<PAGE> 1
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Chartwell Dividend and Income Fund, Inc.
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(Exact name of registrant as specified in its charter)
Maryland [Applied For]
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(State of incorporation or organization) (I.R.S. Employer I.D. No.)
400 Bellevue Parkway, Wilmington, Delaware 19809
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
<S> <C>
Common Stock (par value per New York Stock Exchange
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share $.01)
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</TABLE>
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-49969
Securities to be registered pursuant to Section 12(g) of the Act:
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(Title of class)
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(Title of class)
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
ITEM 202. DESCRIPTION OF REGISTRANT'S SECURITIES.
(a) COMMON STOCK. A description of the securities to be registered
comparable to that which is required here is contained in the
sections entitled "DIVIDENDS AND DISTRIBUTIONS," "AUTOMATIC DIVIDEND
REINVESTMENT PLAN" and "DESCRIPTION OF COMMON STOCK," which are
incorporated herein by reference to Pre-Effective Amendment No. 1 to
the Registrant's Registration Statement on Form N-2 (File Nos.
333-49969/811-08747) as filed with the Securities and Exchange
Commission on May 26, 1998 under the Securities Act of 1933 and the
Investment Company Act of 1940 ("Pre-Effective Amendment No. 1").
(b) DEBT SECURITIES. Not Applicable.
(c) WARRANTS AND RIGHTS. Not Applicable.
(d) OTHER SECURITIES. Not Applicable.
(e) MARKET INFORMATION FOR SECURITIES OTHER THAN
COMMON EQUITY. Not Applicable.
(f) AMERICAN DEPOSITORY RECEIPTS. Not Applicable.
ITEM 2. EXHIBITS.
1.1 Specimen Common Share Certificate.
2.1 The Registrant's Articles of Amendment and Restatement.
2.2 The Registrant's By-laws as amended and restated on June 1,
1998.
All other exhibits are incorporated herein by reference to
Pre-Effective Amendment No. 1.
<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.
Signature: CHARTWELL DIVIDEND AND INCOME FUND, INC.
By: /s/ Winthrop S. Jessup
------------------------------------
Winthrop S. Jessup
Chairman of the Board
Date: May 31, 1998
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
- ------ ------------
<S> <C>
1.1 Specimen Common Stock Certificate.
2.1 The Registrant's Articles of Amendment and Restatement.
2.2 The Registrant's By-laws as amended and restated on June 1,
1998.
</TABLE>
<PAGE> 1
TEMPORARY CERTIFICATE -- EXCHANGEABLE FOR DEFINITIVE
ENGRAVED CERTIFICATE WHEN READY FOR DELIVERY
NUMBER SHARES
[ T ] [ ]
[CHARTWELL LOGO]
CHARTWELL DIVIDEND AND INCOME FUND, INC.
COMMON STOCK COMMON STOCK
THIS CERTIFICATE IS
TRANSFERABLE IN CUSIP 16139P 10 4
PHILADELPHIA, PA AND
NEW YORK, NY SEE REVERSE FOR CERTAIN DEFINITIONS
INCORPORATED UNDER THE
LAWS OF THE STATE
OF MARYLAND
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THIS CERTIFIES that
is the owner of
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FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
PAR VALUE $.01 PER SHARE, OF
CHARTWELL DIVIDEND AND INCOME FUND, INC.
(the "Corporation") transferable on the books of the Corporation by the owner
hereof in person or by duly authorized attorney, upon surrender of this
Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
CERTIFICATE OF STOCK
Dated:
/s/ Michael P. Malloy /s/ Timothy J. Riddle
- ---------------------- ------------------------
Secretary Vice President
CHARTWELL DIVIDEND AND INCOME FUND, INC.
CORPORATE
SEAL
1998
MARYLAND
COUNTERSIGNED AND REGISTERED:
PNC BANK, NATIONAL ASSOCIATION
(Phila., PA)
TRANSFER AGENT AND REGISTRAR
By
AUTHORIZED SIGNATURE
<PAGE> 2
CHARTWELL DIVIDEND AND INCOME FUND, INC.
The Corporation is authorized to issue two or more classes of stock. The
Corporation will furnish to any stockholder, on request and without charge, a
full statement of the designations and any preferences, conversion and other
rights, voting powers, restrictions, and limitations as to dividends,
qualifications and terms and conditions of redemption of the stock of each
class which the Corporation is authorized to issue, and, if the Corporation is
authorized to issue any preferred or special class or series, of the differences
in the relative rights and preferences between the shares of each series to the
extent they have been set and the authority of the Board of Directors to set
the relative rights and preferences of subsequent series.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
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(Cust) (Minor)
under Uniform Gifts to Minors Act
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(State)
UNIF TRAN MIN ACT -- Custodian
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(Cust) (Minor)
under Uniform Transfers to Minors Act
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(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby
-----------------------------------------
sell, assign and transfer unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER
IDENTIFYING NUMBER
OF ASSIGNEE
- ------------------------
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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Shares
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of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
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to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated
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X
-------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: -------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
<PAGE> 1
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
CHARTWELL DIVIDEND AND INCOME FUND, INC.
Chartwell Dividend and Income Fund, Inc., a Maryland corporation,
having its principal office in the State of Maryland (hereinafter called the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland:
FIRST: The Articles of Incorporation of Chartwell Dividend and
Income Fund, Inc. are amended and restated as follows:
ARTICLE I.
NAME
The name of the corporation is CHARTWELL DIVIDEND AND INCOME
FUND, INC. (the "Corporation").
ARTICLE II.
PURPOSES AND POWERS
The Corporation is expressly empowered to invest, reinvest, own,
hold or trade its assets in securities and other investments or to hold part or
all of its assets in cash. The Corporation shall be authorized to exercise and
enjoy all of the powers, rights and privileges granted to, or conferred upon,
corporations by the General Laws of the State of Maryland now or hereafter in
force, and the enumeration of the foregoing shall not be deemed to exclude any
powers, rights or privileges so granted or conferred.
ARTICLE III.
PRINCIPAL OFFICE AND RESIDENT AGENT
The post-office address of the principal office of the Corporation
in the State of Maryland is c/o The Corporation Trust Incorporated, 300 East
Lombard Street, Baltimore, Maryland 21202. The name of the resident agent of the
Corporation in this State is The Corporation Trust Incorporated, a corporation
of this State, and the post-office address of the resident agent is The
Corporation Trust Incorporated, 300 East Lombard Street, Baltimore, Maryland
21202.
<PAGE> 2
ARTICLE IV.
CAPITAL STOCK
(1) The total number of shares of capital stock which the
Corporation shall have authority to issue is 100,000,000 shares, all initially
classified as one class called Common Stock, of the par value of $0.01 per
share, and of the aggregate par value of $1,000,000.
(2) The Board of Directors is expressly authorized to classify or
reclassify any unissued stock, whether now or hereafter authorized, by setting
or changing the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications, or terms or
conditions of redemption of such stock.
(3) Unless otherwise expressly provided in the Charter of the
Corporation, the holders of each class or series of capital stock shall be
entitled to dividends and distributions in such amounts and at such times as may
be determined by the Board of Directors, and the dividends and distributions
paid with respect to the various classes or series of capital stock may vary
among such classes and series.
(4) Unless otherwise expressly provided in the Charter of the
Corporation, on each matter submitted to a vote of stockholders, each holder of
a share of capital stock of the Corporation shall be entitled to one vote for
each share standing in such holder's name on the books of the Corporation,
irrespective of the class or series thereof, and all shares of all classes and
series shall vote together as a single class; provided, however, that as to any
matter with respect to which a separate vote of any class or series is required
by the Investment Company Act of 1940, as amended (the "Investment Company
Act"), or any rules, regulations or orders issued thereunder, or by the Maryland
General Corporation Law, such requirement as to a separate vote by that class or
series shall apply in lieu of a general vote of all classes and series as
described above.
(5) Notwithstanding any provision of the Maryland General
Corporation Law requiring any action to be taken or authorized by the
affirmative vote of the holders of a greater proportion of the votes of all
classes or of any class of stock of the Corporation, such action shall be
effective and valid if taken or authorized by the affirmative vote of the
holders of shares with a majority of all votes entitled to be cast on the
matter, except as otherwise required by applicable law or otherwise provided in
the Charter of the Corporation.
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<PAGE> 3
(6) Unless otherwise expressly provided in the Charter of the
Corporation, in the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of each class or
series of capital stock of the Corporation shall be entitled, after payment or
provision for payment of the debts and other liabilities of the Corporation to
share ratably in the remaining net assets of the Corporation.
(7) The Corporation may issue shares of stock in fractional
denominations to the same extent as its whole shares, and shares in fractional
denominations shall be shares of stock having proportionately, to the respective
fractions represented thereby, all the rights of whole shares, including without
limitation, the right to vote, the right to receive dividends and distributions,
and the right to participate upon liquidation of the Corporation, but excluding
any right to receive a stock certificate representing fractional shares.
ARTICLE V.
PROVISIONS FOR DEFINING, LIMITING AND REGULATING
CERTAIN POWERS OF THE CORPORATION AND OF THE
DIRECTORS AND STOCKHOLDERS
(1) The number of initial directors of the Corporation shall be one
provided that: (a) the number of directors of the Corporation may be increased
or decreased pursuant to the By-Laws of the Corporation but shall never be less
than three, except as provided in this Article V Section 1; (b) if there is no
capital stock of the Corporation outstanding the number of directors may be less
than three but not less than one; and (c) if there is capital stock of the
Corporation outstanding and so long as there are less than three stockholders of
the Corporation, the number of directors may be less than three but not less
than the number of stockholders. The name of the director who shall act until
the first annual meeting of stockholders or until his successor is duly elected
and qualified is Winthrop S. Jessup.
(2) Beginning with the first annual meeting of stockholders held
after the initial public offering of the shares of the Corporation ("the initial
annual meeting"), the Board of Directors shall be divided into three classes;
class I, class II, and class III. The terms of office of the classes of
directors elected at the initial annual meeting shall expire at the times of the
annual meetings of the stockholders as follows -- class I in 2000, class II in
2001, and class III in 2002 -- or thereafter in each case when their respective
successors are elected and qualified. At each subsequent annual election, the
directors chosen to succeed those whose terms are expiring shall be
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<PAGE> 4
identified as being of the same class as the directors whom they succeed, and
shall be elected for a term expiring at the time of the third succeeding annual
meeting of stockholders, or thereafter in each case when their respective
successors are elected and qualified. The number of directorships shall be
apportioned among the classes so as to maintain the classes as nearly equal in
number as possible.
(3) The Board of Directors of the Corporation is hereby empowered
without the assent or vote of the stockholders, to authorize the issuance and
sale from time to time of shares of the stock of the Corporation, whether now or
hereafter authorized, and securities convertible into shares of stock of the
Corporation, whether now or hereafter authorized for such consideration as the
Board of Directors may deem advisable.
(4) No holder of any stock or other security of the Corporation
shall, as such holder, have any preemptive right to purchase or subscribe for
any stock or other security of the Corporation other than such right, if any, as
the Board of Directors, in its discretion, may determine.
(5) To the fullest extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation Law, no
director or officer of the Corporation shall have any liability to the
Corporation or its stockholders for money damages. This limitation on liability
applies to events occurring at the time a person serves as a director or officer
of the Corporation whether or not such person is a director or officer at the
time of any proceeding in which liability is asserted. The Corporation shall
indemnify and advance expenses to its currently acting and its former directors
to the fullest extent that indemnification of directors is permitted by the
Maryland General Corporation Law. The Corporation shall indemnify and advance
expenses to its currently acting and former officers to the same extent as its
directors and to such further extent as is consistent with law. The Board of
Directors 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 Maryland General Corporation Law. No provision of this
Article shall be effective to protect or purport to protect any director or
officer of the Corporation against any liability to the Corporation 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. References to the Maryland General
Corporation Law in this Article are to that law as from time to time amended. No
amendment to the Charter of the Corporation
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<PAGE> 5
shall affect any right of any person under this Article based on any event,
omission or proceeding prior to such amendment.
(6) The Board of Directors of the Corporation is vested with the
sole power, to the exclusion of the stockholders, to make, alter or repeal the
By-Laws of the Corporation, except where such power is reserved by the By-Laws
to the stockholders, and except as otherwise required by the Investment Company
Act.
(7) A director may be removed only for cause, and only by action of
the shareholders taken by the holders of shares with at least seventy-five (75)
percent of the votes then entitled to be cast in an election of directors, or,
in the case of directors elected by holders of senior securities, only by action
of the holders of such senior securities with at least seventy-five (75) percent
of the votes then entitled to be cast by the holders of such senior securities.
As used in this Section (7), "senior securities" has the meaning assigned to
such term by Section 18 of the Investment Company Act.
(8) The enumeration and definition of the particular powers of the
Board of Directors included in the Charter of the Corporation shall in no way be
limited or restricted by reference to or inference from the terms of any other
clause of this or any other Article of the Charter of the Corporation, or
construed as or deemed by inference or otherwise in any manner to exclude or
limit any powers conferred upon the Board of Directors under the General Laws of
the State of Maryland now or hereafter in force.
ARTICLE VI.
DETERMINATION BINDING
Any determination made in good faith and consistent with applicable
law, and so far as accounting matters are involved, in accordance with accepted
accounting practice by or pursuant to the direction of the Board of Directors,
as to the amount of assets, obligations or liabilities of the Corporation, as to
the amount of net income of the Corporation from dividends and interest for any
period or amounts at any time legally available for the payment of dividends, as
to 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 as to the use, alteration or cancellation
of any reserves or charges shall have been created, shall have been paid or
discharged or shall be then or thereafter required to be paid or discharged), as
to the price of any security owned by the Corporation or as to any other matters
relating to the issuance, sale, redemption or
-5-
<PAGE> 6
other acquisition or disposition of securities or shares of capital stock of the
Corporation, and any reasonable determination made in good faith by the Board of
Directors as to whether any transaction constitutes a purchase of securities on
"margin," a sale of securities "short," or an underwriting or the sale of, or a
participation in any underwriting or selling group in connection with the public
distribution of, any securities, shall be final and conclusive, and shall be
binding upon the Corporation and all holders of its capital stock, past, present
and future, and shares of the capital stock of the Corporation 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 in the Charter of the
Corporation shall be effective to (a) require a waiver of compliance with any
provision of the Securities Act of 1933, as amended, or 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 Corporation against any liability to the Corporation 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 VII.
CONVERSION TO OPEN-END COMPANY
Notwithstanding any other provisions of the Charter of the
Corporation or its By-Laws, a favorable vote of (a) at least seventy-five (75)
percent of the total number of directors fixed in accordance with the By-Laws of
the Corporation, including a majority of the directors who are not interested
persons (as defined in the Investment Company Act) of the Corporation, (b) at
least seventy-five (75) percent of all shares of capital stock of the
Corporation entitled to be voted on the matter (which includes Common Stock and
preferred stock together) and (c) at least seventy-five (75) percent of all
votes of preferred stock, if any, of the Corporation, voting as a separate
class, shall be required to approve, adopt or authorize an amendment to the
Charter of the Corporation that makes the Common Stock a "redeemable security"
(as that term is defined in section 2(a)(32) of the Investment Company Act).
ARTICLE VIII.
MERGER, SALE OF ASSETS, LIQUIDATION
Notwithstanding any other provisions of the Charter of the
Corporation, its By-Laws, the Maryland General Corporation
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<PAGE> 7
Law or any other provisions of Maryland law, a favorable vote of the holders of
at least seventy-five (75) percent of the outstanding shares of capital stock of
the Corporation entitled to be voted on the matter shall be required to approve,
adopt or authorize (i) a merger or consolidation or statutory share exchange of
the Corporation with any other corporation, other than a corporation ninety
percent or more of which is owned by the Corporation, (ii) a sale of all or
substantially all of the assets of the Corporation (other than in the regular
course of its investment activities), or (iii) a liquidation or dissolution of
the Corporation, unless such action has previously been approved, adopted or
authorized by the affirmative vote of at least seventy-five (75) percent of the
total number of directors fixed in accordance with the By-Laws of the
Corporation, in which case the affirmative vote of the holders of a majority of
the outstanding shares of capital stock of the Corporation entitled to vote
thereon shall be required.
ARTICLE IX.
MORTGAGES, PLEDGES AND OTHER SECURITY INTERESTS
Notwithstanding any other provision of the Charter of the
Corporation, the approval of the stockholders and articles of transfer shall not
be required for any mortgage, pledge, or creation of any other security interest
in any or all of the assets of the Corporation, whether or not in the ordinary
course of its business, or for the exercise of the rights and remedies provided
with respect thereto.
ARTICLE X.
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in the Charter of the Corporation, in any manner now or
hereafter prescribed by statute, including any amendment which alters the
contract rights, as expressly set forth in the Charter, of any outstanding stock
and substantially adversely affects the stockholders' rights, and all rights
conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding any other provisions of the Charter of the Corporation or its
By-Laws (and notwithstanding the fact that a lesser percentage may be specified
by law), the amendment or repeal of Section (5) of Article IV, Section (2),
Section (5), Section (6) and Section (7) of Article V, Article VII, Article VIII
or this Article X, of these Articles of Incorporation shall require the
affirmative vote of the holders of at least seventy-five (75) percent of the
outstanding shares of capital stock of the Corporation entitled to be voted on
the matter, and the amendment or repeal of Article
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<PAGE> 8
VII shall also require the affirmative vote of at least seventy-five (75)
percent of all votes of preferred stock, if any, of the Corporation voting as a
separate class and the affirmative vote of seventy-five (75) percent of the
total number of directors fixed in accordance with the By-Laws of the
Corporation, including a majority of the directors who are not interested
persons (as defined in the Investment Company Act) of the Corporation.
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<PAGE> 9
ARTICLE XI.
DEFINITION
As used herein, the "Charter of the Corporation" means these
Articles of Incorporation as amended and supplemented from time to time.
SECOND:
(1) These Articles of Amendment and Restatement have been duly
approved by the sole director of the Corporation. No stock entitled to be voted
thereon was outstanding or subscribed for at the time of approval.
(2) The Corporation desires to amend and restate its Charter as
currently in effect. The provisions set forth in these Articles of Amendment and
Restatement are all of the provisions of the Charter currently in effect as
herein amended. The current name and address of the Corporation's resident
agent, address of the Corporation, and number and name of directors currently in
office are as set forth herein.
IN WITNESS WHEREOF, Chartwell Dividend and Income Fund, Inc. has
caused these Articles of Amendment and Restatement to be signed in its name and
on its behalf by its Vice President and witnessed by its Secretary, as of this
1st day of June, 1998.
The undersigned Vice President acknowledges these Articles of
Amendment and Restatement to be the corporate act of the Corporation and states
that to the best of his knowledge, information and belief, the matters and facts
set forth in these Articles with respect to the authorization and approval
thereof are true in all material respects and that this statement is made under
penalties of perjury.
CHARTWELL DIVIDEND AND INCOME FUND, INC.
By: /s/ Timothy J. Riddle
-------------------------------------
Name: Timothy J. Riddle
Title: Vice President
Witness:
/s/ Michael P. Malloy
- -----------------------
Name: Michael P. Malloy
Title: Secretary
-9-
<PAGE> 1
BY-LAWS
OF
CHARTWELL DIVIDEND AND INCOME FUND, INC.
AMENDED AND RESTATED JUNE 1, 1998
ARTICLE I
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETINGS. The annual meeting of the stockholders
of the Corporation shall be held on such date within the month of May and at
such place, within or without the State of Maryland, as may be determined by the
Board of Directors and as shall be designated in the notice of said meeting, for
the purpose of electing directors and for the transaction of such other business
as may properly be brought before the meeting.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute or by the
Charter of the Corporation, may be held at any place, within or without the
State of Maryland, and may be called at any time by the Board of Directors or by
the President, and shall be called at the request in writing of stockholders
entitled to cast at least a majority of all the votes entitled to be cast at
such meeting. Such request shall state the purpose or purposes of the proposed
meeting and the matters proposed to be acted on at it. The Secretary shall
inform such stockholders of the reasonably estimated costs of preparing and
mailing the notice of the meeting and on payment of these costs to the
Corporation shall notify each stockholder entitled to notice of the meeting.
SECTION 1.3 NOTICE OF MEETINGS. Written or printed notice of the
time and place of every meeting, and of the purpose of any special meeting, of
the stockholders shall be given by the Secretary of the Corporation to each
stockholder of record entitled to vote at the meeting and each other stockholder
entitled to notice of the meeting, by placing such notice in the mail at least
ten (10) days, but not more than ninety (90) days, and in any event within the
period prescribed by law, prior to the date named for the meeting addressed to
each stockholder at his address appearing on the books of the Corporation or
supplied by him to the Corporation for the purposes of notice. The notice of
every meeting of stockholders may be accompanied by a form of proxy approved by
the Board of Directors in favor of such actions or persons as the Board of
Directors may select.
SECTION 1.4 RECORD DATE. The Board of Directors may
<PAGE> 2
fix a date not more than ninety (90) days preceding the date of any meeting of
stockholders, or the date fixed for the payment of any dividend, or the date of
the allotment of rights, as a record date for the determination of stockholders
entitled to notice of, or to vote at, any such meeting (or any adjournment
thereof) or entitled to receive payment of any dividend, or to receive such
allotment of rights. In such case, only stockholders of record at the time so
fixed shall be entitled to vote, to receive notice, or receive dividends or
rights, notwithstanding any subsequent transfer on the books of the Corporation.
The Board of Directors shall not close the books of the Corporation against
transfers of shares during the whole or any part of such period. In the case of
a meeting of stockholders, the record date shall be fixed not less than ten (10)
days prior to the date of the meeting.
SECTION 1.5 QUORUM AND SHAREHOLDER ACTION. Except as otherwise
provided by statute or by the Charter, the presence in person or by proxy of
stockholders of the Corporation entitled to cast at least a majority of all the
votes entitled to be cast at the meeting shall constitute a quorum and a
majority of all the votes cast at a meeting at which a quorum is present shall
be sufficient to approve any matter which properly comes before the meeting
(except with respect to the election of directors, which will be by a plurality
of votes cast). In the absence of a quorum, the stockholders present in person
or by proxy, by majority vote and without notice other than by announcement at
the meeting, may adjourn the meeting from time to time as provided in Section
1.7 of this Article I until a quorum shall attend.
SECTION 1.6 ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, if one has been selected and is present or, if not, the
President, or in the absence of the Chairman of the Board and the President, a
Vice-President, or in the absence of the Chairman of the Board, the President
and all the Vice-Presidents, a chairman chosen by the Board of Directors of the
Corporation or, in the absence of the Chairman, the President, all the
Vice-Presidents and a chairman chosen by the Board of Directors, a chairman
chosen by the stockholders, shall act as chairman; and the Secretary, or in his
absence, an Assistant Secretary, or in the absence of the Secretary and all the
Assistant Secretaries, a person appointed by the chairman, shall act as
secretary of the meeting.
SECTION 1.7 ADJOURNMENT. Any meeting of the stockholders may be
adjourned from time to time, without notice other than by announcement at the
meeting at which such adjournment is taken, and at any such adjourned meeting at
which a quorum shall be present any action may be taken that could have been
taken at the meeting originally called; provided, that the meeting may not be
adjourned to a date more than the number of
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days after the original record date for the meeting permitted by law, and if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
SECTION 1.8 BENEFICIAL OWNERS. The Board of Directors may adopt by
resolution a procedure by which a stockholder of the Corporation may certify in
writing to the Corporation that any shares of stock registered in the name of
the stockholder are held for the account of a specified person other than the
stockholder in such a manner and for such purposes as may be permitted by
Maryland law.
SECTION 1.9 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of the stockholders may be taken without a meeting if a
unanimous consent which sets forth the action is signed by the stockholders and
is filed with the minutes of proceedings of the stockholders.
SECTION 1.10 NOTICE OF STOCKHOLDER BUSINESS. 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 direction of the Board of Directors, or (iii) otherwise properly brought
before the meeting by a stockholder.
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 office of
the Corporation not later than sixty (60) days prior to the date of the meeting;
provided, however, that if less than seventy (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.
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,
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(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.
Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at any annual or special meeting except in
accordance with the procedures set forth in this Section 1.10. 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 in
accordance with the provisions of this Section 1.10, 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 1.11 ADVANCE NOTICE REQUIREMENTS FOR NOMINATION OF
DIRECTORS. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation,
except as may be otherwise provided in the Charter of the Corporation with
respect to the rights of any holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of Directors may be made at any
annual meeting of stockholders (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 1.11 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 1.11.
In addition to any other applicable requirements, for a nomination
to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive office of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the date of the annual meeting; provided, however, that in the event that
less than seventy (70) days' notice or prior public disclosure of the date of
the annual meeting is given or made to stockholders, notice by the stockholder
in order to be timely must be so received not later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to
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the Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person, and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. If the chairman of the annual meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 ELECTION AND POWERS. The number of directors shall be
fixed from time to time by resolution adopted by a majority of the entire Board
of Directors; provided, however, that the number of directors shall in no event
be less than three (3) unless there are fewer than three stockholders nor more
than fifteen (15). The business, affairs and property of the Corporation shall
be managed by or under the direction of the Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by
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statute, the Charter of the Corporation or these By-Laws required to be
exercised or done by the stockholders. Beginning with the first annual meeting
of stockholders held after the initial public offering of the shares of the
Corporation ("the initial annual meeting"), the Board of Directors shall be
divided into three classes: class I, class II and class III. The terms of office
of the classes of directors elected at the initial annual meeting shall expire
at the times of the annual meetings of the stockholders as follows -- class I in
2000, class II in 2001 and class III in 2002 -- or thereafter in each case when
their respective successors are elected and qualified. At each subsequent annual
meeting, the directors chosen to succeed those whose terms are expiring shall be
identified as being of the same class as the directors whom they succeed, and
shall be elected for a term expiring at the time of the third succeeding annual
meeting of stockholders, or thereafter in each case when their respective
successors are elected and qualified. The number of directorships shall be
apportioned among the classes so as to maintain the classes as nearly equal in
number as possible.
SECTION 2.2 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice on such dates as the Board may from time to
time determine.
SECTION 2.3 SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President or by a majority of the entire Board of Directors either in writing or
by vote at a meeting.
SECTION 2.4 NOTICE OF SPECIAL MEETINGS. Notice of the place, day and
hour of every special meeting shall be given personally to each director at
least one (1) day before the meeting or otherwise at least two (2) days before
the meeting. Notice may be given in any one of the following ways: personally by
delivery to such director or by telephone communication with such director or by
telephone facsimile transmission; otherwise by telegram, cablegram, radiogram,
first class mail or by delivery service providing confirmation of delivery,
addressed to such director at the address appearing on the books of the
Corporation. The time when such notice shall be consigned to a communication
company for delivery shall be deemed to be the time of the giving of such
notice; if mailed, such notice shall be deemed given 48 hours after the time it
is deposited in the mail, postage prepaid. It shall not be requisite to the
validity of any meeting of the Board of Directors that notice thereof shall have
been given to any director who is present thereat, or, if absent, waives notice
thereof in writing filed with the records of the meeting either before or after
the holding thereof.
SECTION 2.5 PLACE OF MEETINGS. The Board of Directors may hold its
regular and special meetings at such place or places within or without the State
of Maryland as the Board may from
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time to time determine.
SECTION 2.6 QUORUM AND BOARD ACTION. Except as otherwise provided by
statute or by the Charter: (a) one-third (1/3) of the entire Board of Directors,
but in no case less than two (2) directors, unless there is only one (1)
director, shall be necessary to constitute a quorum for the transaction of
business at each meeting of the Board; (b) 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; and (c) if at any meeting there be less than a quorum present, a
majority of those directors present may adjourn the meeting from time to time,
but not for a period greater than thirty (30) days at any one time, without
notice other than by announcement at the meeting until a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as originally
scheduled.
SECTION 2.7 ACTION WITHOUT MEETING. Except as otherwise provided by
statute, any action required or permitted to be taken at a meeting of the Board
of Directors or a committee of the Board may be taken without a meeting if an
unanimous consent which sets forth the action is signed by each member of the
Board or committee and is filed with the minutes of proceedings of the Board or
committee.
SECTION 2.8 ORGANIZATION. At every meeting of the Board of
Directors, the Chairman of the Board, if one has been selected and is present,
and, if not, or in the absence of the Chairman of the Board, a chairman chosen
by a majority of the directors present, shall preside; and the Secretary, or in
his absence, an Assistant Secretary, or in the absence of the Secretary and all
the Assistant Secretaries, a person appointed by the chairman, shall act as
secretary.
SECTION 2.9 VACANCIES. Any vacancy on the Board of Directors
occurring by reason of any increase in the number of directors may be filled by
a majority of the entire Board of Directors. Any vacancy on the Board of
Directors occurring for any other cause may be filled by a majority of the
remaining members of the Board of Directors, whether or not these members
constitute a quorum under Section 2.6 of this Article II. Any director so chosen
to fill a vacancy shall hold office until the next annual meeting of
stockholders, or special meeting called for such purpose, and until his
successor shall have been duly elected and qualified.
SECTION 2.10 RESIGNATIONS. Any director may resign at any time by
giving written notice to the Board of Directors, the President or the Secretary.
Any such resignation shall take effect at the time of the receipt of such notice
or at any later
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time specified therein; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 2.11 COMMITTEES. The Board of Directors may appoint from
among its members an executive and other committees of the Board composed of one
(1) or more directors. To the extent permitted by law, the Board of Directors
may delegate to any such committee or committees any of the powers of the Board
of Directors in the management of the business, affairs and property of the
Corporation. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board of Directors.
Each Committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required. The members of a committee present at any
meeting, whether or not they constitute a quorum, may appoint a director to act
in the place of an absent member.
SECTION 2.12 TELEPHONE CONFERENCE. Except as otherwise provided by
statute, members of the Board of Directors or any committee thereof may
participate in a meeting of the Board or such 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 the meeting.
SECTION 2.13 COMPENSATION OF DIRECTORS. Any director, whether or not
he is a salaried officer, employee, or agent of the Corporation, may be
compensated for his services as director or as a member of a committee, or as
Chairman of the Board or chairman of a committee, and in addition may be
reimbursed for transportation and other expenses, all in such manner and amounts
as the directors may from time to time determine.
ARTICLE III
OFFICERS
SECTION 3.1 NUMBER. The officers of the Corporation shall be a
President, a Secretary, and a Treasurer, and may include a Chairman of the
Board, one or more Vice-Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as the Board of Directors may
from time to time determine. Any officer may hold more than one office in the
Corporation, except that an officer may not serve concurrently as both the
President and a Vice-President.
SECTION 3.2 ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected by the Board of Directors at the first meeting of
the Board of Directors following the annual election of directors and, subject
to earlier termination of
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office, each officer shall hold office for one year and until his successor
shall have been elected and qualified.
SECTION 3.3 RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President, or the
Secretary of the Corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 3.4 REMOVAL. If the Board of Directors in its judgment finds
that the best interests of the Corporation will be served, the Board may remove
any officer of the Corporation at any time.
SECTION 3.5 CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
is elected, shall have the responsibility for the implementation of the policies
determined by the Board of Directors and for the administration of the business
affairs of the Corporation. He shall preside over the meetings of the Board and
of the stockholders at which he is present. The Chairman of the Board shall also
be the chief executive officer of the Corporation and shall have general
supervision over the business and operations of the Corporation, subject,
however, to the control of the Board of Directors. He, or such persons as he
shall designate, shall sign, execute, acknowledge, verify, deliver and accept,
in the name of the Corporation, deeds, mortgages, bonds, contracts and other
instruments authorized by the Board of Directors, except in the case where the
signing, execution, acknowledgement, verification, delivery or acceptance
thereof shall be delegated by the Board to some other officer or agent of the
Corporation; and, in general, he shall have general executive powers as well as
other powers and duties as from time to time may be conferred upon or assigned
to him by the Board.
SECTION 3.6 PRESIDENT. Unless a Chairman of the Board has been
elected, the President shall be the chief executive officer of the Corporation
and shall preside over the meetings of the Board and of the stockholders at
which he is present. The President shall also have such powers and duties as
from time to time may be conferred upon or assigned to him by the Board of
Directors or the Chairman of the Board.
SECTION 3.7 THE VICE-PRESIDENTS. In the absence or disability of the
President, or when so directed by the President, any Vice-President designated
by the Board of Directors may perform any or all of 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; provided, however, that no Vice-President
shall act as a member of or as chairman of any committee of which the President
is a member or chairman by
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designation of ex-officio, except when designated by the Board. Each
Vice-President shall perform such other duties as from time to time may be
conferred upon or assigned to him by the Board or the President.
SECTION 3.8 THE SECRETARY. The Secretary shall record all the votes
of the stockholders and of the directors and the minutes of the meetings of the
stockholders and of the Board of Directors in a book or books to be kept for
that purpose; he shall see that notices of meetings of the stockholders and the
Board of Directors are given and that all records and reports are properly kept
and filed by the Corporation as required by law; he shall be the custodian of
the seal of the Corporation and shall see that it is affixed to all documents to
be executed on behalf of the Corporation under its seal, provided that in lieu
of affixing the corporate seal to any document, it shall be sufficient to meet
the requirements of any law, rule or regulation relating to a corporate seal to
affix the word ("SEAL") adjacent to the signature of the authorized officer of
the Corporation; and, in general, he shall perform all duties incident to the
office of Secretary, and such other duties as from time to time may be conferred
upon or assigned to him by the Board or the President.
SECTION 3.9 ASSISTANT SECRETARIES. In the absence or disability of
the Secretary, or when so directed by the Secretary, any Assistant Secretary may
perform any or all of the duties of the Secretary, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the Secretary.
Each Assistant Secretary shall perform such other duties as from time to time
may be conferred upon or assigned to him by the Board of Directors, the
President or the Secretary.
SECTION 3.10 THE TREASURER. The Treasurer, unless another officer
has been so designated, shall be the chief financial officer of the Corporation.
Subject to the provisions of any contract which may be entered into with any
custodian pursuant to authority granted by the Board of Directors, the Treasurer
shall have charge of all receipts and disbursements of the Corporation and shall
have or provide for the custody of its funds and securities; he shall have full
authority to receive and give receipts for all money due and payable to the
Corporation, and to endorse checks and drafts, in its name and on its behalf,
and to give full discharge for the same; he shall deposit all funds of the
Corporation, except such as may be required for current use, in such banks or
other places of deposit as the Board of Directors may from time to time
designate; and, in general, he shall perform all duties incident to the office
of Treasurer and such other duties as from time to time may be conferred upon or
assigned to him by the Board or the President.
SECTION 3.11 ASSISTANT TREASURERS. In the absence or
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disability of the Treasurer, or when so directed by the Treasurer, any Assistant
Treasurer may perform any or all of the duties of the Treasurer and, when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Treasurer. Each Assistant Treasurer shall perform all such other
duties as from time to time may be conferred upon or assigned to him by the
Board of Directors, the President or the Treasurer.
SECTION 3.12 COMPENSATION OF OFFICERS. The compensation of all
officers shall be fixed from time to time by the Board of Directors, or any
committee or officer authorized by the Board so to do. No officer shall be
precluded from receiving such compensation by reason of the fact that he is also
a director of the Corporation.
ARTICLE IV
STOCK
SECTION 4.1 CERTIFICATES. The Board of Directors may authorize the
issuance of stock either in certificated or in uncertificated form. If shares
are issued in certificated form, each stockholder of an uncertificated security
shall be entitled upon written request to a stock certificate or certificates,
representing and certifying the number and kind of full shares held by him,
signed by the President, a Vice-President or the Chairman of the Board and
countersigned by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer, which signatures may be either manual or facsimile
signatures, and sealed with the seal of the Corporation, which seal may be
either facsimile or any other form of seal. Stock certificates shall be in such
form not inconsistent with law or with the Charter, as shall be approved by the
Board of Directors.
SECTION 4.2 TRANSFER OF SHARES. Transfers of shares shall be made on
the books of the Corporation at the direction of the person named on the
Corporation's books or named in the certificate or certificates for such shares
(if issued), or by his attorney lawfully constituted in writing, upon surrender
of such certificate or certificates (if issued) properly endorsed, to the
Corporation's Transfer Agent, with such evidence of the authenticity of such
transfer, authorization and such other matters as the Corporation or its agents
may reasonably require, and subject to such other reasonable terms and
conditions as may be required by the Corporation or its agents; or, if the Board
of Directors shall by resolution so provide, transfer of shares may be made in
any other manner provided by law.
SECTION 4.3 TRANSFER AGENTS AND REGISTRARS. The Corporation may have
one or more Transfer Agents and one or more Registrars of its stock, whose
respective duties the Board of Directors may, from time to time, define. No
certificate of
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stock shall be valid until countersigned by a Transfer Agent, if the Corporation
shall have a Transfer Agent, or until registered by a Registrar, if the
Corporation shall have a Registrar. The duties of Transfer Agent and Registrar
may be combined.
SECTION 4.4 STOCK LEDGERS. The Corporation shall not be required to
keep original or duplicate stock ledgers at its principal office in the City of
Baltimore, Maryland, but stock ledgers shall be kept at the respective offices
of the Transfer Agent of the Corporation's capital stock.
SECTION 4.5 LOCATION OF CORPORATE BOOKS. So long as permitted by
Maryland law, the books of the Corporation may be kept outside the State of
Maryland at such place or places as may be designated from time to time by the
Board of Directors.
ARTICLE V
SEAL
SECTION 5.1 SEAL. The seal of the Corporation shall be in such form
as the Board of Directors shall prescribe.
ARTICLE VI
SUNDRY PROVISIONS
SECTION 6.1 AMENDMENTS.
(a) BY STOCKHOLDERS. By-Laws may be adopted, altered, amended
or repealed in the manner provided in Section 1.5 of Article I hereof at any
annual or special meeting of the stockholders.
(b) BY DIRECTORS. By-Laws may be adopted, altered, amended or
repealed in the manner provided in Sections 2.6 or 2.7 of Article II hereof by
the Board of Directors at any regular or special meeting of the Board.
SECTION 6.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a)
INDEMNIFICATION. Subject to Section 6.2(b) of this Article, 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 Corporation, or is or was serving while a director or
officer 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
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expenses (including attorney's fees) actually incurred by such person in
connection with such action, suit or proceeding to the maximum extent
permissible under applicable state corporation law, the Securities Act of 1933
and the Investment Company Act of 1940, as such statutes are now or hereafter in
force, provided, that such indemnification 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").
(b) DETERMINATION. Unless a court orders otherwise, any
indemnification made pursuant to Section 6.2(a) of this Article shall be made by
the Corporation only as authorized in the specific case (i) after a final
decision on the merits is made by a court or other body before whom the
proceeding was brought that the person to be indemnified was not liable by
disabling conduct, or (ii) upon a determination, based on a review of the facts,
that the person to be indemnified was not liable by reason of disabling conduct,
which determination shall be made by (A) the vote of a majority of a quorum of
directors who are neither "interested persons" as defined under the Investment
Company Act of 1940 nor parties to the proceeding ("disinterested non-party
directors"), or (B) independent legal counsel in a written opinion.
(c) ADVANCES. Any current or former director or officer of the
Corporation claiming indemnification within the scope of this Section 6.2 shall
be entitled to advances from the Corporation for payment of the reasonable
expenses incurred by him in connection with the proceedings to which he is a
party in the manner and to the maximum extent permissible under applicable state
corporation law, the Securities Act of 1933 and the Investment Company Act of
1940, as such statutes are now or hereafter in force, provided, that (i) he
undertakes to repay the advance unless it is ultimately determined that he is
entitled to indemnification, and (ii) (A) he provides a security for his
undertaking, (B) the Corporation is insured against losses arising from a
failure to repay if required pursuant to clause (i), or (C) a majority of a
quorum of disinterested, non-party directors or independent legal counsel in a
written opinion, determine, based on a review of readily available facts, that
there is reason to believe that the person to be indemnified ultimately will be
found entitled to indemnification.
(d) OTHER RIGHTS. The Board of Directors may make further
provision consistent with law for indemnification and advance of expenses to
directors, officers, employees and agents by resolution, agreement or otherwise.
The indemnification provided by this Section 6.2 shall not be deemed exclusive
of any other right, with respect to indemnification or
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otherwise, to which those seeking indemnification may be entitled under any
insurance or other agreement or resolution of stockholders or disinterested
directors or otherwise. The rights provided to any person by this Section 6.2
shall be enforceable against the Corporation by such person who shall be
presumed to have relied upon it in serving or continuing to serve as a director
or officer as provided above.
SECTION 6.3 DEFINITION. As used herein, the "Charter of the
Corporation" means the Articles of Incorporation of the Corporation as amended
and supplemented from time to time.
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