<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EXCELSIOR PRIVATE EQUITY FUND II, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND Applied for
- ----------------------------------------------------------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
114 WEST 47TH STREET, NEW YORK, NEW YORK 10036-1532
- -------------------------------------------- --------------------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ---------------------------- -------------------------------------
- ---------------------------- -------------------------------------
- ---------------------------- -------------------------------------
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
------------------------------------------------------------------
(Title of class)
------------------------------------------------------------------
(Title of class)
Page 1 of 36
Exhibit Index is located at page 4.
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A complete description of the Common Stock, $0.01 par value per share, which
is to be registered hereunder is contained under the captions "The Company,"
"Terms of the Offering and Purchase of Shares" and "Description of Shares" in
the Prospectus forming part of the Registration Statement on Form N-2 (the
"Registration Statement") of Excelsior Private Equity Fund II, Inc. (the
"Company"), filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on March 24, 1997. Such description is
hereby incorporated by reference.
ITEM 2. EXHIBITS.
The following Exhibits are filed herewith.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
2.1 Articles of Incorporation of the Company.
2.2 By-Laws of the Company.
2.3 Specimen Stock Certificate.*
2.4 Subscription Agreement.
</TABLE>
* To be filed by Amendment.
Page 2 of 36
Exhibit Index is located at page 4.
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
(Registrant) EXCELSIOR PRIVATE EQUITY FUND II, INC.
--------------------------------------------------------------
Date March 24, 1997
-----------------------------------------------------
By: /s/ David I. Fann
-----------------------------------------------------
Name: David I. Fann
Title: President and Chief Executive Officer
Page 3 of 36
Exhibit Index is located at page 4.
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page
Exhibit No. Exhibit Number
- ------- --- ------- ------
<S> <C> <C>
2.1 Articles of Incorporation of the Company. 5
2.2 By-Laws of the Company. 15
2.3 Specimen Stock Certificate.*
2.4 Subscription Agreement. 32
</TABLE>
* To be filed by Amendment.
Page 4 of 36
Exhibit Index is located at page 4.
<PAGE> 1
EXHIBIT 2.1
Articles of Incorporation
of the Company
Page 5 of 36
Exhibit Index is located at page 4.
<PAGE> 2
- --------------------------------------------------------------------------------
STATE OF MARYLAND
515683
STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION
301 West Preston Street, Baltimore, Maryland 21201
MARCH 20, 1997
THIS IS TO ADVISE YOU THAT THE ARTICLES OF INCORPORATION FOR
EXCELSIOR PRIVATE EQUITY FUND II, INC. WERE RECEIVED AND APPROVED
FOR RECORD ON MARCH 20, 1997 AT 10:11 AM.
FEE PAID: 105.00
[SEAL, STATE OF MARYLAND] JOSEPH V. STEWART
AT5-081 CHARTER SPECIALIST
- --------------------------------------------------------------------------------
<PAGE> 3
ARTICLES OF INCORPORATION
OF
EXCELSIOR PRIVATE EQUITY FUND II, INC.
(a Maryland Corporation)
ARTICLE I
INCORPORATOR
The undersigned, David I. Fann, whose address is 114 West 47th Street,
New York, New York 10036-1532, being a natural person of the age of eighteen
(18) years or more, hereby forms a corporation (hereinafter referred to as the
("Company") under the General Corporation Law of the State of Maryland, as
amended (the ("General Corporation Law") authorizing the formation of
corporations.
ARTICLE II
NAME
The name of the Company is Excelsior Private Equity Fund II, Inc.
ARTICLE III
DURATION
The period of duration of the Company shall be ten years from the
final closing of the sale of shares of Common Stock (as herein defined) in the
Company's initial offering, except that the Managing Investment Adviser of the
Company (as defined in the Company's Registration Statement, as amended) shall
have the right, in its sole discretion, to extend the term of the Company for
up to two additional two-year periods after which approval of stockholders (the
"Stockholders") of the Company represent 66 2/3% of the Company's outstanding
shares may extend the term of the Company.
ARTICLE IV
PURPOSES AND POWERS
The purpose for which the Company is formed is to act as a closed-end
management investment company, electing status as a business development
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and to exercise and generally enjoy all of the powers, rights
and
<PAGE> 4
privileges granted to, or conferred upon, corporations by the General
Corporation Law and any other laws of Maryland, including, without limitation,
the following:
(1) To purchase, hold, invest and reinvest in, sell, exchange,
transfer, mortgage, and otherwise acquire and dispose of securities of every
kind, character and description.
(2) To exercise all rights, powers and privileges with reference to or
incident to ownership, use and enjoyment of any of such securities, including,
but without limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy any rights, title,
interest, powers or privileges under or with reference to any of such
securities; and to do any and all acts and things for the preservation,
protection, improvement and enhancement in value of any such securities,
including, without limitation, making available significant managerial
assistance to the issuers of any such securities.
(3) To purchase or otherwise acquire, own, hold, sell, exchange,
assign, transfer, mortgage, pledge or otherwise dispose of, property of all
kinds.
(4) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated, and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property.
(5) To borrow or raise moneys for any of the purposes of the Company,
and to mortgage or pledge the whole or any part of the property and franchises
of the Company, real, personal, and mixed, tangible or intangible, wheresoever
situated.
(6) To enter into, make and perform contracts and undertakings of
every kind for any lawful purpose, without limit as to amount.
(7) To issue, purchase, sell and transfer, hold, trade and deal in,
to the extent permitted under the General Corporation Law and applicable
securities laws, capital stock, bonds, debentures and other securities of the
Company, from time to time, to such extent as the board of directors of the
Company (the "Board" or "Directors," each individually, a "Director") shall,
consistent with the provisions of these Articles of Incorporation, determine;
and to repurchase, reacquire and redeem, to the extent permitted under the
General Corporation Law and applicable securities laws, the shares of its own
capital stock, bonds, debentures and other securities.
-2-
<PAGE> 5
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Company, and that they are in furtherance of, and
in addition to, and not in limitation of, the general powers conferred upon the
Company by the General Corporation Law or otherwise: nor shall the enumeration
of one thing be deemed to exclude another, although it be of like nature, not
expressed.
ARTICLE V
PRINCIPAL OFFICE AND RESIDENT AGENT
The post office address of the place at which the principal office of
the Company in the State of Maryland is located is c/o CT Corporation System,
32 South Street, Baltimore, Maryland 21202.
The name and post office address of the Company's resident agent in
the State of Maryland is CT Corporation System, 32 South Street, Baltimore,
Maryland 21202.
ARTICLE VI
CAPITAL STOCK
Section 1. The total number of shares of capital stock the Company
has authority to issue is 200,000 shares, with a par value of $0.01 per share,
designated as "Common Stock," such shares of Common Stock having an aggregate
par value of $2,000.
Section 2. Unless otherwise provided in these Articles of
Incorporation, the Board shall have the power to issue shares of capital stock
of the Company from time to time for such consideration and in such form as may
be fixed from time to time pursuant to the direction of the Board.
Section 3. Unless otherwise expressly provided in these Articles of
Incorporation or in any Articles Supplementary, the holder of each share of
capital stock of the Company shall be entitled to one vote for each full share,
and a fractional vote for each fractional share of capital stock then
outstanding in his or her name in the books of the Company. Holders of shares
of capital stock of the Company shall not be entitled to cumulative voting in
the election of Directors or on any other matter unless otherwise expressly
provided in any Articles Supplementary creating any new class of capital stock.
-3-
<PAGE> 6
Section 4. The presence in person or by proxy of the holders of
record of the majority of all shares of capital stock of the Company issued and
outstanding and entitled to vote thereat shall constitute a quorum for the
transaction of any business at all meetings of the Stockholders, except as
otherwise provided by the Investment Company Act, the General Corporation Law
and other applicable laws of Maryland or in these Articles of Incorporation.
Section 5. Except as otherwise provided in these Articles of
Incorporation or in the By-Laws, or as required by the Investment Company Act,
any action taken by the Stockholders of the Company shall be valid and
effective if taken or authorized by the affirmative vote of the holders of a
majority of the aggregate number of shares of capital stock of the Company
outstanding and entitled to vote thereon.
Section 6. No holder of shares of capital stock of the Company
shall, as such holder, have any preemptive right to purchase or subscribe for
any part of any new or additional issue of stock of any class, or of rights or
options to purchase any stock, or of securities convertible into, or carrying
rights or options to purchase, stock of any class, whether now or hereafter
authorized or whether issued for money, for a consideration other than money or
by way of a dividend or otherwise, and all such rights are hereby waived by
each holder of capital stock and of any other class of stock or securities of
the Company that may hereafter be created.
Section 7. All persons who shall acquire capital stock in the
Company shall acquire the same subject to the provisions of these Articles of
Incorporation.
ARTICLE VII
BOARD OF DIRECTORS
The number of Directors of the Company shall be fixed from time to
time in the manner provided in the By-Laws; however, no decrease in the number
of Directors shall have the effect of shortening the term of any incumbent
Director. The number constituting the initial Board is three, and the name of
the persons who are to serve as Directors until the first annual meeting of
Stockholders, or until their successors are elected and qualify, are Edith A.
Cassidy, Gene M. Bernstein and Stephen V. Murphy.
-4-
<PAGE> 7
ARTICLE VIII
MANAGEMENT OF THE AFFAIRS OF THE COMPANY
Section 1. All corporate powers and authority of the Company (except
as at the time otherwise provided by statute, by these Articles of
Incorporation or by the ByLaws) shall be vested in and exercised by the Board.
Section 2. The Board shall have the power to fix an initial offering
price for the shares of Common Stock, which shall yield to the Company not less
than the par value thereof, at which price the shares of the Common Stock of
the Company shall be offered for sale, and to determine from time to time
thereafter the offering price which shall yield to the Company not less than
the par value thereof from sales of the shares of its capital stock; provided,
however, that sales by the Company of its shares of capital stock for less than
net asset value (as defined in the Investment Company Act) shall be in
accordance with the applicable requirements of the Investment Company Act.
Section 3. The Board may from time to time declare and pay dividends
or distributions, in stock or in cash, on the Company's capital stock;
provided, such dividends or distributions on shares of stock shall be paid only
out of earnings, surplus, or other lawfully available assets.
Section 4. The Board shall have the power in its discretion to
distribute to the Stockholders of the Company in any fiscal year as dividends,
including dividends designated in whole or in part as capital gains
distributions, amounts sufficient, in the opinion of the Board, to enable the
Company to qualify as a "regulated investment company" under the Internal
Revenue Code of 1986, as amended, or any successor or comparable statute
thereof, and regulations promulgated thereunder (collectively, the "Code"), and
to avoid liability of the Company for federal income tax in respect of that
year and to make other appropriate adjustments in connection therewith.
Section 5. The Board shall have the power, in its discretion, to
make such elections as to the tax status of the Company as may be permitted or
required under the Code as presently in effect or as amended, without the vote
of Stockholders of the Company.
Section 6. The Board shall have the power from time to time to
determine whether and to what extent, and at what times and places and under
what conditions the accounts and books of the Company or any of them shall be
open to the inspection of Stockholders, and no Stockholder shall have any right
to inspect
-5-
<PAGE> 8
any account, book or document of the Company except to the extent required by
statute or permitted by the Company's By-Laws.
Section 7. To the extent permitted under applicable law, the Company
may purchase shares of its capital stock upon such terms and conditions and for
such consideration as the Board shall deem advisable.
Section 8. The net asset value of the property and assets of the
Company shall be determined in accordance with the Investment Company Act and
with generally accepted accounting principles, and at such times as the Board
may direct, by deducting from the total market or appraised value of all of the
property and assets of the Company, all debts, obligations and liabilities of
the Company (including, but without limitation of the generality of any of the
foregoing, any or all debts, obligations, liabilities or claims of any and
every kind and nature, whether fixed, accrued, or unmatured, and any reserves
or charges, determined in accordance with generally accepted accounting
principles, for any or all thereof, whether for taxes, including estimated
taxes, or unrealized book profits, expenses, contingencies or otherwise).
Section 9. In addition to the powers and authorities granted herein
and by statute expressly conferred upon it, the Board is authorized to exercise
all powers and do all acts that may be exercised or done by the Company
pursuant to the provisions of the laws of the State of Maryland, these Articles
of Incorporation and the By-Laws of the Company.
ARTICLE IX
DETERMINATIONS AS TO ACCOUNTING MATTERS
Any determination made in good faith, so far as accounting matters are
involved, in accordance with generally accepted accounting principles by or
pursuant to the authority or the direction of the Board, as to (i) the amount
of assets, obligations or liabilities of the Company, (ii) the amount of net
income of the Company from dividends and interest for any period or amounts at
any time legally available for the payment of dividends, (iii) the amount of
any reserves or charges set up and the propriety thereof, as to the time of or
purpose for creating reserves or as to the use, alteration or cancellation of
any reserves or charges (whether or not any obligation or liability for which
such reserves or charges shall have been created, shall have been paid or
discharged or is then or thereafter required to be paid or discharged), (iv)
the price of any security owned by the Company or (v) any other matters
relating to the issuance, sale, redemption or other acquisition or disposition
of securities or shares of capital stock of the Company, shall be
-6-
<PAGE> 9
final and conclusive, and shall be binding upon the Company and all holders of
its capital stock, past, present and future, and shares of the capital stock of
the Company are issued and sold on the condition and understanding, evidenced
by the purchase of shares of capital stock or acceptance of share certificates,
that any and all such determinations shall be binding as aforesaid. No
provision of these Articles of Incorporation shall be effective to (a) require
a waiver of compliance with any provision of the Securities Act of 1933, as
amended (the "Securities Act"), the Investment Company Act or of any valid
rule, regulation or order of the Securities and Exchange Commission thereunder
or (b) protect or purport to protect any Director or officer of the Company
against any liability to the Company or its security holders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
ARTICLE X
BY-LAWS
The initial By-Laws of the Company shall be adopted by the Board. The
power to alter, amend or repeal the By-Laws of the Company or adopt new By-Laws
is vested in the Board, subject to repeal or change by action of the
Stockholders of the Company.
ARTICLE XI
LIMITATIONS ON LIABILITY; INDEMNIFICATION
Section 1. To the fullest extent that limitations on the liability
of directors and officers are permitted by the General Corporation Law, no
Director or officer of the Company shall have any liability to the Company or
the Stockholders for damages. This limitation on liability applies to events
occurring at the time a person serves as a Director or officer of the Company
whether or not such person is a Director or officer at the time of any
proceeding in which liability is asserted.
Section 2. 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 or officer of the
Company or is or was serving while a Director or officer of the Company at the
request of the Company 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 Company
against judgments,
-7-
<PAGE> 10
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 fullest extent permissible under the General
Corporation Law, the Securities Act and the Investment Company Act, as such
statutes are now or hereafter in force. In addition, the Company shall also
advance expenses to its currently acting and its former Directors and officers
to the fullest extent that indemnification of Directors and officers is
permitted by the General Corporation Law, the Securities Act and the Investment
Company Act. The Board may by By-Law, resolution or agreement make further
provision for indemnification of Directors, officers, employees and agents to
the fullest extent permitted by the General Corporation Law.
Section 3. No provision of this Article XI shall be effective to
protect or purport to protect any Director or officer of the Company against
any liability to the Company or its Stockholders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office.
Section 4. References to the General Corporation Law in this Article
XI are to that law as from time to time amended. No amendment to these
Articles of Incorporation shall affect any right of any person under this
Article XI based on any event, omission or proceeding prior to the amendment.
ARTICLE XII
AMENDMENTS
From time to time any of the provisions of these Articles of
Incorporation may be amended, altered or repealed (including any amendment that
changes the terms of any of the outstanding stock by classification,
reclassification or otherwise), and other provisions that may, under the laws
of the State of Maryland and applicable securities laws at the time in force,
be lawfully contained in articles of incorporation may be added or inserted
upon the vote of a majority of the shares of capital stock of the Company
outstanding and entitled to vote thereon. All rights at any time conferred
upon the Stockholders of the Company by these Articles of Incorporation are
subject to the provisions of this Article XII.
The term "Articles of Incorporation" as used herein and in the By-Laws
of the Company shall be deemed to mean these Articles of Incorporation as from
time to time amended, restated or supplemented.
-8-
<PAGE> 11
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
18th day of March, 1997. I have signed these articles and acknowledge same to
be my act.
/s/ DAVID I. FANN
--------------------------
David I. Fann
Sole Incorporator
-9-
<PAGE> 1
EXHIBIT 2.2
By-Laws of the Company
Page 16 of 36
Exhibit Index is located at page 4.
<PAGE> 2
EXCELSIOR PRIVATE EQUITY II, INC.
(a Maryland corporation)
BY-LAWS
These by-laws ("By-Laws") are made as of the 20th day of March, 1997
and adopted pursuant to Article X of the Articles of Incorporation establishing
Excelsior Private Equity Fund II, Inc. (the "Company") dated March 20, 1997, as
from time to time amended, restated or supplemented (hereinafter called the
"Articles"). All words and terms capitalized in these By-Laws shall have the
meaning or meanings set forth for such words or terms in the Articles unless
otherwise noted.
ARTICLE I
OFFICES
The principal office of the Company shall be in Baltimore, State of
Maryland.
The principal executive office of the Company shall be at 114 West
47th Street, New York, New York 10036-1532.
The Company may have such other offices in such places as the Board of
Directors (the "Board" or "Directors," each individually, a "Director") may
from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Special Meetings. Special meetings of the Stockholders,
unless otherwise provided by law or by the Articles, may be called for any
purpose or purposes by a majority of the Board or the President, and, upon
satisfaction of statutory requirements, shall be called on the written request
of the Stockholders of at least 25% of the outstanding capital stock of the
Company entitled to vote at such meeting.
2.2. Annual Meeting. An annual meeting of the Stockholders (the
"Stockholders") of the Company shall be held on such date and at such hour as
may from time to time be designated by the Board and stated in the notice of
such meeting; provided, however, that the Company shall not be required to hold
an annual meeting of its Stockholders in any year unless the Investment Company
Act of 1940, as amended (the "Investment Company Act") or other applicable law
requires an election of Directors by the Stockholders or an annual meeting is
otherwise required by law.
<PAGE> 3
2.3. Place of Meetings. Any annual or special meeting of the
Stockholders shall be held at such place within the United States as the Board
may from time to time determine.
2.4. Notice of Meetings; Waiver of Notices. Written notice of the
place, date and time of the holding of each annual and special meeting of the
Stockholders and the purpose or purposes of each special meeting shall be given
personally or by mail, not less than 10 nor more than 90 days before the date
of such meeting, to each Stockholder entitled to notice of the meeting. Notice
by mail shall be deemed to be duly given when deposited in the United States
mail or similar means addressed to the Stockholder at the Stockholder's address
as it appears on the records of the Company, with postage or any fees thereon
prepaid.
Notice of any meeting of Stockholders shall be deemed waived by any
Stockholder who shall attend such meeting in person or by proxy, or who shall,
either before or after the meeting, submit a signed waiver of notice which is
filed with the records of the meeting. When a meeting is adjourned to another
time and place, unless after the adjournment the Board shall fix a new record
date for any adjourned meeting or the adjournment is for more than 30 days,
notice of such adjourned meeting need not be given if the time and place to
which the meeting shall be adjourned is announced at the meeting at which the
adjournment is taken.
2.5. Quorum and Adjournment. At all meetings of the Stockholders,
the holders of a majority of all shares of stock of the Company entitled to
vote at the meeting present in person or by proxy shall constitute a quorum for
the transaction of any business, except as otherwise provided by statute or by
the Articles or these By-Laws. A meeting of Stockholders convened on the date
for which it was called may be adjourned as permitted under the laws of the
State of Maryland. If a quorum shall not be present or represented at such
meeting of Stockholders, a majority of the Stockholders entitled to vote
thereat present in person or represented by proxy, shall have power to adjourn
the meeting. At any adjourned session of a meeting at which a quorum shall be
present or represented, any business may be transacted that might have been
transacted at the meeting as originally noticed. The absence from any meeting
of holders of the number of shares of stock of the Company in excess of a
majority thereof which may be required by the laws of the State of Maryland,
the Investment Company Act or any other applicable statute, the Articles, or
these By-Laws, for action on any given matter shall not prevent action at such
meeting on any other matter or matters which may properly come before the
meeting if there shall be present thereat in person or by proxy, holders of the
number of shares of stock of the Company required for action in respect of such
other matter or matters.
2
<PAGE> 4
2.6. Organization. At each meeting of the Stockholders, the
Chairman of the Board (if one has been designated by the Board pursuant to
Section 5.1 of Article V hereof), or in his absence or inability to act, the
President, shall act as chairman of the meeting. The Secretary, or in the
Secretary's absence or inability to act, any person appointed by the chairman
of the meeting, shall act as secretary of the meeting and keep the minutes
thereof.
2.7. Order of Business. The order of business at all meetings of
the Stockholders shall be as determined by the chairman of the meeting.
2.8. Voting. Except as otherwise provided by statute or the
Articles, each holder of record of shares of stock of the Company having voting
power shall be entitled at each meeting of the Stockholders to one vote for
every share of such stock standing in the name of such Stockholder on the
record of Stockholders of the Company as of the record date determined pursuant
to Article X hereof.
Each Stockholder entitled to vote at any meeting of Stockholders may
authorize another person or persons to act for him by a proxy signed by such
Stockholder or his attorney-in-fact. No proxy shall be valid after the
expiration of eleven months from the date thereof, unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the Stockholder
executing it, except in those cases where such proxy states that it is
irrevocable and where an irrevocable proxy is permitted by law. A proxy
purporting to be executed by or on behalf of a Stockholder shall be deemed
valid unless challenged on or prior to its exercise. Except as otherwise
provided by applicable law, the Articles or these By-Laws, any corporate action
to be taken by vote of the Stockholders shall be authorized by a majority of
the total votes cast at a meeting of Stockholders by the Stockholders present
in person or represented by proxy and entitled to vote on such action.
2.9. Inspectors of Election. In advance of any meeting of the
Stockholders, the Directors may appoint inspectors of election to act at the
meeting or any adjournment thereof (the "Inspectors of Election"). If
Inspectors of Election are not so appointed, the chairman, if any, of any
meeting of the Stockholders may, and on the request of any Stockholder or his
or her proxy shall, appoint Inspectors of Election of the meeting. The number
of Inspectors of Election shall be either one or more. If appointed at the
meeting on the request of one or more Stockholders or proxies, a majority of
votes cast shall determine whether one or more Inspectors of Election are to be
appointed, but failure to allow such determination by the Stockholders shall
not affect the validity of the appointment of Inspectors of Election. In case
any person appointed as Inspector of Election fails to appear or fails or
refuses to act, the vacancy may be
3
<PAGE> 5
filled by appointment made by the Directors in advance of the convening of the
meeting or at the meeting by the person acting as chairman. Inspectors, before
entering upon the discharge of their duties, shall take and sign an oath to
execute faithfully the duties of inspector at such meeting with strict
impartiality and according to the best of their ability. The Inspectors of
Election shall determine the number of outstanding shares owned by
Stockholders, the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of proxies,
shall receive votes, ballots or consents, shall hear and determine all
challenges and questions in any way arising in connection with the right to
vote, shall count and tabulate all votes or consents, determine the results,
and do such other acts as may be proper to conduct the election or vote with
fairness to all Stockholders. If there are three or more Inspectors of
Election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. On request of the
chairman, if any, of the meeting, or of any Stockholder or his or her proxy,
the Inspectors of Election shall make a report in writing of any challenge or
question or matter determined by them and shall execute a certificate of any
facts found by them. No Director or candidate for office of Director shall act
as inspector of an election of Directors. Inspectors of Election need not be
Stockholders.
2.10. Records of Meetings of Stockholders. At each meeting of the
Stockholders there shall be open for inspection the minutes of the last
previous meeting of Stockholders and a list of the Stockholders, certified to
be true and correct by the Secretary or other proper agent of the Company, as
of the record date of the meeting. Such list of Stockholders shall contain the
name of each Stockholder in alphabetical order, the Stockholder's address and
shares owned by such Stockholder. Stockholders shall have the right to inspect
books and records of the Company during normal business hours for any purpose
not harmful to the Company.
2.11. Consent of Stockholders in Lieu of Meeting. Except as
otherwise provided by law or the Articles, any action required to be taken at
any annual or special meeting of Stockholders, or any action which may be taken
at any annual or special meeting of such Stockholders, may be taken without a
meeting, without prior notice and without a vote, if the following are filed
with the records of Stockholders meetings: (i) a unanimous written consent
which sets forth the action and is signed by each Stockholder entitled to vote
on the matter and (ii) a written waiver of any right to dissent signed by each
Stockholder entitled to notice of the meeting but not entitled to vote thereat.
4
<PAGE> 6
ARTICLE III
BOARD OF DIRECTORS
3.1. Management of the Company. The property, business and affairs
of the Company shall be managed under the direction of its Board, and all of
the powers of the Company may be exercised by or under authority of the Board
except as conferred upon or reserved to the Stockholders by law, by the
Articles or by these By-Laws.
3.2. Number of Directors and Tenure. The number of Directors of
the Company shall, until further action is taken by the Board, be three. By
vote of a majority of the entire Board, the number of Directors fixed by the
Articles or by these By-Laws may be increased or decreased from time to time up
to a maximum of 12, but shall never be less than two. Each Director shall hold
office until his successor is duly elected and qualifies.
3.3. Vacancies. Except as otherwise required by the Investment
Company Act, any vacancy occurring in the Board for any cause other than by
reason of an increase in the number of Directors may be filled by a majority of
the remaining members of the Board, although such majority is less than a
quorum. Any vacancy occurring by reason of an increase in the number of
Directors may be filled by an action of a majority of the entire Board. A
Director elected by the Board to fill a vacancy shall be elected to hold office
until the next annual meeting of Stockholders or until a successor is elected
and qualifies.
At any annual meeting of Stockholders, Stockholders shall be entitled
to elect Directors to fill any vacancies in the Board that have arisen since
the preceding annual meeting of Stockholders (whether or not any such vacancy
has been filled by election of a new Director by the Board) and amy Director so
elected by the Stockholders shall hold office until his successor shall be
elected and shall qualify.
3.4. Removal. A Director may be removed only for cause, and not
without cause, and only by action of the Stockholders taken by the holders of
at least 75% of the shares of capital stock then entitled to vote for such
Director in an election of Directors.
3.5. Compensation of Directors. Directors may receive compensation
for services to the Company in their capacities as Directors or otherwise in
such manner and in such amounts as may be fixed from time to time by the Board.
3.6. Power to Issue and Sell Stock. The Board may from time to
time authorize by resolution the issuance and sale
5
<PAGE> 7
of any of the Company's authorized shares to such persons as the Board shall
deem advisable.
3.7. Power to Declare Dividends. The Board, from time to time as
it may deem advisable, may declare and the Company may pay dividends, in cash,
property, or shares of the Company available for dividends out of any source
available for dividends, to the Stockholders according to their respective
rights and interests.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
4.1. Place of Meetings. Meetings of the Board, regular or special,
may be held at any place in or out of the State of Maryland as the Board may
from time to time determine or as shall be specified in the notice of such
meeting.
4.2. Annual Meeting. The first meeting of each newly elected Board
shall be held as soon as practicable after the meeting of Stockholders at which
the Directors were elected or, in the absence of such annual Stockholders'
meeting, at such time and place as the Board may provide. No notice of such
meeting shall be necessary if held immediately after the adjournment, and at
the site, of the meeting of Stockholders.
4.3. Regular Meetings. Regular meetings of the Board may be held
without notice at such time and place as shall from time to time be determined
by the Board.
4.4. Special Meetings. Special meetings of the Directors shall be
held upon the call of the Chairman, if any, the President, the Secretary, or
any two Directors, at such time, on such day and at such place, as shall be
designated in the notice of the meeting.
4.5. Notice. Notice of every special meeting shall be given by
mail (which term shall include overnight mail) or by electronic transmission
(which term shall include without limitation by telephone, cablegram or
telefacsimile) or delivered personally, to each Director at his or her business
address as set forth in the records of the Company. Such notice shall be
delivered not later than two days preceding the meeting. Notice of a meeting
of Directors may be waived before or after any meeting by signed written
waiver. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board need be stated in the notice or waiver of notice of such
meeting, and no notice need be given of action proposed to be taken by written
6
<PAGE> 8
consent. The attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting.
4.6. Chairman; Records. The Directors shall elect a Chairman of
the Board from among their number, pursuant to the provisions of Article V of
these By-Laws. Such Chairman of the Board shall act as chairman at all
meetings of the Directors; in his or her absence the President shall act as
chairman; and, in the absence of both of them, the Directors present shall
elect one of their number to act as temporary chairman. The results of all
actions taken at a meeting of the Directors, or by written consent of the
Directors, shall be recorded by the Secretary.
4.7. Committees. The Board may appoint from among its members an
Executive Committee and other committees composed of two or more Directors, and
may delegate to such committees any or all of the powers of the Board in the
management of the business and affairs of the Company except the power to
declare dividends or distributions on stock, to issue stock, to recommend to
stockholders any action that requires stockholders' approval, to fill a vacancy
on the Board, to amend these By-Laws or to approve any merger or share exchange
which does not require stockholder approval. In the absence of any member of
any such committee, the members thereof present at any meeting, whether or not
they constitute a quorum, may appoint a member of the Board to act in the place
of such absent member. Committees shall keep minutes of their proceedings and
shall report the same to the Board at the meeting next succeeding, and any
action by a committee shall be subject to revisions and alteration by the
Board, provided that no rights of third persons shall be affected by any such
revision or alteration.
4.8. Quorum. At all meetings of the Board, a majority of the
entire Board shall constitute a quorum for the transaction of business and the
action of a majority of the Directors present at any meeting at which a quorum
is present shall be the action of the Board unless the concurrence of a greater
proportion is required for such action by statute, the Articles or these
By-Laws. If a quorum shall not be present at any meeting of Directors, the
Directors present thereat may by a majority vote adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present.
4.9. Consent of Directors on Lieu of Meeting. Any action required
or permitted to be taken at any meeting of the Board 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 designated from time to time by the Directors. Any two or more of
the offices may be held by the same person,
7
<PAGE> 9
provided, however, that no one person may serve as both President and Vice
President, if any, and provided further, that any person who holds more than
one office in the Company may not act in more than one capacity to execute,
acknowledge or verify any instrument required by law to be executed,
acknowledged or verified by more that one officer. The Directors may designate
a Vice President, if any, as an Executive Vice President and may designate the
order in which any other Vice Presidents may act. No officer of the Company
need be a Director. The Board may determine what, if any, compensation shall
be paid to officers of the Company.
4.10. Election and Tenure. At the organizational meeting, the
Directors shall elect the Chairman, President, Secretary, Treasurer and such
other officers as the Directors shall deem necessary or appropriate in order to
carry out the business of the Company. The Chairman of the Board and such
officers shall hold office until resignation or removal in accordance with
Section 5.3 and until their successors have been duly elected and qualified.
The Directors may fill any vacancy in or add any additional officers at any
time.
4.11. Removal of Officers; Resignation. Any officer may be removed
at any time, with or without cause, by action of a majority of the Directors
whenever in the judgment of the Board the best interests of the Company will be
served thereby. This provision shall not prevent the making of a contract of
employment for a definite term with any officer and shall have no effect upon
any cause of action which any officer may have as a result of removal in breach
of a contract of employment. Any officer may resign at any time by notice in
writing signed by such officer and delivered or mailed to the President or
Secretary, and such resignation shall take effect immediately, or at a later
date according to the terms of such notice in writing.
4.12. Bonds and Surety. Any officer may be required by the
Directors to be bonded for the faithful performance of his or her duties in
such amount and with such sureties as the Directors may determine.
4.13. Chairman of the Board. The Chairman of the Board shall, if
present, preside at meetings of the Stockholders and, if present, meetings of
the Directors of the Company. The Chairman may sign and execute in the name of
the Company deeds, mortgages, bonds, contracts or other instruments. The
Chairman shall, when requested, counsel with and advise the other officers of
the Company and shall perform such other duties as he may agree with the
President or as the Board may from time to time determine.
4.14. President and Vice-Presidents. The President shall be the
chief executive officer of the Company and, subject
8
<PAGE> 10
to the control of the Directors, shall have general supervision, direction and
control of the business of the Company and of its employees and shall exercise
such general powers of management as are usually vested in the office of
president of a corporation. In the absence of the Chairman of the Board, the
President shall preside at all meetings of the Stockholders and at all meetings
of the Directors. The President shall be, ex officio, a member of all standing
committees. Subject to direction of the Directors, the President shall have
the power, in the name and on behalf of the Company, to execute any and all
loan documents, contracts, agreements, deeds, mortgages, and other instruments
in writing, and to employ and discharge employees and agents of the Company.
Unless otherwise directed by the Directors, the President shall have full
authority and power, on behalf of all of the Directors, to attend and to act
and to vote, on behalf of the Company at any meetings of business organizations
in which the Company holds an interest, or to confer such powers upon any other
persons, by executing any proxies duly authorizing such persons. The President
shall have such further authorities and duties as the Directors shall from time
to time determine. In the absence or disability of the President, the Vice
Presidents in order of their rank or the Vice President, if any, designated by
the Directors, shall perform all of the duties of the President, and when so
acting shall have all the powers of and be subject to all of the restrictions
upon the President. Subject to the direction of the Chairman, the President
and the Treasurer, any Vice President shall have the power in the name and on
behalf of the Company to execute any and all loan documents, contracts,
agreements, deeds, mortgages and other instruments in writing, and, in
addition, shall have such other duties and powers as shall be designated from
time to time by the Directors, the Chairman, or the President.
4.15. Secretary. The Secretary shall keep the minutes of all
meetings of, and record all votes of, Stockholders, Directors and any
committees of Directors, provided that, in the absence or disability of the
Secretary, the Directors may appoint any other person to keep the minutes of a
meeting and record votes. The Secretary shall attest the signature or
signatures of the officer or officers executing any instrument on behalf of the
Company. The Secretary shall also perform any other duties commonly incident
to such office in a Maryland corporation, and shall have such other authorities
and duties as the Directors shall from time to time determine.
4.16. Treasurer. Except as otherwise directed by the Directors, the
Treasurer shall have the general supervision of the monies, funds, securities,
notes receivable and other valuable papers and documents of the Company, and
shall have and exercise under the supervision of the Directors and of the
Chairman and the President all powers and duties normally incident to his
office. He may endorse for deposit or collection all notes, checks and other
instruments payable to the Company or
9
<PAGE> 11
to its order. He or she shall deposit all funds of the Company as may be
ordered by the Directors, the Chairman or the President. He shall keep
accurate account of the books of the Company's transactions which shall be the
property of the Company and which, together with all other property of the
Company in his possession, shall be subject at all times to the inspection and
control of the Directors. Unless the Directors shall otherwise determine, the
Treasurer shall be the principal accounting officer of the Company and shall
also be the principal financial officer of the Company. He or she shall have
such other duties and authorities as the Directors shall from time to time
determine. Notwithstanding anything to the contrary herein contained, the
Directors may authorize any adviser or administrator to maintain bank accounts
and deposit and disburse funds on behalf of the Company.
4.17. Other Officers and Duties. The Directors may elect such other
officers and assistant officers as they shall from time to time determine to be
necessary or desirable in order to conduct the business of the Company.
Assistant officers shall act generally in the absence of the officer whom they
assist and shall assist that officer in the duties of his office. Each
officer:, employee and agent of the Company shall have such other duties and
authority as may be conferred upon him by the Directors or delegated to him by
the President.
ARTICLE V
CUSTODY OF SECURITIES
5.1. Employment of Custodian. The Company shall have the option to
act as a self-custodian in accordance with the provisions set forth in Section
17(f) of the Investment Company Act and Rule 17f-2 thereunder or place, and at
all times maintain, in the custody of a custodian (including any sub-custodian
for the custodian) all funds, securities and similar investments owned by the
Company. The custodian, if any, (and any sub-custodian) shall be an
institution conforming to the requirements of Section 17(f) of the Investment
Company Act and the rules of the United States Securities and Exchange
Commission (the "Commission") thereunder. The custodian, if any, shall be
appointed from time to time by the Board which shall fix its remuneration.
5.2. Appointment and Duties. The Board may at any time employ a
custodian or custodians with authority as its agent, but subject to such
restrictions, limitations and other requirements, if any, as may be contained
in these By-Laws:
(1) to hold the securities owned by the Company and deliver
the same upon written order;
10
<PAGE> 12
(2) to receive and receipt for any moneys due to the Company
and deposit the same in its own banking affiliate or elsewhere as the
Directors may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Directors, to keep the books and
accounts of the Company and furnish clerical and accounting services;
and
(5) if authorized to do so by the Directors, to compute the
net income and net assets of the Company;
all upon such basis of compensation as may be agreed upon between the Directors
and the custodian. The Directors may also authorize the custodian to employ one
or more sub-custodians, from time to time, to perform such of the acts and
services of the custodian and upon such terms and conditions as may be agreed
upon between the custodian and such sub-custodian and approved b~ the
Director.
5.3. Central Certificate System. Subject to such rules,
regulations and orders as the Commission may adopt, the Directors may direct
the custodian to deposit all or any part of the securities owned by the Company
in a system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, as amended, any such
other person or entity with which the Directors may authorize deposit in
accordance with the Investment Company Act, pursuant to which system all
securities of any particular class or series of any issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of such securities. All such deposits shall be
subject to withdrawal only upon the order of the Company.
5.4. Termination of Custodian Agreement. Upon termination of the
custodian agreement, if any, or inability of the custodian to continue to
serve, the Board 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 shall call as promptly as possible a special
meeting of the Stockholders to determine whether the Company 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 capital stock entitled to
vote of the Company, the custodian shall deliver and pay over all property of
the Company held by it as specified in such vote.
11
<PAGE> 13
ARTICLE VI
CAPITAL STOCK
6.1. Issuance of Certificates. Each holder of stock of the Company
shall be entitled to have a certificate or certificates, in such form as shall
be approved by the Board representing the number of shares of stock of the
Company owned by such Stockholder. The certificates representing shares of
stock shall be signed by or in the name of the Company by the President and by
the Secretary or the Treasurer and sealed with the seal of the Company. Any or
all of the signatures or the seal on the certificate may be by facsimile. 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 Company with the same effect as if such officer,
transfer agent or registrar were still in office at the date of issue.
The Board may make such additional rules and regulations, not
inconsistent with these By-Laws, as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the Company.
It may appoint, or authorize any officer or officers to appoint, one or more
transfer agents or one or more transfer clerks and one or more registrars and
may require all certificates for shares of stock to bear the signature or
signatures of any of them.
6.2. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Company shall immediately
notify the Company of any loss, destruction or mutilation of such certificate,
and the Company may issue a new certificate of stock in the place of any
Certificate theretofore issued by it which the owner thereof shall allege to
have been lost or destroyed or which shall have been mutilated, and the Board
may, in its discretion, require such owner or such owner's legal
representatives to give to the company a bond in such sum, limited or
unlimited, and in such form and with such surety or guaranty, to indemnify the
Company against any claim that may be made against it on account of the alleged
loss or destruction of any such certificate, or issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Maryland.
6.3. Stock Ledger; Transfer of Capital Stock. The Company shall
maintain at the offices of its transfer agent an original stock ledger
containing the names and addresses of all Stockholders and the number of shares
held by each Stockholder. Such stock ledger may be in written form or any
other form
12
<PAGE> 14
capable of being converted into written form within a reasonable time for
visual inspection.
The Company shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares entitled to
receive dividends and to vote as such owner, and shall not be bound to
recognize any legal, equitable or other claim to or interest in such shares on
the part of any other person, whether or not it shall have received express or
other notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Transfers of shares of the Company shall be made on the stock records
of the Company only by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with the transfer agent or transfer clerk, and on surrender of the
certificate or certificates, if issued, for such shares properly endorsed or
accompanied by a duly executed stock transfer power and the payment of all
taxes thereon.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
7.1. Indemnification of Officers, Directors, Employees and Agents.
The Company shall indemnify each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (each, a
"Proceeding"), by reason of the fact that he is or was a Director, officer,
employee or agent of the Company or is or was serving at the request of the
Company as a director, officer, employee, agent, partner or trustee of another
corporation, partnership, joint venture, trust or other enterprise, against all
judgments, penalties, fines and settlements and against all reasonable
expenses, including attorneys' fees, actually incurred by him in connection
with such Proceeding to the fullest extent permitted by law, provided that:
(a) such person acted in good faith and (i) in the case of
conduct in such person's official capacity with the Company, in a
manner he reasonably believed to be in the best interests of the
Company and (ii) in all other cases, in a manner he reasonably
believed not opposed to the best interests of the Company;
(b) with respect to any criminal proceeding, such person had
no reasonable cause to believe his conduct was unlawful;
13
<PAGE> 15
(c) unless ordered or permitted by a court, indemnification
shall be made only as authorized in the specific case upon (i) a
determination that indemnification of such person is proper in the
circumstances because he has met the applicable standard of conduct
set forth in subparagraphs (a) and (b) above, and (ii) such other
authorizations and determinations as may be required by law to be
made, by (A) the Board of the Company by the vote of a majority of a
quorum consisting of Directors who are neither "interested persons" of
the Company as defined in the Investment Company Act nor parties to
such Proceeding or if such quorum cannot be obtained, by a majority
vote of a committee of the Board 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, 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 Company acting in accordance with the Articles and
the By-Laws of the Company and applicable law;
(d) in the case of a Proceeding by or in the right of the
Company to procure a judgment in its favor, no indemnification shall
be made except for the payment of expenses reasonably incurred by such
person in connection therewith; provided, however, that if such person
shall have been adjudged to be liable for negligence or misconduct in
the performance of his duties to the Company, no indemnification shall
be made with respect to the expense incurred by such person in
connection with such Proceeding unless, and only to the extent that,
the court in which such Proceeding is brought, or a court of equity in
the county or other local jurisdiction in which the Company has its
principal office, shall determine upon application that, despite
adjudication of liability but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper; and
(e) no indemnification or other protection shall be made or
given to any Director or officer of the Company against any liability
to the Company or to its Stockholders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his
office.
Expenses (including attorneys' fees) incurred in defending a
Proceeding will be paid by the Company in advance of
14
<PAGE> 16
the final disposition thereof to the fullest extent permitted by law.
The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall create a
rebuttable presumption that such person has not met the applicable standard of
conduct set forth in subparagraphs (a) and (b) above.
7.2. Insurance of Officers, Directors, Employees and Agents. The
Company may purchase and maintain insurance on behalf of any person who is or
was a Director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee, partner,
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in or arising out of his position, whether or not the Company would have the
power to indemnify him against such liability.
ARTICLE VIII
SEAL
The corporate seal shall have inscribed thereon the name of the
Company, the year of its organization and the words "Corporate Seal" and
"Maryland". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE IX
RECORD DATE
The Board may fix in advance a date as the record date for the purpose
of determining Stockholders entitled to notice of, or to vote at, any meeting
of Stockholders, or Stockholders entitled to receive payment of any dividend or
distribution or the allotment of any rights, or in order to make a
determination of Stockholders for any other purpose. Such date in any case
shall be not more than 90 days, and in case of a meeting of Stockholders not
less than 10 days, prior to the date on which the particular action requiring
such determination of Stockholders is to be taken.
15
<PAGE> 17
ARTICLE X
RECORD DATE
10.1. Depositories. In accordance with Article VI of these By-Laws,
,the funds of the Company shall be deposited in such depositories as the
Directors shall designate and shall be drawn out on checks, drafts or other
orders signed by such officer, officers, agent or agents (including any adviser
or administrator), as the Directors may from time to time authorize.
10.2. Signature. All contracts and other instruments shall be
executed on behalf of the Company by such officer, officers, agent or agents,
as provided in these By-Laws or as the Directors may from time to time by
resolution or authorization provide.
10.3. Fiscal Year. The fiscal year of the Company shall end on
December 31 of each year, subject, however, to change from time to time by the
Board.
ARTICLE XI
AMENDMENT OF BY-LAWS
11.1. Amendment and Repeal of By-Laws. In accordance with Article X
of the Articles, the Directors shall have the power to alter, amend or repeal
these By-Laws or adopt new by-laws at any time. The Directors shall in no
event adopt by-laws which are in conflict with the Articles, the General Laws
of the State of Maryland, the Investment Company Act or other applicable
federal securities laws.
16
<PAGE> 1
EXHIBIT 2.4
Subscription Agreement
Page 33 of 36
Exhibit Index is located at page 4.
<PAGE> 2
SPECIMEN ONLY - NOT FOR PURCHASES
EXCELSIOR PRIVATE EQUITY FUND II, INC.
SUBSCRIPTION AGREEMENT
Excelsior Private Equity
Fund II, Inc.
114 West 47th Street
New York, New York 10036
Ladies and Gentlemen:
The undersigned, by signing this Subscription Agreement, and subject to
the terms and conditions hereof and the provisions of the Prospectus of
Excelsior Private Equity Fund II, Inc. (the "Company") (the "Prospectus"),
hereby subscribes for shares of common stock (the "Shares") of the Company in
the aggregate investment amount set forth on the reverse side hereof (the
undersigned's "Investment Amount"), and herewith encloses payment in an amount
equal to such Investment Amount. The undersigned understands that such funds
will be held by United States Trust Company of New York as Escrow Agent, and
will be returned promptly, together with any interest earned thereon, to the
undersigned, in the event that at least 100,000 Shares are not subscribed for
and the payments therefor are not made by July 31, 1997 or such other subsequent
date not later than December 31, 1997 as the Managing Investment Adviser and the
Company may determine.
1. Acceptance of Subscription. It is understood and agreed that the
Company shall have the right, in its sole discretion, to accept or reject this
subscription, in whole or in part. Subscriptions need not be accepted in the
order received, and Shares may be allocated in the event of oversubscription.
2. Right to Refund. The undersigned shall have the right to receive a
refund of their investment for a period of five business days from the date
payment for the investment is submitted by the undersigned. Such request may
be made in any fashion but, if made other than in an originally signed and
written communication, must be confirmed with such a communication within 15
business days after the date payment is submitted.
3. Representation and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Company and UST Financial Services Corp.,
and each officer, director, controlling person, and agent of the Company and
UST Financial Services Corp., that:
(a) the undersigned meets the investor suitability standards
set forth in the Prospectus under "Investor Suitability
Standards;"
(b) if an investment in the Company is being made by a
corporation, partnership, trust, or estate, he/she has
all right and authority, in his/her capacity as an
officer, general partner, trustee, executor, or other
representative of such corporation, partnership, trust,
or estate, as the case may be, to make such decision to
invest in the Shares and to execute and deliver this
Subscription Agreement on behalf of such corporation,
partnership, trust, or estate, as the case may be, and
this Subscription Agreement is a valid and binding
agreement of such corporation, partnership, trust, or
estate, enforceable in accordance with its terms;
(c) the undersigned has reached the age of majority in
higher state of residence;
(d) the undersigned hereby acknowledges that the undersigned
has received and carefully reviewed the Prospectus, as
amended and/or supplemented; and
<PAGE> 3
(d) if the undersigned is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), in
making this investment he/she is aware of and has taken
into consideration the prudence, diversification, and
other fiduciary requirements of ERISA and has concluded
that this investment is in compliance with such
requirements.
4. Indemnification. The undersigned hereby agrees to indemnify and
hold harmless the Company and UST Financial Services Corp., each officer,
director, controlling person, and agent of the Company and UST Financial
Services Corp., from and against any and all loss, claim, damage, liability, or
expense, and any action in respect thereof, joint or several, to which any such
person may become subject, due to or arising out of the falsity or inaccuracy of
any representation, warranty or any other information provided herein, together
with all reasonable costs and expenses (including attorneys' fees) incurred by
any such person in connection with any action, suit, proceeding, demand,
assessment, or judgment incident to any of the matters so indemnified against.
5. Survival. All representations and warranties contained in this
Subscription Agreement and the indemnification provisions contained in Section
4 hereof shall survive (i) the acceptance of the subscription, (ii) changes in
the transactions, documents, and instruments described in the Prospectus that
are not material, and (iii) the death or disability of the undersigned.
6. Governing Law. This Subscription Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Under penalties of perjury, the undersigned certifies that the information
provided on the reverse of this form is true, correct and complete.
<PAGE> 4
EXCELSIOR PRIVATE EQUITY FUND II, INC.
SUBSCRIPTION AGREEMENT
<TABLE>
<S> <C>
-----------------------
INVESTMENT AMOUNT: Purchase Price of $1.000 per Share: minimum subscription
$ Shares is $25,000 (25 Shares)
-----------------------
Make check payable to U.S. Trust of New York, Escrow Agent for EXCELSIOR PRIVATE EQUITY FUND II, INC., 114 West 47th Street, N.Y.
NY 10036. Checks should be delivered to the Selling Agent together with this Subscription Agreement.
- ------------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL ACCOUNTS: Complete sections 1, 4, 5 and sign below. CUSTODIAL ACCOUNTS: Complete sections 2, 3, 4, 5 and sign below.
- ------------------------------------------------------------------------------------------------------------------------------------
MANNER IN WHICH TITLE IS TO BE HELD (CHECK ONE)
- ------------------------------------------------------------------------------------------------------------------------------------
(1) INDIVIDUAL ACCOUNTS (2) CUSTODIAL ACCOUNTS
[ ] A. Individual Owner [ ] E. Tenants in common (all [ ] I. IRA [ ] L. Trust (date est.____)
[ ] B. Joint tenants with parties must sign) [ ] J. Keogh Plan [ ] M. Pension
right of [ ] F. Tenants by the entirety [ ] K. Uniform Gifts to Minors [ ] N. Profit Sharing
survivorship (both parties must sign) Act
[ ] C. Community property [ ] G. Corporate owner
(both parties [ ] H. Partnership owner State of ___________________
must sign)
[ ] D. Separate property
CUSTODIAN(S) OR TRUSTEE(S) MUST SIGN
- ------------------------------------------------------------------------------------------------------------------------------------
(3) TRUSTEE OR Name of Custodian (Trustee) Account #
CUSTODIAN
------------------------------------------------------------------------------------------------------------
Street or P.O. Box
------------------------------------------------------------------------------------------------------------
City State Zip Phone
( )
------------------------------------------------------------------------------------------------------------
Trustee or Custodian Tax ID Number
------------------------------------------------------------------------------------------------------------
(4) INVESTOR(S) Investor Name Co-Investor Name
------------------------------------------------------------------------------------------------------------
Street or P.O. Box
------------------------------------------------------------------------------------------------------------
City State Zip Phone
( )
------------------------------------------------------------------------------------------------------------
Legal State of Residency (if different from above) U.S. Citizen
[ ] Yes [ ] No
------------------------------------------------------------------------------------------------------------
Social Security or Tax ID Number for IRS Reporting
------------------------------------------------------------------------------------------------------------
(5) DISTRIBUTION Name of Custodian (Trustee) Account #
ADDRESS IF
DIFFERENT FROM ------------------------------------------------------------------------------------------------------------
ADDRESS ABOVE Street or P.O. Box
(Distributions for
Custodial Accounts ------------------------------------------------------------------------------------------------------------
Will be Sent to The City State Zip Phone
Custodian) ( )
------------------------------------------------------------------------------------------------------------
Trustee or Custodian Tax ID Number
------------------------------------------------------------------------------------------------------------
I certify, under penalties of perjury, that (1) the tax identification number shown on this application is correct and (2) I am NOT
currently under IRS notification that part of my dividend and interest income is to be withheld as a result of my failure to report
all dividend and interest income on my income tax return - i.e. backup withholding.
(Strike the word "NOT" above if you received IRS notification.)
SIGNATURE(S): Please read the reverse before signing; names must be signed exactly as registered above; each investor is required
to sign his/her/us own Subscription Agreement unless signed by a trustee or custodian.
Investor's Signature Date
---------------------------------------------------------------------------------------------------------------
Co-Investor's Signature Date
------------------------------------------------------------------------------------------------------------
Trustee or Custodian's Signature Date
---------------------------------------------------------------------------------------------------
THE SELLING AGENT MUST SIGN BELOW TO COMPLETE THE ORDER
I had reasonable grounds to believe, on the basis of information obtained from the subscriber concerning his/her age, investment
objectives, other investments, financial situations and needs, and any other information known by me, including said subscriber's
recognizable capacity to understand the important aspects and risks of the investment, that (i) the subscriber is or will be in a
financial position appropriate to enable him/her to realize to a significant extent the benefits described in the Prospectus;
(ii) the subscriber has a fair market net worth sufficient to sustain the risks inherent in and investment in the Company,
including loss of investment and lack of liquidity; and (iii) the Company is otherwise suitable for the subscriber. I further
certify that I have informed the subscriber of all pertinent facts relating to the liquidity and marketability of the Shares during
the term of the Company. I also warrant that I am exempt from licensing or duly licensed, as appropriate, and may lawfully sell the
Shares in the state designated as the subscriber's residence.
Name Address
---------------------------------------------------------------------------------------------------------------
City State Zip Phone
---------------------------------------------------------------------------------------------------------------
[Licensed Firm Name] (Firm's Headquarters Mailing Address)
---------------------------------------------------------------------------------------------------------------
[City] State Zip Phone
---------------------------------------------------------------------------------------------------------------
Signature
---------------------------------------------------------------------------------------------------------------
</TABLE>
