1
________________________________________________________________________________
XXXXXX EUROPE FUND, INC.
A Maryland Corporation
AMENDED
AND
RESTATED
BY-LAWS
September 3, 1999
________________________________________________________________________________
2
TABLE OF CONTENTS
ARTICLE I. NAME OF CORPORATION, LOCATION OF OFFICES AND SEAL
Section 1.1. Principal Offices..................................... 1
Section 1.2. Seal.................................................. 1
ARTICLE II. STOCKHOLDERS
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. Stockholder Business not Eligible for Consideration... 5
Section 2.6. Quorum................................................ 6
Section 2.7. Adjourned Meetings.................................... 7
Section 2.8. Voting................................................ 7
Section 2.9. Stockholders Entitled to Vote......................... 8
Section 2.10. Proxies............................................... 8
Section 2.11. Voting and Inspectors................................. 9
Section 2.12. Action Without Meeting............................... 10
ARTICLE III. BOARD OF DIRECTORS
Section 3.1. Powers............................................... 10
Section 3.2. Power to Issue and Sell Stock........................ 11
Section 3.3. Power to Declare Dividends........................... 11
Section 3.4. Number and Term...................................... 12
Section 3.5. Director Nominations................................. 13
Section 3.6. Election............................................. 15
Section 3.7. Vacancies and Newly Created Directorships............ 15
Section 3.8. Removal.............................................. 16
Section 3.9. Regular Meetings..................................... 16
Section 3.10. Special Meetings..................................... 17
Section 3.11. Waiver of Notice..................................... 17
Section 3.12. Quorum and Voting.................................... 17
Section 3.13. Action Without a Meeting............................. 18
Section 3.14. Compensation of Directors............................ 18
ARTICLE IV. COMMITTEES
Section 4.1. Organization......................................... 19
Section 4.2. Executive Committee.................................. 19
Section 4.3. Other Committees..................................... 20
Section 4.4. Proceedings and Quorum............................... 20
ARTICLE V. OFFICERS
Section 5.1. General.............................................. 20
Section 5.2. Election, Tenure and Qualifications.................. 21
(i)
3
Section 5.3. Removal and Resignation.............................. 21
Section 5.4. Chairman of the Board................................ 22
Section 5.5. Vice Chairman of the Board........................... 22
Section 5.6. President............................................ 22
Section 5.7. Vice President....................................... 23
Section 5.8. Treasurer and Assistant Treasurers................... 23
Section 5.9. Secretary and Assistant Secretaries.................. 24
Section 5.10. Subordinate Officers................................. 25
Section 5.11. Remuneration......................................... 25
Section 5.12. Surety Bonds......................................... 25
ARTICLE VI. NET ASSET VALUE
Section 6.1. Valuation of Assets.................................. 26
ARTICLE VII. CAPITAL STOCK
Section 7.1. Certificates of Stock................................ 26
Section 7.2. Transfer of Shares................................... 27
Section 7.3. Stock Ledgers........................................ 28
Section 7.4. Fixing of Record Date................................ 28
Section 7.5. Lost, Stolen or Destroyed Certificates............... 28
ARTICLE VIII. FISCAL YEAR
Section 8.1. Fiscal Year.......................................... 29
ARTICLE IX. INDEMNIFICATION AND INSURANCE
Section 9.1. Indemnification of Directors, Officers and
Members of the Advisory Board...................... 30
Section 9.2. Advances............................................. 31
Section 9.3. Procedure............................................ 32
Section 9.4. Indemnification of Employees and Agents.............. 32
Section 9.5. Other Rights......................................... 33
Section 9.6. Insurance............................................ 33
Section 9.7. Constituent, Resulting or Surviving Corporations..... 34
ARTICLE X. AMENDMENTS
Section 10.1. General.............................................. 34
(ii)
4
AMENDED AND RESTATED
BY-LAWS
of
XXXXXX 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 Xxxxxx
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.
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 to place the word "(seal)" adjacent to the signature of the person
authorized to sign the document on behalf of the Corporation.
5
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 July. The meeting will be held
at such place within the United States as the Board of Directors shall select.
Section 2.2. Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's Charter, may be held at any place within the United States, and
may be called at any time by the Board of Directors or by the President, and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors or at the request in writing of stockholders
entitled to cast at least 25% of the votes entitled to be cast at the meeting
upon payment by such stockholders to the Corporation of the reasonably estimated
cost of preparing and mailing a notice of the meeting (which estimated cost
shall be provided to such stockholders by the Secretary of the Corporation).
Notwithstanding the foregoing, unless requested by stockholders entitled to cast
a majority of the votes entitled to be cast at the meeting, a special meeting of
the stockholders need not be called at the request of stockholders to consider
any matter which is substantially the same as a matter voted on at any special
meeting of the stockholders held during the preceding 12 (twelve) months. A
special meeting of the stockholders shall also be called by the
- 2 -
6
Board of Directors for the purpose of voting upon the question of removal of any
Director when requested in writing to do so by stockholders holding at least 10%
of the outstanding shares of the Corporation. A written request shall state the
purpose or purposes of the proposed meeting.
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.
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) otherwise
properly brought before the meeting by or at the
- 3 -
7
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.
(d) Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at any annual or special
- 4 -
8
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. Stockholder Business not Eligible for Consideration.
(a) Notwithstanding anything in these By-Laws to the contrary, any
proposal that is otherwise properly brought before an annual or special meeting
by a stockholder will not be eligible for consideration by the stockholders at
such annual or special meeting if such proposal is substantially the same as a
matter properly brought before such annual or special meeting by or at the
direction of the Board of Directors of the Corporation. The chairman of such
annual or special meeting shall, if the facts warrant, determine and declare
that a stockholder proposal is substantially the same as a matter properly
brought before the meeting by or at the direction of the Board of Directors,
and, if he should so determine, he shall so declare to the meeting and any such
stockholder proposal shall not be considered at the meeting.
(b) This Section 2.5. shall not be construed or applied to make
ineligible for consideration by the stockholders at any annual or special
meeting any stockholder proposal
- 5 -
9
required to be included in the Corporation's proxy statement relating to such
meeting pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, or any
successor rule thereto.
Section 2.6. Quorum. The presence at any stockholders' meeting in
person or by proxy, of stockholders entitled to cast at least one-third of the
votes entitled to be cast thereat shall be necessary and sufficient to
constitute a quorum for the transaction of business, except that where any
provision of law or the Charter permits or requires that stockholders of any
class of Common Stock of the Corporation shall vote as a class, one-third of the
votes entitled to be cast by said class shall constitute a quorum. 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.
Section 2.7. Adjourned Meetings. A meeting of stockholders convened
on the date for which it was called (including one adjourned to achieve a quorum
as above provided in Section 2.6 of this Article) may be adjourned from time to
time without further notice other than by announcement at the meeting
- 6 -
10
to a date not more than 120 days after the original record date, and any
business may be transacted at any adjourned meeting which could have been
transacted at the meeting as originally called.
Section 2.8. Voting. At each stockholders' meeting, each stockholder
entitled to vote shall be entitled to one vote 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 7.4 of
Article VII hereof; provided, however, that when required by the Investment
Company Act of 1940, as amended (the "1940 Act"), or the laws of the State of
Maryland or when the Board of Directors has determined that the matter affects
only the interest of one class of stock, matters may be submitted only to a vote
of the stockholders of that particular class, and each stockholder thereof shall
be entitled to votes equal to the shares of stock of that class registered in
the stockholder's name on the books of the Corporation. Except as otherwise
specifically provided in the Charter 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, except for the election of directors which
shall be by a plurality of votes 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 at the meeting.
Section 2.9. Stockholders Entitled to Vote. If the Board of
Directors sets a record date for the determination of
- 7 -
11
stockholders entitled to notice of or to vote at any stockholders' meeting in
accordance with Section 7.4 of Article VII hereof, each stockholder of the
Corporation entitled to vote on the matter 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.
Section 2.10. Proxies. Any stockholder entitled to vote at any
meeting of stockholders may vote either in person or by proxy. Unless a proxy
provides otherwise, it is not valid more than eleven months after its date.
Every proxy shall be in writing and signed by the stockholder or his authorized
agent or be in such other form as may be permitted by the Maryland General
Corporation Law, including electronic transmissions from the stockholder or his
authorized agent. Authorization may be given orally, in writing, by telephone,
by electronic transmission, or by other means of communication. A copy,
facsimile transmission or other reproduction of a writing or transmission may be
substituted for the original writing or transmission for any purpose for which
the original writing or transmission could be used. Every proxy shall be dated,
but need not be sealed, witnessed or acknowledged. All proxies shall be
delivered to the Secretary of the Corporation, or to the person acting as
Secretary of the Meeting being voted. A proxy purporting to be
- 8 -
12
executed by or on behalf of a stockholder shall be valid unless challenged at or
prior to its exercise.
Section 2.11. Voting and Inspectors. The Board of Directors may, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting or at any adjournment of the meeting. If the inspectors shall not be
so appointed or if any of them shall fail to appear or act, the Chairman of the
meeting may, and on the request of any stockholder entitled to vote at the
meeting shall, appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath to execute faithfully the
duties of inspector at the meeting with strict impartiality and according to the
best of his ability. The inspectors shall determine the number of shares
outstanding and the voting power of each share, the number of shares represented
at the meeting, the existence of a quorum and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do those acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the Chairman of the meeting or any stockholder entitled to vote at
the meeting, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any fact
found by them. No director or candidate for the office of director shall
- 9 -
13
act as inspector of an election of directors. Inspectors need not be
stockholders of the Corporation.
Section 2.12. 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.
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 except those powers vested solely in the
stockholders of the Corporation by statute, by the Charter or by these By-Laws.
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.
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
- 10 -
14
Corporation, out of any source available for dividends, to the stockholders
according to their respective rights and interests.
(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
(ii) the Corporation's net income so determined for the
current or preceding fiscal year
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 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.
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
- 11 -
15
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 1940 Act. 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 I, 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 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.
- 12 -
16
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.
(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
- 13 -
17
and number of shares of the capital stock of 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 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
- 14 -
18
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 plurality of the votes cast
thereon.
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 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
- 15 -
19
Securities and Exchange Commission shall by order extend such period. Any
Director elected or appointed to fill a vacancy shall hold office until a
successor has been chosen and qualifies or until his earlier death, resignation
or removal.
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. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at the time and place determined by the
Board of Directors. 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.
Section 3.10. Special Meetings. Special meetings of the Board of
Directors may be called by two or more Directors of the Corporation or by the
Chairman of the Board or the President. 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 an which a special meeting
is to be held or (b) delivered to him personally or by telephone, facsimile
transmission or other standard form of telecommunication, at least one day
before the meeting.
Section 3.11. Waiver of Notice. No notice of any meeting need be
given to any Director who is present at the
- 16 -
20
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.
Section 3.12. Quorum and Voting. At all meetings of the Board of
Directors, the presence of one-third (but not fewer than two unless there be
only one Director) of the entire Board of Directors shall constitute a quorum
for the action 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 Charter 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
any action referred to in Article Eighth of the Charter.
Section 3.13. Action Without a Meeting. Subject to the provisions of
the 1940 Act, 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, and such written consent is filed with the
minutes of proceedings of the Board or committee.
Section 3.14. Compensation of Directors. Directors shall be entitled
to receive such compensation from the
- 17 -
21
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. By resolution adopted by the Board of
Directors, the Board may designate one or more committees, including an
Executive Committee that shall consist of not less than one or more 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. If the Board of Directors has given
general authorization for the issuance of stock providing for or establishing a
method or procedure for determining the maximum number of shares to be issued, a
committee of the Board, in accordance with that general authorization or any
stock option or other plan or program adopted by the Board, may authorize and
fix the terms of stock subject to classification and reclassification and the
terms on which any stock may be issued including all terms and conditions
required or permitted to be established or authorized by the Board of Directors
under Section 3.2 of these By-Laws.
Section 4.2. Executive Committee. Unless otherwise provided by
resolution of the Board of Directors, when the Board
- 18 -
22
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.
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.
- 19 -
23
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 annually at its annual
meeting. If any officers are 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.
Section 5.3. Removal and Resignation. Any officer of the Corporation
may be removed by the Board of Directors with or without cause at any time. Any
officer may resign his office at any time by delivering a written notice to the
Board of Directors, the President, the Secretary, or any Assistant Secretary.
Unless otherwise specified therein, such resignation shall take effect upon
delivery
- 20 -
24
Section 5.4. Chairman of the Board. The Chairman of the Board, if
there be such an officer, shall be the senior 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 member of all committees of the Board of
Directors other than the audit committee and any nominating committee. 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, if any, 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
- 21 -
25
order, he may sign in the name and on behalf of the Corporation all deeds,
bonds, contracts or agreements. He shall exercise 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
- 22 -
26
Office of Treasurer, subject to the control of the Board of Directors.
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
- 23 -
27
perform such duties as the Board of Directors may determine. The Board of
Directors from time to tine may delegate to one or more 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 1940 Act, 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.
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 time
- 24 -
28
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. Each holder of stock of the
Corporation shall be entitled upon specific written request to such person as
may be designated by the Corporation, to have a certificate or certificates, in
a form approved by the Board, representing the number of shares of the
particular class of stock of the Corporation owned by him; provided, however,
that certificates for fractional shares will not be delivered in any case. The
certificates representing shares of stock shall be signed by or in the name of
the Corporation by the Chairman of the Board, President or a Vice President and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer and sealed with the seal of the Corporation. Any or all of the
signatures or the seal on the certificate may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate shall be issued, it may be
issued by the Corporation with the same effect as if such officer, transfer
agent or registrar were still in office at the date of issue.
Section 7.2. Transfer of Shares. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed
- 25 -
29
and filed with the Secretary or with a transfer agent or transfer clerk, and on
surrender of the certificate or certificates, if issued, for the shares properly
endorsed or accompanied by a duly executed stock transfer power and the payment
of all taxes thereon. Except as otherwise provided by law, the Corporation shall
be entitled to recognize the exclusive right of a person in whose name any share
or shares stand on the record of stockholders as the owner of the share or
shares for all purposes, including, without limitation, the rights to receive
dividends or other distributions and to vote as the owner, and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
any such share or shares on the part of any other person.
Section 7.3. Stock Ledgers. The Stock Ledgers of the Corporation,
containing the names and addresses of the 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.
Section 7.4. 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,
- 26 -
30
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 not more than 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 stockholders the record date shall be at least 10 days
before the date of the meeting.
Section 7.5. Lost, Stolen or Destroyed Certificates. The holder of
any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of its theft, loss, destruction or mutilation
and the Corporation may issue a new certificate of stock in the place of any
certificate issued by it that has been alleged to have been stolen, lost or
destroyed or that shall have been mutilated. The Board may, in its discretion,
require the owner (or his legal representative) of a stolen, lost, destroyed or
mutilated certificate to give to the Corporation a bond in a sum, limited or
unlimited, and in a form and with any surety or sureties, as the Board in its
absolute discretion shall determine or to indemnify the Corporation against any
claim that may be made against it on account of the alleged theft, loss,
destruction or the mutilation of any such certificate, or issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the Maryland General
Corporation Law.
- 27 -
31
ARTICLE VIII.
FISCAL YEAR
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 October.
ARTICLE IX.
INDEMNIFICATION AND INSURANCE
Section 9.1. Indemnification of Directors, Officers and Members of
the Advisory Board. Any person who was or is a party or is threatened to be made
a party in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is a current or former director, officer or member of any
Advisory Board of the Corporation, or is or was serving while a director,
officer or member of any Advisory Board of the Corporation at the request of the
Corporation as a director, officer, partner, trustee, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust, enterprise
or employee benefit plan, shall be indemnified by the Corporation against
judgments, penalties, fines, excise taxes, settlements and reasonable expenses
(including attorneys' fees) actually incurred by such person in connection with
such action, suit or proceeding to the full extent permissible under the
Maryland General Corporation Law, the Securities Act of 1933, as amended (the
"Securities Act"), and the 1940 Act, as such statutes are now or hereafter in
force, except that such
- 28 -
32
indemnity shall not protect any such person against any liability to the
Corporation or any stockholder thereof to which such person would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office
("disabling conduct").
Section 9.2. Advances. Any current or former director, officer or
member of any Advisory Board of the Corporation claiming indemnification within
the scope of this Article IX shall be entitled to advances from the Corporation
for payment of the reasonable expenses incurred by him in connection with
proceedings to which he is a party in the manner and to the full extent
permissible under the Maryland General Corporation Law, the Securities Act and
the 1940 Act, as such statutes are now or hereafter in force; provided however,
that the person seeking indemnification shall provide to the Corporation a
written affirmation of his good faith belief that the standard of conduct
necessary for indemnification by the Corporation has been met and a written
undertaking to repay any such advance unless it is ultimately determined that he
is entitled to indemnification, and provided further that at least one of the
following additional conditions is met: (a) the person seeking indemnification
shall provide a security in form and amount acceptable to the Corporation for
his undertaking; (b) the Corporation is insured against losses arising by reason
of the advance; or (c) a majority of a quorum of directors of the Corporation
who are neither "interested persons" as defined in Section 2(a)(19) of the 1940
Act, nor parties to the proceeding ("disinterested non-party directors"), or
independent legal counsel, in a written opinion, shall determine, based on a
review of facts readily available to the Corporation at the time the advance is
proposed to be made, that there is reason to believe that the person seeking
indemnification will ultimately be found to be entitled to indemnification.
Section 9.3. Procedure. At the request of any current or former
director, officer or Advisory Board member, or any employee or agent whom the
Corporation proposes to indemnify, the Board of Directors shall determine, or
cause to be determined, in a manner consistent with the Maryland General
Corporation Law, the Securities Act and the 1940 Act, as such statutes are now
or hereafter in force, whether the standards required by this Article IX have
been met; provided, however, that indemnification shall be made only following:
(a) a final decision on the merits by a court or other body before whom the
proceeding was brought that the person to be indemnified was not liable by
reason of disabling conduct; or (b) in the absence of such a decision, a
reasonable determination, based upon a review of the facts, that the person to
be indemnified was not liable by
- 29 -
33
reason of disabling conduct by, (i) the vote of a majority of a quorum of
disinterested non-party directors, or (ii) an independent legal counsel in a
written opinion.
Section 9.4. Indemnification of Employees and Agents. Employees and
agents who are not officers, directors or Advisory Board members of the
Corporation may be indemnified, and reasonable expenses may be advanced to such
employees or agents, in accordance with the procedures set forth in this Article
IX to the extent permissible under the 1940 Act, the Securities Act and Maryland
General Corporation Law, as such statutes are now or hereafter in force, to the
extent, consistent with the foregoing, as may be provided by action of the Board
of Directors or by contract.
Section 9.5. Other Rights. The indemnification provided by this
Article IX shall not be deemed exclusive of any other right, in respect of
indemnification or otherwise, to which those seeking such indemnification may be
entitled under any insurance or other agreement, vote of stockholders or
disinterested directors or otherwise, both as to action by a director or officer
of the Corporation in his official capacity and as to action by such person in
another capacity while holding such office or position, and shall continue as to
a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 9.6. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any
- 30 -
34
person who is or was a director, officer, Advisory Board member, employee or
agent of the Corporation, or who, while a director, officer, Advisory Board
member, employee or agent of the Corporation, is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust, enterprise
or employee benefit plan, against any liability asserted against and incurred by
him in any such capacity, or arising out of his status as such, provided that no
insurance may be obtained by the Corporation for liabilities against which it
would not have the power to indemnify him under this Article IX or applicable
law.
Section 9.7. Constituent, Resulting or Surviving Corporations. For
the purposes of this Article IX, references to the "Corporation" shall include
all constituent corporations absorbed in a consolidation or merger as well the
resulting or surviving corporation so that any person who is or was a director,
officer, employee or agent of a constituent corporation or is or was serving at
the request of a constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under this Article IX with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity.
- 31 -
35
ARTICLE X.
AMENDMENTS
Section 10.1. General. Except as provided in the next succeeding
sentence and in the Charter, 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 Charter), at any regular or special meeting the notice of waiver
of notice of which shall have specified or summarized the proposed amendment,
alteration or repeal.
- 32 -
