the stockholder giving the notice (A) the name and
address, as they appear on the Corporation's books, of such stockholder and (B)
the class and number of shares of the capital stock of the Corporation which are
beneficially owned by such stockholder. At the request of the Board of Directors
any person nominated by the Board of Directors for election as a Director shall
furnish to the Secretary of the Corporation that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
(d) If a notice by a stockholder is required to be given pursuant to
this Section 3.5, no person shall be entitled to receive reimbursement from the
Corporation of the expenses of a solicitation of proxies for the election as a
Director of a person named in such notice unless such notice states that such
reimbursement will be sought from the Corporation. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded for all purposes.
Section 3.6. Election. At the first annual meeting of stockholders
and each annual meeting thereafter, the Directors to be elected at that meeting
shall be elected by vote of the holders of a majority of the shares present in
person or by proxy and entitled to vote thereon.
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Section 3.7. Vacancies and Newly Created Directorships. If any
vacancies shall occur in the Board of Directors by reason of death, resignation,
removal or otherwise, or if the authorized number of Directors shall be
increased, the Directors then in office shall continue to act, and such
vacancies (if not previously filled by the stockholders) may be filled by a vote
of a majority of the Directors then in office, although less than a quorum,
except that a newly created Directorship may be filled only by a majority vote
of the entire Board of Directors; provided, however, that immediately after
filling such vacancy, at least two-thirds (2/3) of the Directors then holding
office shall have been elected to such office by the stockholders of the
Corporation. In the event that at any time, other than the time preceding the
first annual stockholders' meeting, less than a majority of the Directors of the
Corporation holding office at that time were elected by the stockholders, a
meeting of the stockholders shall be held promptly and in any event within 60
days for the purpose of electing Directors to fill any existing vacancies in the
Board of Directors unless the Securities and Exchange Commission shall by order
extend such period. [MGCL Sec. 2-407; ICA Sec. 16]
Section 3.8. Removal. A Director may be removed from office only for
cause and only by the vote of 75% of the votes entitled to be cast for the
election of Directors.
Section 3.9. Annual and Regular Meetings. The annual meeting of the
Board of Directors for choosing officers and transacting other proper business
shall be held immediately after
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the annual stockholders' meeting at the place of such meeting. The Board of
Directors from time to time may provide by resolution for the holding of regular
meetings and fix their time and place within or outside the State of Maryland.
Notice of such annual and regular meetings need not be in writing, provided that
written notice of any change in the time or place of such meetings shall be sent
promptly, in the manner provided in Section 3.10 of this Article III for notice
of special meetings, to each Director not present at the meeting at which such
change was made. Members of the Board of Directors or any committee designated
thereby may participate in a meeting of such Board or committee by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
[MGCL Sec. 2-409]
Section 3.10. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place and for any purpose when called by
the Chairman of the Board or by a majority of the Directors. Notice of special
meetings, stating the time and place, shall be (a) mailed to each Director at
his residence or regular place of business at least three days before the day on
which a special meeting is to be held or (b) delivered to him personally or
transmitted to him by telegraph, cable or other communication leaving a visual
record at least one day before the meeting. [MGCL Sec. 2-409(b)]
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Section 3.11. Waiver of Notice. No notice of any meeting need be
given to any Director who is present at the meeting or who waives notice of such
meeting in writing (which waiver shall be filed with the records of such
meeting), whether before or after the time of the meeting. [MGCL Sec. 2-409(c)]
Section 3.12. Quorum and Voting. At all meetings of the Board of
Directors, the presence of a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of the Directors present may adjourn the meeting, from time to time,
until a quorum shall be present. The action of a majority of the Directors
present at a meeting at which a quorum is present shall be the action of the
Board of Directors, unless the concurrence of a greater proportion is required
for such action by law, by the Articles of Incorporation or by these By-Laws;
provided, however, that no action shall be taken without the affirmative vote of
75% of the Directors with respect to the following matters:
(a) any action referred to in Article Eighth of the Articles of
Incorporation; or
(b) the election of officers and the compensation of directors and
officers. [MGCL Sec. 2-408]
Section 3.13. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent to such
action is signed by all members of the Board or of such committee, as the case
may be,
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and such written consent is filed with the minutes of proceedings of the Board
or committee. [MGCL Sec. 2-408(c)]
Section 3.14. Compensation of Directors. Directors shall be entitled
to receive such compensation from the Corporation for their services as may from
time to time be determined by resolution of the Board of Directors.
ARTICLE IV.
COMMITTEES
Section 4.1. Organization. The Board may designate one or more
committees, including an Executive Committee that shall consist of not less than
three Directors. The Chairmen of such committees shall be elected by the Board
of Directors. Each member of a committee shall be a Director and shall hold
office at the pleasure of the Board. The Board of Directors shall have the power
at any time to change the members of such committees and to fill vacancies in
the committees. The Board may delegate to these committees any of its powers,
except those which by law may not be delegated to a committee. [MGCL Sec. 2-411]
Section 4.2. Executive Committee. Unless otherwise provided by
resolution of the Board of Directors, when the Board of Directors is not in
session the Executive Committee shall have and may exercise all powers of the
Board of Directors in the management of the business and affairs of the
Corporation that may lawfully be exercised by an Executive Committee. The
Chairman of the Board, if any, and the President shall be members of the
Executive Committee.
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Section 4.3. Other Committees. The Board of Directors may appoint
other committees which shall have such powers and perform such duties as may be
delegated from time to time by the Board.
Section 4.4. Proceedings and Quorum. Each committee may adopt such
rules and regulations governing its proceedings, quorum and manner of acting as
it shall deem proper and desirable In the event any member of any committee is
absent from any meeting, the members thereof present at the meeting, whether or
not they constitute a quorum, may appoint a member of the Board of Directors to
act in the place of such absent member.
ARTICLE V.
OFFICERS
Section 5.1. General. The officers of the Corporation shall be a
President, a Secretary and a Treasurer, and may include one or more Vice
Presidents, Assistant Secretaries or Assistant Treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 5.10
of this Article V. The Board of Directors may elect, but shall not be required
to elect, a Chairman of the Board. [MGCL Sec. 2-412]
Section 5.2. Election, Tenure and Qualifications. The officers of
the Corporation, except those appointed as provided in Section 5.10 of this
Article V, shall be elected by the Board of Directors at its first meeting or at
such meetings as shall be held prior to its first annual meeting, and thereafter
annually at its annual meeting. If any officers are
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not chosen at any annual meeting, such officers may be chosen at any subsequent
regular or special meeting of the Board. Except as otherwise provided in this
Article V, each officer chosen by the Board of Directors shall hold office until
the next annual meeting of the Board of Directors and until his successor shall
have been elected and qualified. Any person may hold one or more offices of the
Corporation except the same person may not concurrently hold the offices of
President and Vice President. A person who holds more than one office may not
act in more than one capacity to execute, acknowledge or verify an instrument
required by law to be executed, acknowledged or verified. The Chairman of the
Board, if any, shall be elected from among the Directors of the Corporation and
may hold such office only so long as he continues to be a Director. No other
officer need be a Director. [MGCL Sec. 2-413]
Section 5.3. Removal and Resignation. Whenever in the Board's
judgment the best interest of the Corporation will be served thereby, any
officer may be removed from office by the vote of a majority of the members of
the Board of Directors given at a regular meeting or any special meeting called
for such purpose. Any officer may resign his office at any time by delivering a
written resignation to the Board of Directors, the President, the Secretary, or
any Assistant Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery. [MGCL Sec. 2-413]
Section 5.4. Chairman of the Board. The Chairman of the Board, if
there be such an officer, shall be the senior
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officer of the Corporation, shall preside at all stockholders' meetings and at
all meetings of the Board of Directors and shall be ex officio a non-voting
member of all committees of the Board of Directors. He shall have such powers
and perform such other duties as may be assigned to him from time to time by the
Board of Directors.
Section 5.5. Vice Chairman of the Board. The Vice Chairman of the
Board shall consult with the Chairman as to the policies of the Corporation and
as to the agendas to be presented at the meetings of the Board of Directors. In
the absence of the Chairman of the Board and the President, he shall preside at
meetings of the Board of Directors. He shall have such powers and perform such
other duties as may be assigned to him from time to time by the Chairman.
Section 5.6. President. The President shall be the chief executive
officer of the Corporation and, in the absence of the Chairman of the Board or
if no Chairman of the Board has been chosen, he shall preside at all
stockholders' meetings and at all meetings of the Board of Directors and shall
in general exercise the powers and perform the duties of the Chairman of the
Board. Subject to the supervision of the Board of Directors, he shall have
general charge of the business, affairs, and property of the Corporation and
general supervision over its officers, employees and agents. Except as the Board
of Directors may otherwise order, he may sign in the name and on behalf of the
Corporation all deeds, bonds, contracts or agreements. He shall exercise
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such other powers and perform such other duties as from time to time may be
assigned to him by the Board of Directors.
Section 5.7. Vice President. The Board of Directors may from time to
time elect one or more Vice Presidents who shall have such powers and perform
such duties as from time to time may be assigned to them by the Board of
Directors or the President. At the request, or in the absence or disability, of
the President, the Vice President (or, if there are two or more Vice Presidents,
then the senior of the Vice Presidents present and able to act) may perform all
the duties of the President and, when so acting, shall have all the powers of
and be subject to all the restrictions upon the President.
Section 5.8. Treasurer and Assistant Treasurers. The Treasurer shall
be the principal financial and accounting officer of the Corporation and shall
have general charge of the finances and books of account of the Corporation.
Except as otherwise provided by the Board of Directors, he shall have general
supervision of the funds and property of the Corporation and of the performance
by the Custodian of its duties with respect thereto. He shall render to the
Board of Directors, whenever directed by the Board, an account of the financial
condition of the Corporation and of all his transactions as Treasurer; and as
soon as possible after the close of each financial year he shall make and submit
to the Board of Directors a like report for such financial year. He shall
perform all acts incidental to the Office of Treasurer, subject to the control
of the Board of Directors.
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Any Assistant Treasurer may perform such duties of the Treasurer as
the Treasurer or the Board of Directors may assign, and, in the absence of the
Treasurer, he may perform all the duties of the Treasurer.
Section 5.9. Secretary and Assistant Secretaries. The Secretary
shall attend to the giving and serving of all notices of the Corporation and
shall record all proceedings of the meetings of the stockholders and Directors
in books to be kept for that purpose. He shall keep in safe custody the seal of
the Corporation, and shall have charge of the records of the Corporation,
including the stock books and such other books and papers as the Board of
Directors may direct and such books, reports, certificates and other documents
required by law to be kept, all of which shall at all reasonable times be open
to inspection by any Director. He shall perform such other duties as appertain
to his office or as may be required by the Board of Directors.
Any Assistant Secretary may perform such duties of the Secretary as
the Secretary or the Board of Directors may assign, and, in the absence of the
Secretary, he may perform all the duties of the Secretary.
Section 5.10. Subordinate Officers. The Board of Directors from time
to time may appoint such other officers or agents as it may deem advisable, each
of whom shall have such title, hold office for such period, have such authority
and perform such duties as the Board of Directors may determine. The Board of
Directors from time to time may delegate to one or more
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officers or agents the power to appoint any such subordinate officers or agents
and to prescribe their respective rights, terms of office, authorities and
duties.
Section 5.11. Remuneration. The salaries or other compensation of
the officers of the Corporation shall be fixed from time to time by resolution
of the Board of Directors, except that the Board of Directors may by resolution
delegate to any person or group of persons the power to fix the salaries or
other compensation of any subordinate officers or agents appointed in accordance
with the provisions of Section 5.10 of this Article V.
Section 5.12. Surety Bonds. The Board of Directors may
require any officer or agent of the Corporation to execute a bond (including,
without limitation, any bond required by the Investment Company Act of 1940,
as amended, and the rules and regulations of the Securities and Exchange
Commission) to the Corporation in such sum and with such surety or sureties
as the Board of Directors may determine, conditioned upon the faithful
performance of his duties to the Corporation, including responsibility for
negligence and for the accounting of any of the Corporation's property, funds
or securities that may come into his hands. [ICA Sec. 17(g)]
ARTICLE VI.
NET ASSET VALUE
Section 6.1. Valuation of Assets. The value of the Corporation's net
assets shall be determined at such times and by such method as shall be
established from time to time by the
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Board of Directors. Such method shall be reduced to writing and maintained in
the Corporation's permanent records.
ARTICLE VII.
CAPITAL STOCK
Section 7.1. Certificates of Stock. The interest of each stockholder
of the Corporation shall be evidenced in such form as the Board of Directors may
from time to time prescribe. No certificate shall be valid unless it is signed
by the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation and
sealed with its seal, or bears the facsimile signatures of such officers and a
facsimile of such seal. [MGCL Sections 2-210, 2-212]
Section 7.2. Transfer of Shares. Shares of the Corporation shall be
transferable on the books of the Corporation by the holder thereof in person or
by his duly authorized attorney or legal representative upon surrender and
cancellation of a certificate or certificates for the same number of shares of
the same class, duly endorsed or accompanied by proper instruments of assignment
and transfer, with such proof of the authenticity of the signature as the
Corporation or its agents may reasonably require. The shares of stock of the
Corporation may be freely transferred, and the Board of Directors may, from time
to time, adopt rules and regulations with reference to the method of transfer of
the shares of stock of the Corporation.
Section 7.3. Stock Ledgers. The stock ledgers of the Corporation,
containing the names and addresses of the
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stockholders and the number of shares held by them respectively, shall be kept
at the principal offices of the Corporation or, if the Corporation employs a
transfer agent, at the offices of the transfer agent of the Corporation. [MGCL
Sec. 2-209]
Section 7.4. Transfer Agents and Registrars. The Board of Directors
may from time to time appoint or remove transfer agents and/or registrars of
transfers of shares of stock of the Corporation, and it may appoint the same
person as both transfer agent and registrar. Upon any such appointment being
made, all certificates representing shares of capital stock thereafter issued
shall be countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless so
countersigned.
Section 7.5. Fixing of Record Date. The Board of Directors may fix
in advance a date as a record date for the determination of the stockholders
entitled to notice of or to vote at any stockholders' meeting or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or to receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, provided that
(1) such record date may not be prior to the close of business on the day the
record date is fixed and shall be within 90 days prior to the date on which the
particular action requiring such determination will be taken; and (2) in the
case of a meeting of
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stockholders, the record date shall be at least 10 days before the date of the
meeting. [MGCL Sec. 2-511]
Section 7.6. Lost, Stolen or Destroyed Certificates. Before issuing
a new certificate for stock of the Corporation alleged to have been lost, stolen
or destroyed, the Board of Directors or any officer authorized by the Board may,
in its discretion, require the owner of the lost, stolen or destroyed
certificate (or his legal representative) to give the Corporation a bond or
other indemnity, in such form and in such amount as the Board or any such
officer may direct and with such surety or sureties as may be satisfactory to
the Board or any such officer, sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
[MGCL Sec. 2-213]
ARTICLE VIII.
FISCAL YEAR AND ACCOUNTANT
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall,
unless otherwise ordered by the Board of Directors, be twelve calendar months
ending on the 31st day of December.
Section 8.2. Accountant.
(a) The Corporation shall employ an independent public accountant or
a firm of independent public accountants of national reputation as its
Accountant to examine the accounts of the Corporation and to sign and certify
financial statements filed by the Corporation. The Accountants' certificates and
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reports shall be addressed both to the Board of Directors and to the
stockholders. The employment of the Accountant shall be conditioned upon the
right of the Corporation to terminate the employment forthwith without any
penalty by vote of a majority of the outstanding voting securities at any
stockholders' meeting called for that purpose.
(b) A majority of the members of the Board of Directors who are not
"interested persons" (as such term is defined in the Investment Company Act of
1940, as amended) of the Corporation shall select the Accountant at any meeting
held in a manner consistent with the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder. Such selection shall be submitted for
ratification or rejection at the next succeeding annual stockholders' meeting.
If the stockholders shall reject such selection at such meeting, the Accountant
shall be selected by majority vote of the Corporation's outstanding voting
securities, either at the meeting at which the rejection occurred or at a
subsequent meeting of stockholders called for that purpose.
(c) Any vacancy occurring between annual meetings, due to the
resignation of the Accountant, may be filled by the vote of a majority of the
members of the Board of Directors who are not "interested persons". [ICA Sec.
32(a)]
ARTICLE IX.
CUSTODY OF SECURITIES
Section 9.1. Employment of a Custodian. The Corporation shall place
and at all times maintain in the custody
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of a Custodian (including any sub-custodian for the Custodian) all funds,
securities and similar investments owned by the Corporation. The Custodian (and
any sub-custodian) shall be an institution conforming to the requirements of
Section 17(f) of the Investment Company Act of 1940 and the rules of the U.S.
Securities and Exchange Commission thereunder. The Custodian shall be appointed
from time to time by the Board of Directors, which shall fix its remuneration.
[ICA Sec. 17(f)]
Section 9.2. Termination of Custodian Agreement. Upon termination of
the Custodian Agreement or inability of the Custodian to continue to serve, the
Board of Directors shall promptly appoint a successor Custodian, but in the
event that no successor Custodian can be found who has the required
qualifications and is willing to serve, the Board of Directors shall call as
promptly as possible a special meeting of the stockholders to determine whether
the Corporation shall function without a Custodian or shall be liquidated. If so
directed by vote of the holders of a majority of the outstanding shares of stock
entitled to vote of the Corporation, the Custodian shall deliver and pay over
all property of the Corporation held by it as specified in such vote.
ARTICLE X.
INDEMNIFICATION AND INSURANCE
Section 10.1. Indemnification of Directors, Officers and Members of
the Advisory Board. To the maximum extent permitted by the Investment Company
Act of 1940, the Securities Act of 1933 (as such statutes are now or hereinafter
in force)
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and by Maryland law in effect from time to time, the Corporation shall
indemnify, and shall pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to, (i) any individual who is a present or former
Director, officer or member of the Advisory Board of the Corporation or (ii) any
individual who serves or has served another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a director or
officer of such corporation or other enterprise or as a partner or trustee of
such partnership, joint venture, trust, employee benefit plan or other
enterprise at the request of the Corporation. The Corporation may, with the
approval of its Board of Directors, provide such indemnification and advancement
of expenses to a person who served a predecessor of the Corporation in any of
the capacities described in (i) or (ii) above and to any employee or agent of
the Corporation or a predecessor of the Corporation. Indemnification or
advancement shall be made only as authorized for a specific proceeding upon (i)
a determination that indemnification of or advancement to such person is proper
in the circumstances because he has met the applicable standard of conduct for
indemnification or applicable requirement for advancement and (ii) such other
authorizations and determinations as may be required by law to be made by (A)
the Board of Directors of the Corporation by the vote of a majority of a quorum
consisting of Directors who are neither "interested persons" of the Corporation
as defined in the Investment Company Act of 1940 nor parties to such proceeding
or, if such quorum cannot be obtained, by a majority vote of a
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committee of the Board of Directors consisting solely of two or more such
Directors who are duly designated to act in the matter by a majority vote of the
full Board of Directors; or (B) independent legal counsel in a written opinion,
which counsel shall be selected in accordance with such procedures as may be
required by law, provided, however, that such counsel shall make only such
determinations and authorizations as are permitted by law to be made by
independent counsel; or (C) the stockholders of the Corporation acting in
accordance with the Articles of Incorporation and these By-Laws and applicable
law.
Neither the amendment nor repeal of this Article X nor the adoption
or amendment of any other provision of these By-Laws or the Articles of
Incorporation inconsistent with this Article X, shall apply to or affect in any
respect to any act or failure to act which occurred prior to such amendment,
repeal or adoption. [MGCL Sec. 2-418]
Section 10.2. Insurance of Officers, Directors, Members of the
Advisory Board, Employees and Agents. To the maximum extent permitted by the
Investment Company Act of 1940, the Securities Act of 1933 (as such statutes are
now or hereinafter in force) and by Maryland law in effect from time to time,
the Corporation may purchase and maintain insurance on behalf of any person who
is or was a Director, officer, member of the Advisory Board, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee, partner, trustee or agent of another corporation,
partnership, joint venture, trust or other
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enterprise against any liability asserted against him and incurred by him in or
arising out of his position. [MGCL Sec. 2-419(k)]
ARTICLE XI.
AMENDMENTS
Section 11.1. General. Except as provided in the next succeeding
sentence and in the Articles of Incorporation, all By-Laws of the Corporation,
whether adopted by the Board of Directors or the stockholders, shall be subject
to amendment, alteration or repeal, and new By-Laws may be made by the
affirmative vote of a majority of either: (a) the holders of record of the
outstanding shares of stock of the Corporation entitled to vote, at any annual
or special meeting, the notice or waiver of notice of which shall have specified
or summarized the proposed amendment, alteration, repeal or new By-Law; or (b)
the Directors, at any regular or special meeting the notice or waiver of notice
of which shall have specified or summarized the proposed amendment, alteration,
repeal or new By-Law. The provisions of Article II, Section 2.4 and Article III,
Sections 3.4 and 3.5 of these By-Laws shall be subject to amendment, alterations
or repeal by the affirmative vote of either: (i) the holders of record of 75% of
the outstanding shares of stock of the Corporation entitled to vote, at any
annual or special meeting, the notice or waiver of notice of which shall have
specified or summarized the proposed amendment, alteration or repeal or (ii) 75%
of the Continuing Directors (as such term is defined in Article EIGHTH of the
Corporation's Articles of
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Incorporation), at any regular or special meeting the notice or waiver of notice
of which shall have specified or summarized the proposed amendment, alteration
or repeal.
ARTICLE XII.
SPECIAL PROVISIONS
Section 12.1. Actions Relating to Discount in Price of the
Corporation's Shares. In the event that at any time during or after the fifth
year following the initial public offering of shares of the Corporation's Common
Stock such shares publicly trade for a substantial period of time at a
substantial discount from the Corporation's then current net asset value per
share, the Board of Directors shall, at its next regularly scheduled meeting,
consider taking actions designed to eliminate such discount. The actions
considered by the Board of Directors may include periodic repurchases by the
Corporation of its shares of Common Stock or an amendment to the Corporation's
Articles of Incorporation to make the Corporation's Common Stock a "redeemable
security" (as such term is defined in the Investment Company Act of 1940),
subject in all events to compliance with all applicable provisions of the
Corporation's Articles of Incorporation, these By-Laws, the Maryland General
Corporation Law and the Investment Company Act of 1940.
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