SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF
1934
(AMENDMENT NO. __)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Sections 240.14a-11(c) or 240.14a-12
PREMIER CAPITAL GROWTH FUND, INC.
(Name of Registrant as Specified In Its Charter)
PREMIER CAPITAL GROWTH FUND, INC.
-------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[_] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2)
or Item 22(a)(2) of Schedule 14A.
[_] $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing
fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[X] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
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PREMIER CAPITAL GROWTH FUND, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To the Stockholders of
PREMIER CAPITAL GROWTH FUND, INC.
A Special Meeting of Stockholders of Premier Capital Growth
Fund, Inc. (the "Fund") will be held at the offices of The Dreyfus
Corporation, 200 Park Avenue, 7th Floor West, New York, New York,
on Wednesday, November 29, 1995 at 10:00 a.m. for the following
purposes:
1. To approve an Amendment and Restatement of the Fund's
Charter to:
a. Authorize the issuance of additional classes of
shares of the Fund.
b. Revise the Corporate Purposes and Powers clause.
c. Establish that one-third of the Fund's outstanding
shares constitutes a quorum.
d. Revise the liability and indemnification provisions
to reflect current Maryland law.
e. Delete the Valuation of Fund Assets clause.
2. To transact such other business as may properly come
before the meeting, or any adjournment or adjournments thereof.
Stockholders of record at the close of business on October 6,
1995 will be entitled to receive notice of and to vote at the
meeting.
By Order of the
Board of Directors
John E. Pelletier
Secretary
New York, New York
October 9, 1995
WE NEED YOUR PROXY VOTE IMMEDIATELY
A STOCKHOLDER MAY THINK HIS VOTE IS NOT IMPORTANT, BUT IT IS
VITAL. BY LAW, THE MEETING OF STOCKHOLDERS OF THE FUND WILL HAVE
TO BE ADJOURNED WITHOUT CONDUCTING ANY BUSINESS IF LESS THAN A
MAJORITY OF THE SHARES ELIGIBLE TO VOTE IS REPRESENTED. IN THAT
EVENT, THE FUND, AT STOCKHOLDERS' EXPENSE, WOULD CONTINUE TO
SOLICIT VOTES IN AN ATTEMPT TO ACHIEVE A QUORUM. CLEARLY, YOUR
VOTE COULD BE CRITICAL TO ENABLE THE FUND TO HOLD THE MEETING AS
SCHEDULED, SO PLEASE RETURN YOUR PROXY CARD IMMEDIATELY. YOU AND
ALL OTHER STOCKHOLDERS WILL BENEFIT FROM YOUR COOPERATION.
PREMIER CAPITAL GROWTH FUND, INC.
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON NOVEMBER 29, 1995
This proxy statement is furnished in connection with a
solicitation of proxies by the Board of Directors of the Premier
Capital Growth Fund, Inc. (the "Fund") to be used at the Special
Meeting of Stockholders of the Fund to be held on Wednesday,
November 29, 1995 at 10:00 a.m., at the offices of The Dreyfus
Corporation, 200 Park Avenue, 7th Floor West, New York, New York,
for the purposes set forth in the accompanying Notice of Special
Meeting of Stockholders. Stockholders of record at the close of
business on October 6, 1995 are entitled to be present and to vote
at the meeting. Stockholders are entitled to one vote for each
Fund share held and fractional votes for each fractional Fund share
held. Shares represented by executed and unrevoked proxies will be
voted in accordance with the specifications made thereon. If the
enclosed form of proxy is executed and returned, it nevertheless
may be revoked by another proxy or by letter or telegram directed
to the Fund, which must indicate the stockholder's name and account
number. To be effective, such revocation must be received prior to
the meeting. In addition, any stockholder who attends the meeting
in person may vote by ballot at the meeting, thereby canceling any
proxy previously given. There were 35,415,704.303 shares of the
Fund's common stock outstanding as of September 5, 1995.
It is estimated that proxy materials will be mailed to
stockholders of record on or about October 6, 1995. The principal
executive offices of the Fund are located at 200 Park Avenue, New
York, New York 10166. COPIES OF THE FUND'S MOST RECENT ANNUAL AND
SEMI-ANNUAL REPORTS ARE AVAILABLE UPON REQUEST, WITHOUT CHARGE, BY
WRITING TO THE FUND AT 144 GLENN CURTISS BOULEVARD, UNIONDALE, NEW
YORK 11556-0144, OR BY CALLING TOLL-FREE 1-800-645-6561.
PROPOSAL: APPROVAL OF AN AMENDMENT AND RESTATEMENT OF THE FUND'S
CHARTER
The Board of Directors has approved and recommends that
stockholders approve a comprehensive amendment and restatement of
the Fund's Articles of Incorporation, as amended (the "Charter").
A copy of the proposed amendment to the Charter in the form being
presented for approval, and as approved by the Board of Directors,
is set forth as Exhibit A to this proxy statement. A composite of
all provisions of the Fund's Charter currently in effect is set
forth as Exhibit B to this proxy statement. Certain material
differences are described below. Stockholders are urged to review
Exhibits A and B carefully. The Board of Directors believes that
the proposed amendment to the Charter is in the best interests of
the Fund and stockholders.
(A) ISSUANCE OF ADDITIONAL CLASSES OF SHARES
The Fund's Charter currently provides for the issuance of one
class of shares with each share representing an equal proportionate
interest in the Fund. The Fund's Board of Directors recommends
that Article FIFTH of the Charter be amended to permit the
Directors, without further stockholder action, to cause to be
issued one or more additional classes of shares having such
preferences or special or relative rights and privileges as the
Directors may determine, to the extent permitted under the
Investment Company Act of 1940, as amended (the "Act").
The purpose of the amendment would be to permit the Fund to
take advantage of alternative methods of selling Fund shares. The
Board of Directors believes that providing investors with
alternative methods of purchasing Fund shares would (i) enable
investors to choose the purchasing method which best suits their
individual situation, thereby encouraging current stockholders to
make additional investments in the Fund and attracting new
investors and assets to the Fund thus benefiting stockholders by
increasing investment flexibility for the Fund and reducing
operating expense ratios due to economies of scale; (ii) facilitate
distribution of the Fund's shares; and (iii) maintain the
competitive position of the Fund in relation to other funds that
have implemented or are seeking to implement similar distribution
arrangements.
If this amendment to the Charter is approved by stockholders,
the Fund currently intends to offer four classes of shares--Class
A, Class B, Class C and Class R. The currently existing class of
shares will be designated as Class A. Each Fund share, regardless
of Class, will continue to represent an identical pro rata interest
in the Fund's investment portfolio.
Class A shares would be sold at net asset value per share plus
a maximum initial sales charge of 4.50% of the public offering
price imposed at the time of purchase. Beneficial owners of Fund
shares held in a Fund account on December 31, 1995, however, will
continue to be subject to the existing sales load schedule on all
future purchases of Fund shares in that account. Class A shares
would be subject to an annual service fee at the rate of .25 of 1%
of the value of the average daily net assets of Class A pursuant to
a Shareholder Services Plan described below.
Class B shares would be sold at net asset value per share with
no initial sales charge at the time of purchase. Class B shares
would be subject to a maximum 4% contingent deferred sales charge
("CDSC"), which would be assessed only if the investor redeemed
Class B shares within six years of purchase. These shares would be
subject to an annual service fee at the rate of .25 of 1% of the
value of the average daily net assets of Class B. In addition,
Class B shares would be subject to an annual distribution fee at
the rate of .75 of 1% of the value of the average daily net assets
of Class B pursuant to a Distribution Plan adopted by the Fund in
accordance with Rule 12b-1 under the Act. Approximately six years
after the date of purchase, Class B shares automatically would
convert to Class A shares, based on the relative net asset values
for shares of each such Class, and would no longer be subject to
the distribution fee. Class B shares acquired through the
reinvestment of dividends and distributions would be converted on
a pro rata basis together with other Class B shares, in the
proportion that a shareholder's Class B shares converting to Class
A shares bears to the total Class B shares not acquired through the
reinvestment of dividends and distributions.
Class C shares would be sold at net asset value per share
with no initial sales charge at the time of purchase. Class C
shares would be subject to a 1% CDSC, which would be assessed only
if the investor redeemed Class C shares within one year of
purchase. These shares also would be subject to an annual service
fee at the rate of .25 of 1%, and an annual distribution fee at the
rate of .75 of 1%, of the value of the average daily net assets of
Class C. Class C shares will not have a conversion feature.
Class R shares would be sold at net asset value per share only
to institutional investors acting for themselves or in a fiduciary,
advisory, agency, custodial or similar capacity for qualified or
non-qualified employee benefit plans, including pension, profit-
sharing, SEP-IRAs and other deferred compensation plans, whether
established by corporations, partnerships, non-profit entities or
state and local governments, but not including IRAs or IRA
"Rollover Accounts." Class R shares would not be offered directly
to individuals, although eligible institutions would be permitted
to purchase Class R shares for accounts maintained by individuals.
Class R shares would not be subject to an annual service fee or
distribution fee.
As indicated above, Class A, Class B and Class C shares would
be subject to a Shareholder Services Plan. Under the Shareholder
Services Plan, the Fund would pay its distributor, Premier Mutual
Fund Services, Inc., for the provision of certain services to the
holders of Class A, Class B and Class C shares a fee at the annual
rate of .25 of 1% of the value of the average daily net assets of
each such Class. The services provided may include personal
services relating to shareholder accounts, such as answering
shareholder inquiries regarding the Fund and providing reports and
other information, and services related to the maintenance of
shareholder accounts. The Fund currently reimburses Dreyfus
Service Corporation, a wholly-owned subsidiary of The Dreyfus
Corporation, the Fund's investment adviser, an amount not to exceed
an annual rate of .25 of 1% of the value of the Fund's average
daily net assets for the provision of these services pursuant to a
Shareholder Services Plan which will be terminated.
Each class of shares would participate in all other respects
on an equal proportionate basis with all other classes of shares,
including as to investment income, realized and unrealized gains
and losses on portfolio investments and all other operating
expenses of the Fund. All classes of shares will vote together as
a single class at meetings of stockholders, except that shares of
a class which is affected by any matter in a manner materially
different from shares of other classes will vote as a separate
class and holders of shares of a class not affected by a matter
will not vote on that matter.
Each of the remaining changes described below is being made to
standardize the provisions of the Fund's Charter with those of
other funds in the Dreyfus Family of Funds that are organized as
Maryland corporations.
(B) CORPORATE PURPOSES AND POWERS
The purposes for which the Fund was formed are described in
Article THIRD of the current Charter. The proposed amendment to
Article THIRD would generally update and expand the description of
the Fund's business purpose to include certain instruments which
are currently available for investment by the Fund. The amendment
would not affect the Fund's investment objective or management
policies. The amendment, however, would give the Fund the
flexibility to take advantage of investment opportunities currently
available and those which may be available in the future.
(C) QUORUM
The Board recommends amending the Charter to provide that the
presence in person or by proxy of the holders of one-third of the
shares of the Fund's stock entitled to vote would constitute a
quorum at any meeting of stockholders. Currently, the Charter is
silent as to quorum. Under Maryland law, unless the charter of a
corporation provides otherwise, a majority of all votes entitled to
be cast at a stockholders' meeting constitutes a quorum.
Establishing that one-third of the Fund's outstanding shares
constitutes a quorum should enable the Fund to conduct future
stockholders' meetings without incurring the increased burden and
expense of soliciting votes from at least a majority of the Fund's
shares in order to achieve a quorum. The amendment would not
affect the number of shares required to adopt proposals under
Maryland law or the Act.
(D) LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
After the Fund was organized, the Maryland General Corporation
Law was revised to permit a Maryland corporation to limit the
liability of its directors and officers under certain circumstances
and to broaden the indemnification which a Maryland corporation may
make available to its directors and officers. The Fund's Board of
Directors has approved and recommends that stockholders approve an
amendment to the Fund's Charter to reflect current Maryland law.
Maryland law is similar to the laws of most other states,
including Delaware, which limit the risk of personal liability of
corporate directors and, in many cases, officers. These laws
respond to concerns about increased litigation against corporate
directors and officers and resulting increased cost and limited
availability of liability insurance for directors and officers.
Concerns also have been raised about the willingness of qualified
persons to serve as directors and officers and the potential for
adverse effects on decision making by persons who serve as
directors and officers.
The proposed amendment to the Charter would provide that to
the fullest extent permitted by Maryland law, but subject to the
provisions of the Act and related limitations described below, no
director or officer of the Fund shall have any liability to the
Fund or its stockholders for money damages. The proposed amendment
would provide, however, that it would not protect or purport to
protect any director or officer of the Fund (i) against any
liability for noncompliance with any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Act or of
any valid rule, regulation or order of the Securities and Exchange
Commission ("SEC") under said Acts, or (ii) against any liability
to the Fund or its stockholders to which such director or officer
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"). The
Act provides that the articles of incorporation of an investment
company may not contain any provision which so protects or purports
to protect any director or officer of an investment company with
respect to such disabling conduct. The proposed amendment also
would require that, subject to the provisions of the Act and such
provisions with respect to disabling conduct, the Fund indemnify
and advance expenses to its directors and officers to the fullest
extent that indemnification of directors is permitted by Maryland
law. The amendment would amend the existing Article SEVENTH of the
Charter with respect to indemnification and advances.
If the proposed amendment is approved by stockholders, the
Fund's directors and officers would continue to have personal
liability for damages in suits brought by or on behalf of the Fund
in circumstances in which the Maryland General Corporation Law, the
Act or Securities Act does not permit their personal liability to
be limited, as follows: (a) under the Maryland General Corporation
Law, to the extent that (i) it is proved that a director or officer
received an improper benefit or profit in money, property or
services, for the amount of such improper benefit or profit, or
(ii) a judgment or other final adjudication adverse to a director
or officer is entered in a proceeding based on a finding that his
action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in
the proceeding; and (b) under the Act or the Securities Act, to the
extent that such proposed amendment would be effective to (i)
require a waiver of compliance with any provision of the Act or the
Securities Act or of any valid rule, regulation or order of the SEC
under those Acts, or (ii) protect or purport to protect any
director or officer of the Fund against any liability to the Fund
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. In circumstances in which the personal liability of
directors and officers is limited, claims made by or on behalf of
the Fund against them would be limited to equitable remedies such
as injunction.
The proposed amendment would apply only to claims against a
director or officer arising out of his role as a director or
officer, not to his responsibilities under other laws. It will not
limit possible liability to third parties under tort or contract
law, and will not apply with respect to events or omissions
occurring prior to February 8, 1988, the effective date of the
revised Maryland law.
Under Maryland law, indemnification against judgments,
penalties, fines, settlements and expenses may be available to a
director unless his act or omission was material to the cause of
action, and was committed in bad faith or was the result of active
and deliberate dishonesty, or the individual received an improper
personal benefit (or, in a criminal case, had reasonable cause to
believe that his act or omission was unlawful). Indemnification
may be made against amounts recoverable by settlement of suits
brought by or in the right of a corporation, except where the
individual is adjudged liable to the corporation. The termination
of a civil proceeding by judgment, order or settlement does not
create a presumption that the requisite standard of conduct was not
met. The law also provides that a corporation, in addition to
providing insurance, may fund its indemnification obligations with
trust funds, letters of credit or surety bonds. Advances of
expenses by a corporation in the course of litigation will be
permitted (upon the undertaking of the director to repay such sums
if indemnification is ultimately denied) without a preliminary
determination as to the ultimate entitlement of the director to be
indemnified. Officers, employees and agents may be indemnified to
the same extent as directors and to such further extent as is
consistent with law.
As discussed above, the SEC's Division of Investment
Management is of the view that an indemnification provision in an
investment company's articles of incorporation or by-laws would not
violate the relevant provisions of the Act if (a) it precludes
indemnification for any liability, whether or not there is an
adjudication of liability, arising by reason of disabling conduct,
and (b) it sets forth "reasonable and fair means" for determining
whether indemnification shall be made. The Fund's By-Laws
currently provide that indemnification shall be made only
following: (a) a final decision on the merits by a court or other
body before whom the proceeding was brought that the person to be
indemnified was not liable by reason of disabling conduct, or (b)
in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the person to be indemnified
was not liable by reason of disabling conduct by (i) vote of a
majority of a quorum of the directors of the Fund who are neither
"interested persons" of the Fund as defined in Section 2(a)(19) of
the Act, nor parties to the proceeding ("disinterested non-party
directors"), or (ii) an independent legal counsel in a written
opinion. In addition, pursuant to the view of the SEC's Division
of Investment Management, the Fund's By-Laws currently provide that
the Fund may make advances to a current or former director or
officer of the Fund claiming indemnification for payment of the
reasonable expenses incurred by him in conjunction with proceedings
to which he is a party, provided that, among other things, the
person seeking indemnification shall provide to the Fund a written
undertaking to repay any such advance if it should ultimately be
determined that the standard of conduct necessary for
indemnification has not been met, and provided further that at
least one of the following additional conditions is met: (a) the
person seeking indemnification shall provide security in form and
amount acceptable to the Fund for his undertaking; (b) the Fund is
insured against losses arising by reason of any lawful advance; or
(c) a majority of the disinterested non-party directors of the
Fund, or independent legal counsel in a written opinion, shall
determine that, based on a review of facts readily available to the
Fund at the time the advance is proposed to be made, there is
reason to believe that the person seeking indemnification
ultimately will be found to be entitled to indemnification.
It is expected that the Fund's By-Laws will continue to
contain these limitations and conditions with respect to
indemnification of and payment of advance to current and former
directors and officers.
If Maryland law is subsequently amended so as to permit
further limitation of the monetary liability of directors and
officers, then under the proposed amendment such liability will be
limited to the fullest extent permitted (but subject to the
limitations described above with respect to the Securities Act, the
Act and disabling conduct by a director or officer) without further
action by the Fund's stockholders. The Fund is not aware of any
proposed or anticipated changes to Maryland law which would affect
the personal liability or indemnification of directors or officers
of Maryland corporations. The proposed amendment to the Charter
would assure directors and officers that its projections could not
subsequently be withdrawn with respect to actions arising from
events or omissions occurring prior to withdrawal.
Under the new provisions, in certain circumstances, the Fund
and its stockholders will lose the right to recover monetary
damages from directors and officers who might otherwise have been
found liable. In addition, directors and officers may be entitled
to more liberal indemnification from the Fund in suits brought by
or in the right of the Fund. To the extent that certain claims
against directors and officers involving a breach of duty are
limited to equitable remedies, the proposed amendment may result in
a reduced likelihood of derivative litigation and may discourage
the initiation of suits against directors and officers for breach
of their duty of care.
As to the indemnification provisions described above, it is
the opinion of the SEC that, insofar as indemnification for
liabilities arising under the Securities Act may be permitted to
directors, officers and certain others, such indemnification is
against public policy and is unenforceable.
No litigation of the type covered by the proposed amendment is
currently pending or threatened against any director or officer of
the Fund. No occasion has arisen in which the Fund was required to
pay any amount in indemnification of any director or officer of the
Fund. In addition, although the Fund has not experienced
difficulty in attracting and retaining highly qualified directors
and officers, the Board believes that the proposed amendment will
enhance its ability to attract and retain such directors and
officers in the future.
The Board or Directors believes that, in view of the
proliferation of litigation against corporate directors and
officers in which difficult business judgments are tested with the
benefit of hindsight, and the need to attract and retain corporate
directors and officers who can make significant corporate decisions
in the best interest of the Fund with the reduced threat of
personal liability, the proposed amendment is in the best interest
of the Fund and its stockholders. Although the current directors
of the Fund may personally benefit from the adoption of this
proposed amendment and are thus subject to a conflict of interest
in proposing its approval, the Board believes, for the reasons
stated above, that approval of this proposed amendment is in the
best interest of the Fund and its stockholders.
(E) VALUATION OF FUND ASSETS
The Fund's Charter currently provides that the total value of
Fund assets be determined for purposes of the Charter on the basis
of market value for securities and fair value for all other assets.
The Board of Directors believes that this provision is unnecessary
in light of similar requirements under the Act and recommends
deleting it.
REQUIRED VOTE AND DIRECTORS' RECOMMENDATION
Approval of this proposal requires the affirmative vote of the
holders of a majority of the Fund's outstanding voting securities.
If stockholders of the Fund do not approve the proposed Charter
amendment, then the Fund's existing Charter will remain in effect.
THE BOARD OF DIRECTORS, INCLUDING THE "NON-INTERESTED" DIRECTORS,
RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" APPROVAL OF THE AMENDMENT
AND RESTATEMENT OF THE FUND'S CHARTER ADDITIONAL INFORMATION
The Dreyfus Corporation, located at 200 Park Avenue, New York,
New York 10166, serves as the Fund's investment adviser. The
Dreyfus Corporation was formed in 1947 and is a wholly-owned
subsidiary of Mellon Bank, N.A. As of September 1, 1995, The
Dreyfus Corporation managed or administered approximately $80
billion in assets for more than 1.8 million investor accounts
nationwide.
Premier Mutual Fund Services, Inc. (the "Distributor"), with
principal offices at One Exchange Place, Boston, Massachusetts
02109, serves as the Fund's distributor. The Distributor's
ultimate parent company is Boston Institutional Group, Inc.
The following table presents certain information for the Fund
regarding the beneficial ownership of its shares as of September 5,
1995 by each officer and Director of the Fund owning shares on such
date. In each case, such amount constitutes less than 1% of the
Fund's outstanding shares.
NAME OF BENEFICIAL OWNER NUMBER OF SHARES
Rosalind Gersten Jacobs 1,876.853
Paul A. Marks 183.652
Martin H. Peretz 3,468.941
VOTING INFORMATION
If a proxy is properly executed and returned accompanied by
instructions to withhold authority to vote, represents a broker
"non-vote" (that is, a proxy from a broker or nominee indicating
that such person has not received instructions from the beneficial
owner or other person entitled to vote shares of a Fund on a
particular matter with respect to which the broker or nominee does
not have discretionary power) or marked with an abstention
(collectively, "abstentions"), the Fund's shares represented
thereby will be considered to be present at the meeting for
purposes of determining the existence of a quorum for the
transaction of business. Under Maryland law, abstentions do not
constitute a vote "for" or "against" a matter and will be
disregarded in determining the "votes cast" on an issue. For this
reason, abstentions will have the effect of a "no" vote for
purposes of obtaining the requisite approval of a proposal.
In the event that a quorum is not present at a meeting, or if
a quorum is present but sufficient votes to approve the proposals
are not received, the persons named as proxies may propose one or
more adjournments of the meeting to permit further solicitation of
proxies. In determining whether to adjourn a meeting, the
following factors may be considered: the nature of the proposal,
the percentage of votes actually cast, the percentage of negative
votes actually cast, the nature of any further solicitation and the
information to be provided to stockholders with respect to the
reasons for the solicitation. Any adjournment will require the
affirmative vote of a majority of those shares affected by the
adjournment that are represented at the meeting in person or by
proxy. A stockholder vote may be taken for one proposal in this
Proxy Statement prior to any adjournment if sufficient votes have
been received for approval. If a quorum is present, the persons
named as proxies will vote those proxies which they are entitled to
vote "FOR" a proposal in favor of such adjournment, and will vote
those proxies required to be voted "AGAINST" a proposal against any
adjournment. A quorum is constituted with respect to the Fund by
the presence in person or by proxy of the holders of a majority of
the Fund's outstanding shares entitled to vote at the meeting.
As of September 5, 1995, to the Fund's knowledge no
stockholder owned 5% or more of the Fund's outstanding voting
securities.
OTHER MATTERS
The Board of Directors is not aware of any other matters which
may come before the meeting. However, should any such matters
properly come before the meeting, it is the intention of the
persons named in the accompanying form of proxy to vote the proxy
in accordance with their judgment on such matters.
The Fund will bear the cost of soliciting proxies. In
addition to the use of the mails, proxies may be solicited
personally, by telephone or by telegraph, and the Fund may pay
persons holding Fund shares in their names or those of their
nominees for their expenses in sending soliciting materials to
their principals. In addition, the Fund may retain an outside firm
to solicit proxies on behalf of the Fund's Directors, which would
be estimated to cost the Fund approximately $10,728.
Unless otherwise required under the Act, ordinarily it will
not be necessary for the Fund to hold annual meetings of
stockholders. As a result, the Fund's stockholders will not
consider each year the election of Board members or the appointment
of auditors. However, the Fund's Board will call a meeting of its
stockholders for the purpose of electing Board members if, at any
time, less than a majority of the Board members then holding office
have been elected by stockholders. Under the Act, stockholders of
record of not less than two-thirds of the Fund's outstanding shares
may remove Board members of the Fund through a declaration in
writing or by vote cast in person or by proxy at a meeting called
for that purpose. Under the Fund's By-Laws, the Board members are
required to call a meeting of stockholders for the purpose of
voting upon the question of removal of any such Board members when
required in writing to do so by the stockholders of record of not
less than 10% of the Fund's outstanding shares. Stockholders
wishing to submit proposals for inclusion in the Fund's proxy
statement for a subsequent stockholder meeting should send their
written submissions to the principal executive offices of the Fund
at 200 Park Avenue, New York, New York 10166, Attention: General
Counsel.
NOTICE TO BANKS, BROKER/DEALERS AND VOTING TRUSTEES AND THEIR
NOMINEES
Please advise the Fund, in care of The Shareholder Services
Group, Inc., a subsidiary of First Data Corporation, Attention:
Premier Capital Growth Fund, Inc., P.O. Box 9119, Quincy,
Massachusetts 02269-9947, whether other persons are the beneficial
owners of the shares for which proxies are being solicited from
you, and if so, the number of copies of the proxy statement and
other soliciting material you wish to receive in order to supply
copies to the beneficial owners of shares.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. THEREFORE,
STOCKHOLDERS WHO DO NOT EXPECT TO ATTEND THE MEETING IN PERSON ARE
URGED TO COMPLETE, SIGN, DATE AND RETURN THE PROXY CARD IN THE
ENCLOSED STAMPED ENVELOPE. Dated: October 6, 1995
EXHIBIT PROPOSED ARTICLES OF AMENDMENT AND RESTATEMENT
FIRST: The name of the corporation (hereinafter called the
"corporation") is Premier Capital Growth Fund, Inc.
SECOND: The corporation is formed for the following purpose
or purposes:
(a) to conduct, operate and carry on the business of an
investment company;
(b) to subscribe for, invest in, reinvest in, purchase
or otherwise acquire, hold, pledge, sell, assign, transfer, lend,
write options on, exchange, distribute or otherwise dispose of and
deal in and with securities of every nature, kind, character, type
and form, including without limitation of the generality of the
foregoing, all types of stocks, shares, futures contracts, bonds,
debentures, notes, bills and other negotiable or non-negotiable
instruments, obligations, evidences of interest, certificates of
interest, certificates of participation, certificates, interests,
evidences of ownership, guarantees, warrants, options or evidences
of indebtedness issued or created by or guaranteed as to principal
and interest by any state or local government or any agency or
instrumentality thereof, by the United States Government or any
agency, instrumentality, territory, district or possession thereof,
by any foreign government or any agency, instrumentality,
territory, district or possession thereof, by any corporation
organized under the laws of any state, the United States or any
territory or possession thereof or under the laws of any foreign
country, bank certificates of deposit, bank time deposits, bankers'
acceptances and commercial paper; to pay for the same in cash or by
the issue of stock, including treasury stock, bonds or notes of the
corporation or otherwise; and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any
and all such investments of every kind and description, including
without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more persons,
firms, associations or corporations to exercise any of said rights,
powers and privileges in respect of any said instruments;
(c) to borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging or otherwise subjecting as
security the assets of the corporation;
(d) to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, transfer, and otherwise
deal in, shares of stock of the corporation, including shares of
stock of the corporation in fractional denominations, and to apply
to any such repurchase, redemption, retirement, cancellation or
acquisition of shares of stock of the corporation any funds or
property of the corporation whether capital or surplus or
otherwise, to the full extent now or hereafter permitted by the
laws of the State of Maryland;
(e) to conduct its business, promote its purposes and
carry on its operations in any and all of its branches and maintain
offices both within and without the State of Maryland, in any
States of the United States of America, in the District of Columbia
and in any other parts of the world; and
(f) to do all and everything necessary, suitable,
convenient, or proper for the conduct, promotion and attainment of
any of the businesses and purposes herein specified or which at any
time may be incidental thereto or may appear conducive to or
expedient for the accomplishment of any of such businesses and
purposes and which might be engaged in or carried on by a
corporation incorporated or organized under the Maryland General
Corporation Law, and to have and exercise all of the powers
conferred by the laws of the State of Maryland upon corporations
incorporated or organized under the Maryland General Corporation
Law.
The foregoing provisions of this Article SECOND shall be
construed both as purposes and powers and each as an independent
purpose and power. The foregoing enumeration of specific purposes
and powers shall not be held to limit or restrict in any manner the
purposes and powers of the corporation, and the purposes and powers
herein specified shall, except when otherwise provided in this
Article SECOND, be in no wise limited or restricted by reference
to, or inference from, the terms of any provision of this or any
other Article of these Articles of Incorporation; provided, that
the corporation shall not conduct any business, promote any
purpose, or exercise any power or privilege within or without the
State of Maryland which, under the laws thereof, the corporation
may not lawfully conduct, promote, or exercise.
THIRD: The post office address of the principal office of
the corporation within the State of Maryland, and the name and
address of the resident agent of the corporation within the State
of Maryland, is The Corporation Trust Incorporated, a Maryland
corporation, 32 South Street, Baltimore, Maryland 21202.
FOURTH: (1) The total number of shares of stock which the
corporation has authority to issue is four hundred million
(400,000,000) shares of Common Stock, all of which are of a par
value of one dollar ($1.00) each. One hundred million
(100,000,000) of the authorized shares of Common Stock are
classified as Class A Common Stock, one hundred million
(100,000,000) of the authorized shares of Common Stock are
classified as Class B Common Stock, one hundred million
(100,000,000) of the authorized shares of Common Stock are
classified as Class C Common Stock, and one hundred million
(100,000,000) shares of the authorized shares of Common Stock are
classified as Class R Common Stock.
(2) The aggregate par value of all the authorized
shares of stock is four hundred million dollars ($400,000,000.00).
(3) The Board of Directors of the corporation is
authorized, from time to time, to fix the price or the minimum
price or the consideration or minimum consideration for, and to
authorize the issuance of, the shares of stock of the corporation
and securities convertible into shares of stock of the corporation.
(4) The Board of Directors of the corporation is
authorized, from time to time, to classify or to reclassify, as the
case may be, any unissued shares of stock of the corporation by
setting or changing the preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends,
qualifications and terms or conditions of redemption of the stock.
(5) Subject to the power of the Board of Directors
to classify and reclassify unissued shares, the shares of each
class of stock of the corporation shall have the following
preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms
and conditions of redemption:
(a) (i) All consideration received by the
corporation for the issuance or sale of shares together with all
income, earnings, profits and proceeds thereof, shall irrevocably
belong to such class for all purposes, subject only to the rights
of creditors and to the effect of the conversion of shares of any
class of stock into another class of stock of the corporation, and
are herein referred to as "assets belonging to" such class.
(ii) The assets belonging to such class
shall be charged with the liabilities of the corporation in respect
of such class and with such class's share of the general
liabilities of the corporation, in the latter case in proportion
that the net asset value of such class bears to the net asset value
of all classes. The determination of the Board of Directors shall
be conclusive as to the allocation of liabilities, including
accrued expenses and reserves, to a class.
(iii) Dividends or distributions on shares
of each class, whether payable in stock or cash, shall be paid only
out of earnings, surplus or other assets belonging to such class.
(iv) In the event of the liquidation or
dissolution of the corporation, stockholders of each class shall be
entitled to receive, as a class, out of the assets of the
corporation available for distribution to stockholders, the assets
belonging to such class and the assets so distributable to the
stockholders of such class shall be distributed among such
stockholders in proportion to the number of shares of such class
held by them.
(b) A class may be invested with one or more
other classes in a common investment portfolio. Notwithstanding
the provisions of paragraph (5)(a) of this Article FOURTH, if two
or more classes are invested in a common investment portfolio, the
shares of each such class of stock of the corporation shall be
subject to the following preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption, and, if
there are other classes of stock invested in a different investment
portfolio, shall also be subject to the provisions of paragraph
(5)(a) of this Article FOURTH at the portfolio level as if the
classes invested in the common investment portfolio were one class:
(i) The income and expenses of the
investment portfolio shall be allocated among the classes invested
in the investment portfolio in accordance with the number of shares
outstanding of each such class or as otherwise determined by the
Board of Directors.
(ii) As more fully set forth in this
paragraph (5)(b) of Article FOURTH, the liabilities and expenses of
the classes invested in the same investment portfolio shall be
determined separately from those of each other and, accordingly,
the net asset value, the dividends and distributions payable to
holders, and the amounts distributable in the event of liquidation
of the corporation to holders of shares of the corporation's stock
may vary from class to class invested in the same investment
portfolio. Except for these differences and certain other
differences set forth in this paragraph (5) of Article FOURTH or
elsewhere in these Articles of Incorporation, the classes invested
in the same investment portfolio shall have the same preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and
conditions of redemption.
(iii) The dividends and distributions of
investment income and capital gains with respect to the classes
invested in the same investment portfolio shall be in such amounts
as may be declared from time to time by the Board of Directors, and
such dividends and distributions may vary among the classes
invested in the same investment portfolio to reflect differing
allocations of the expenses of the corporation among the classes
and any resultant differences between the net asset values per
share of the classes, to such extent and for such purposes as the
Board of Directors may deem appropriate. The allocation of
investment income, capital gains, expenses and liabilities of the
corporation among the classes shall be determined by the Board of
Directors in a manner that is consistent with applicable law.
(c) Except as set forth below, on each matter
submitted to a vote of the stockholders, each holder of a share of
stock shall be entitled to one vote for each share standing in his
name on the books of the corporation irrespective of the class
thereof. All holders of shares of stock shall vote as a single
class except as may otherwise be required by law pursuant to any
applicable order, rule or interpretation issued by the Securities
and Exchange Commission, or otherwise, or except with respect to
any matter which affects only one or more classes of stock, in
which case only the holders of shares of the class or classes
affected shall be entitled to vote.
(d) The proceeds of the redemption of the
shares of any class of stock of the corporation may be reduced by
the amount of any contingent deferred sales charge or other charge
(which charges may vary within and among the classes) payable on
such redemption pursuant to the terms of issuance of such shares,
all in accordance with the Investment Company Act of 1940, as
amended, and applicable rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD").
(e) At such times as may be determined by the
Board of Directors (or with the authorization of the Board of
Directors, by the officers of the corporation) in accordance with
the Investment Company Act of 1940, as amended, applicable rules
and regulations thereunder and applicable rules and regulations of
the NASD and reflected in the corporation's current registration
statement, shares of a particular class of stock of the corporation
may be automatically converted into shares of another class of
stock of the corporation based on the relative net asset values of
such classes at the time of conversion, subject, however, to any
conditions of conversion that may be imposed by the Board of
Directors (or with the authorization of the Board of Directors, by
the officers of the corporation) and reflected in the corporation's
current registration statement as aforesaid.
Except as provided above, all provisions of the Articles of
Incorporation relating to stock of the corporation shall apply to
shares of, and to the holders of, all classes of stock.
(6) Notwithstanding any provisions of the Maryland
General Corporation Law requiring a greater proportion than a
majority of the votes of stockholders entitled to be cast in order
to take or authorize any action, any such action may be taken or
authorized upon the concurrence of a majority of the aggregate
number of votes entitled to be cast thereon.
(7) The presence in person or by proxy of the
holders of one-third of the shares of stock of the corporation
entitled to vote (without regard to class) shall constitute a
quorum at any meeting of the stockholders, except with respect to
any matter which, under applicable statutes or regulatory
requirements, requires approval by a separate vote of one or more
classes of stock, in which case the presence in person or by proxy
of the holders of one-third of the shares of stock of each class
required to vote as a class on the matter shall constitute a
quorum.
(8) The corporation may issue shares of Common
Stock in fractional denominations to the same extent as its whole
shares, and shares in fractional denominations shall be shares of
Common 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.
(9) All shares of the Common Stock of the
corporation now or hereafter authorized shall be "subject to
redemption" and "redeemable," in the sense used in the general laws
of the State of Maryland authorizing the formation of corporations,
at the redemption or purchase price for any such shares, determined
in the manner set out in these Articles of Incorporation or in any
amendment thereto; provided, however, that the corporation shall
have the right, at its option, to refuse to redeem the shares of
stock at less than the par value thereof. In the absence of any
specification as to the purpose for which shares of the Common
Stock of the corporation are repurchased by it, all shares so
repurchased shall be deemed to be "purchased for retirement" in the
sense contemplated by the laws of the State of Maryland and the
number of the authorized shares of the Common Stock of the
corporation shall not be reduced by the number of any shares
repurchased by it.
(10) No holder of any shares of any class of the
corporation shall be entitled as of right to subscribe for,
purchase, or otherwise acquire any shares of any class which the
corporation proposes to issue, or any rights or options which the
corporation proposes to grant for the purchase of shares of any
class or for the purchase of any shares, bonds, securities, or
obligations of the corporation which are convertible into or
exchangeable for, or which carry any rights to subscribe for,
purchase, or otherwise acquire shares of any class of the
corporation; and any and all of such shares, bonds, securities or
obligations of the corporation, whether now or hereafter authorized
or created, may be issued, or may be reissued or transferred if the
same have been reacquired and have treasury status, and any and all
of such rights and options may be granted by the Board of Directors
to such persons, firms, corporations and associations, and for such
lawful consideration, and on such terms, as the Board of Directors
in its discretion may determine, without first offering the same,
or any thereof, to any said holder.
FIFTH: (1) The number of directors of the
corporation, until such number shall be increased or decreased
pursuant to the by-laws of the corporation, is ten. The number of
directors shall never be less than the minimum number prescribed by
the Maryland General Corporation Law.
(2) The names of the persons who shall act as
directors of the corporation until his or her successor or
successors are duly chosen and qualify are as follows:
Joseph S. DiMartino
Rosalind Gersten Jacobs
David P. Feldman
Irving Kristol
John M. Fraser, Jr.
Dr. Paul A. Marks
Robert R. Glauber
Dr. Martin Peretz
James F. Henry
Bert W. Wasserman
(3) The initial by-laws of the corporation shall be
adopted by the directors at their organizational meeting or by
their informal written action, as the case may be. Thereafter, the
power to make, alter, and repeal the by-laws of the corporation
shall be vested in the Board of Directors of the corporation.
(4) Any determination made in good faith and, so
far as accounting matters are involved, in accordance with
generally accepted accounting principles by or pursuant to the
direction of the Board of Directors, as to the amount of the
assets, debts, obligations, or liabilities of the corporation or
belonging to, or attributable to any class of shares of the
corporation, as to the amount of any reserves or charges set up and
the propriety thereof, as to the time of or purpose for creating
such reserves or charges, as to the use, alteration or cancellation
of any reserves or charges (whether or not any debt, obligation or
liability for which such 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 or
closing bid or asked price of any investment owned or held by the
corporation, as to the market value of any investment or fair value
of any other asset of the corporation, as to the number of shares
of the corporation outstanding, as to the estimated expense to the
corporation in connection with purchases of its shares, as to the
ability to liquidate investments in orderly fashion, as to the
extent to which it is practicable to deliver a cross-section of the
portfolio of the corporation in payment for any such shares, or as
to any other matters relating to the issue, sale, purchase and/or
other acquisition or disposition of investments or shares of the
corporation, shall be final and conclusive, and shall be binding
upon the corporation and all holders of its shares, past, present
and future, and shares of the corporation are issued and sold on
the condition and understanding, evidenced by acceptance of
certificates for such shares, that any and all such determinations
shall be binding as aforesaid.
SIXTH: (1) 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.
(2) The corporation shall indemnify and advance
expenses to its currently acting and its former directors to the
fullest extent that indemnification of directors and advancement of
expenses to directors is permitted by the Maryland General
Corporation Law. The corporation shall indemnify and advance
expenses to its officers to the same extent as its directors and to
such further extent as is consistent with law. The board of
directors may, through a by-law, resolution or agreement, make
further provisions for indemnification of directors, officers,
employees and agents to the fullest extent permitted by the
Maryland General Corporation Law.
(3) No provision of this Article SIXTH shall be
effective to protect or purport to protect any director or officer
of the corporation against any liability to the corporation 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.
(4) References to the Maryland General Corporation
Law in this Article SIXTH are to the law as from time to time
amended. No amendment to the Articles of Incorporation of the
corporation shall affect any right of any person under this Article
SIXTH based on any event, omission or proceeding prior to such
amendment.
SEVENTH: (1) Any holder of shares of stock of the
corporation shall be entitled to require the corporation to redeem
and the corporation shall be obligated to redeem at the option of
such holder all or any part of the shares of the corporation owned
by said holder, at the redemption price, pursuant to the method,
upon the terms and subject to the conditions hereinafter set forth:
(a) Certificates for shares of stock shall be
presented for redemption in proper form for transfer to the
corporation or the agent of the corporation appointed for such
purpose, together with a written request that the corporation
redeem all or any part of the shares represented thereby.
(b) The redemption price per share shall be
the net asset value per share determined at such time or times as
the Board of Directors of the corporation shall designate in
accordance with any provision of the Investment Company Act of
1940, as amended, any rule or regulation thereunder or exemption or
exception therefrom, or any rule or regulation made or adopted by
any securities association registered under the Securities Exchange
Act of 1934.
(c) Net asset value per share of a class shall
be determined by dividing:
(i) The total value of the assets
belonging to such class or, in the case of a class invested in a
common investment portfolio with other classes, such class's
proportionate share of the total value of the assets belonging to
the common investment portfolio, such value determined as provided
in Subsection (d) below less, to the extent determined by or
pursuant to the direction of the Board of Directors in accordance
with generally accepted accounting principles, all debts,
obligations and liabilities of such class (which debts, obligations
and liabilities shall include, without limitation of the generality
of the foregoing, any and all debts, obligations, liabilities, or
claims, of any and every kind and nature, fixed, accrued and
otherwise, including the estimated accrued expenses of management
and supervision, and any reserves or charges for any or all of the
foregoing, whether for taxes, expenses, contingencies or otherwise,
and the price of capital stock redeemed but not paid for) but
excluding such class's liability upon its shares and its surplus,
by
(ii) The total number of shares of such
class outstanding.
The Board of Directors is empowered, in its absolute
discretion, to establish other methods for determining such net
asset value whenever such other methods are deemed by it to be
necessary in order to enable the corporation to comply with, or are
deemed by it to be desirable provided they are not inconsistent
with, any provision of the Investment Company Act of 1940, as
amended, or any rule or regulation thereunder.
(d) In determining for the purposes of these
Articles of Incorporation the total value of the assets of the
corporation at any time, investments and any other assets of the
corporation shall be valued in such manner as may be determined
from time to time by the Board of Directors.
(e) Payment of the redemption price by the
corporation may be made either in cash or in securities or other
assets at the time owned by the corporation or partly in cash and
partly in securities or other assets at the time owned by the
corporation. The value of any part of such payment to be made in
securities or other assets of the corporation shall be the value
employed in determining the redemption price. Payment of the
redemption price shall be made on or before the seventh day
following the day on which the shares are properly presented for
redemption hereunder, except that delivery of any securities
included in any such payment shall be made as promptly as any
necessary transfers on the books of the issuers whose securities
are to be delivered may be made, and, except as postponement of the
date of payment may be permissible under the Investment Company Act
of 1940, and the rules and regulations thereunder.
The corporation, pursuant to resolution of the Board of
Directors, may deduct from the payment made for any shares redeemed
a liquidating charge not in excess of one percent (1%) of the
redemption price of the shares so redeemed, and the Board of
Directors may alter or suspend any such liquidating charge from
time to time.
(f) Redemption of shares of stock by the
corporation is conditional upon the corporation having funds or
property legally available therefor.
(2) The corporation, either directly or through an
agent, may repurchase its shares, out of funds legally available
therefor, upon such terms and conditions and for such consideration
as the Board of Directors shall deem advisable, by agreement with
the owner at a price not exceeding the net asset value per share as
determined by the corporation at such time or times as the Board of
Directors of the corporation shall designate, less a liquidating
charge not to exceed one percent (1%) of such net asset value, if
and as fixed by resolution of the Board of Directors of the
corporation from time to time, and take all other steps deemed
necessary or advisable in connection therewith.
(3) The obligations set forth in this Article
SEVENTH may be suspended or postponed as may be permissible under
the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
EIGHTH: From time to time any of the provisions of
the Charter of the corporation may be amended, altered or repealed,
including amendments which alter the contract rights as expressly
set forth in the Charter of any class of stock outstanding, and
other provisions authorized by the Maryland General Corporation Law
at the time in force may be added or inserted in the manner and at
the time prescribed by said Law, and all contracts and rights at
any time conferred upon the stockholders of the corporation by its
Charter are granted subject to the provisions of this Article and
the reservation of the right to amend the Charter herein contained.
EXHIBIT EXISTING CHARTER OF PREMIER CAPITAL GROWTH FUND, INC.
FIRST: (1) The name, including the full given name
and the surname, of the incorporator is Daniel C. Maclean.
(2) The said incorporator's post office address,
including the street and number, if any, including the city or
county, and including the state and country, is 200 Park Avenue,
New York, New York 10166.
(3) The said incorporator is at least eighteen
years of age.
(4) The said incorporator is forming the
corporation named in these Articles of Incorporation under the
general laws of the State of Maryland.
SECOND: The name of the corporation (hereinafter
called the "corporation") is Premier Capital Growth Fund, Inc.
THIRD: The corporation is formed for the following
purpose or purposes:
(a) to conduct, operate and carry on the
business of an investment company.
(b) to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, purchase on margin, own, hold,
pledge, sell, assign, transfer, effect short sales of, exchange,
distribute or otherwise dispose of, securities of every nature,
kind, character, type and form, including without limitation of the
generality of the foregoing, all types of stocks, shares, bounds,
debentures, obligations, notes, evidences of interest, evidence of
indebtedness, certificates of interest, certificates of
participation, certificates of deposit, certificates, interests,
evidences of ownership, guarantees, warrants or options, issued or
created by any and all corporations, associations, trusts, entities
or persons, public or private, whether incorporated, created,
established or organized under the laws of the United States of
America, any of the States of the United States of America, or any
territory or district or colony or possession thereof, or under the
laws of any foreign country, and including domestic and foreign
government and municipal securities and obligations, bank
acceptances, commercial paper and secured call loans; to pay for
the same in cash or by the issue of stock, including treasury
stock, bonds or notes of the corporation or otherwise; and to
exercise any and all of the rights, powers and privileges of
ownership or interest in respect of any and all such securities of
every kind and description, including, without limitation, the
right to vote thereon and to consent and otherwise act with respect
thereto, with power to designate one or more persons, firms,
associations or corporations to exercise any said rights, powers
and privileges in respect of any said securities.
(c) to borrow money or otherwise obtain credit
and to secure the same by mortgaging, pledging or otherwise
subjecting as security the assets of the corporation, and to
endorse, guarantee or undertake the performance of any obligation,
contract or engagement of any other person, firm, association or
corporation.
(d) to issue, sell, repurchase, redeem,
retire, cancel, acquire, hold, resell, reissue, dispose of,
transfer, and otherwise deal in, shares of Common Stock of the
corporation, including shares of Common Stock of the corporation in
fractional denominations, and to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of shares of
Common Stock of the corporation any funds or property of the
corporation whether capital or surplus or otherwise, to the full
extent now or hereafter permitted by the laws of the State of
Maryland.
(e) to conduct its business, promote its
purposes, and carry on its operations in any and all of its
branches and maintain offices both within and without the State of
Maryland, in any and all States of the United States of America, in
the District of Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions, agencies, or
instrumentalities of the United States of America and of foreign
governments.
(f) to do all and everything necessary,
suitable, convenient, or proper for the conduct, promotion, and
attainment of any of the business and purposes herein specified or
which at any time may be incidental thereto or may appear conducive
to or expedient for the accomplishment of any of such business and
purposes and which might be engaged in or carried on by a
corporation incorporated or organized under the General Corporation
Law of the State of Maryland, and to have and exercise all of the
powers conferred by the laws of the State of Maryland upon
corporations incorporated or organized under the General
Corporation law of the State of Maryland.
The foregoing provisions of this Article THIRD shall be
construed both as purposes and powers and each as an independent
purpose and power. The foregoing enumeration of specific purposes
and powers shall not be held to limit or restrict in any manner the
purposes and powers of the corporation, and the purposes and powers
herein specified shall, except when otherwise provided in this
Article THIRD, be in no wise limited or restricted by reference to,
or inference from, the terms of any provision of this or any other
Article of these Articles of Incorporation; provided, that the
corporation shall not conduct any business, promote any purpose, or
exercise any power or privilege within or without the State of
Maryland which, under the laws thereof, the corporation may not
lawfully conduct, promote, or exercise.
FOURTH: The post office address, including street
and number, if any, and the city or county, of the principal office
of the corporation within the State of Maryland, is c/o The
Corporation Trust Incorporated, a Maryland corporation, 32 South
Street, Baltimore, Maryland 21202. The words "principal office" as
used herein shall have the meaning ascribed to them by the General
Corporation Law.
The name and the post office address, including street and
number, if any, and the city or county, of the resident agent of
the corporation within the State of Maryland, are c/o The
Corporation Trust Incorporated, 32 South Street, Baltimore,
Maryland 21202. The words "resident agent" as used herein shall
have the meaning ascribed to them by the General Corporation Law.
The said resident agent is a corporation of the State of Maryland.
FIFTH: (1) The total number of shares of stock
which the corporation has authority to issue is one hundred million
(100,000,000) all of which are of a par value of one dollar ($1.00)
each and are designated as Common Stock.
(2) The aggregate par value of all the authorized
shares of stock is one hundred million dollars ($100,000,000).
(3) The Board of Directors of the corporation is
authorized, from time to time, to fix the price or the minimum
price or the consideration or minimum consideration for, and to
issue the shares of stock of the corporation.
(4) The Board of Directors of the corporation is
authorized, from time to time, to classify or to reclassify, as the
case may be, any unissued shares of stock of the corporation.
(5) Notwithstanding any provision of the General
Corporation Law requiring a greater proportion than a majority of
the votes entitled to be cast in order to take or authorize any
action, any such action may be taken or authorized upon the
concurrence of at least a majority of the aggregate number of votes
entitled to be cast thereon.
(6) The corporation may issue shares of its Common
Stock in fractional denominations to the same extent as its whole
shares, and shares in fractional denominations shall be shares of
Common 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 this corporation.
(7) All shares of the Common Stock of the
corporation now or hereafter authorized shall be "subject to
redemption" and "redeemable," in the sense used in the general laws
of the State of Maryland authorizing the formation of corporations,
at the redemption or purchase price for any such shares, determined
in the manner set out in these Articles of Incorporation or in any
amendment thereto; provided, however, that the corporation shall
have the right, at its option, to refuse to redeem the shares of
stock at less than the par value thereof. In the absence of any
specification as to the purpose for which shares of the Common
Stock of the corporation are repurchased by it, all shares so
repurchased shall be deemed to be "purchased for retirement" in the
sense contemplated by the laws of the State of Maryland and the
number of the authorized shares of the Common Stock of the
corporation shall not be reduced by the number of any shares
repurchased by it.
(8) No holder of any of the shares of any class of
the corporation shall be entitled as of right to subscribe for,
purchase, or otherwise acquire any shares of any class of the
corporation which the corporation proposes to issue or any rights
or options which the corporation proposes to grant for the purchase
of shares of any class of the corporation or for the purchase of
any shares, bonds, securities, or obligations of the corporation
which are convertible into or exchangeable for, or which carry any
rights to subscribe for, purchase, or otherwise acquire shares of
any class of the corporation; and any and all of such shares,
bonds, securities or obligations of the corporation, whether now or
hereafter authorized or created, may be issued, or may be reissued
or transferred if the same have been reacquired and have treasury
status, and any and all of such rights and options may be granted
by the Board of Directors to such persons, firms, corporations and
associations, and for such lawful consideration, and on such terms,
as the Board of Directors in its discretion may determine, without
first offering the same, or any thereof, to any said holder.
SIXTH: (1) The number of directors of the
corporation, until such number shall be increased or decreased
pursuant to the by-laws of the corporation, is five. The number of
directors shall never less than the number prescribed by the
General Corporation Law.
(2) The names of the persons who shall act as
directors of the corporation until the first annual meeting or
until their successors are duly chosen and qualify are as follows:
John M. Fraser, Jr.
Martin Peretz
James F. Henry
Peter A. Vlachos
Kenneth J. Oberman
(3) The initial by-laws of the corporation shall be
adopted by the Board of Directors at their organization meeting or
by their informal written action, as the case may be. Thereafter,
the power to make, alter, and repeal the by-laws of the corporation
shall be vested in the Board of Directors of the corporation.
(4) Any determination made in good faith and, so
far as accounting matters are involved, in accordance with
generally accepted accounting principles by or pursuant to the
direction of the Board of Directors, as to the amount of the
assets, debts, obligations, or liabilities of the corporation, as
to the amount of any reserves or charges set up and the propriety
thereof, as to the time of or purpose for creating such reserves or
charges, as to the use, alteration or cancellation of any reserves
or charges (whether or not any debt, obligation or liability for
which such 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 or closing bid or asked
price of any investment owned or held by the corporation, as to the
market value of any investment or fair value of any other asset of
the corporation, as to the number of shares of the corporation
outstanding, as to the estimated expense to the corporation in
connection with purchases of its shares, as to the ability to
liquidate investments in orderly fashion, as to the extent to which
it is practicable to deliver a cross-section of the portfolio of
the corporation in payment for any such shares, or as to any other
matters relating to the issue, sale, purchase and/or other
acquisition or disposition of investments or shares of the
corporation, shall be final and conclusive, and shall be binding
upon the corporation and all holders of its shares, past, present
and future, and shares of the corporation are issued and sold on
the condition and understanding, evidenced by acceptance of
certificates for such shares, that any and all such determinations
shall be binding as aforesaid.
SEVENTH: (1) The corporation shall indemnify any
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 (other
than an action by or in the right of the corporation) by reason of
the fact that he is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other
enterprise. The indemnification shall be against expenses
(including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with the action, suit, or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit, or
preceding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(2) The corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other
enterprise. The indemnification shall be against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation;
except that no indemnification shall be made in respect of any
claim, issue, or matter as to which the person has been adjudged to
be liable for negligence or misconduct in the performance of his
duty to the corporation, unless and only to the extent that the
court in which the action or suit was brought, or a court of equity
in the county in which the corporation has its principal office,
determines upon application that, despite the adjudication of
liability but in view of all circumstances of the case, the person
is fairly and reasonably entitled to indemnity for the expenses
which the court shall deem proper.
(3) Unless otherwise expressly provided in these
Articles of Incorporation, to the extent that a director, officer,
employee, or agent of a corporation of the State has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsection (1) or (2), or in
defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or (2)
(unless order by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee, or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in subsection (1) or (2). The
determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not
parties to the action, suit, or proceeding, or (2) if a quorum is
not obtainable, or, even if obtainable a quorum or disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders in accordance with the charter
and by-laws of the corporation.
(5) Expenses (including attorneys' fees) incurred
in defending a civil or criminal action, suit or proceeding shall
be paid by the corporation in advance of the final disposition
thereof if authorized in the specific case by a preliminary
determination following one of the procedures set forth in the
second sentence of subsection (4) that there is a reasonable basis
for a belief that the director, officer, employee or agent met the
applicable standard of conduct set forth in subsection (1) or (2),
upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent reasonably assuring that such amount
will be repaid unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this
section.
(6) The indemnification provided by this section
shall not be deemed exclusive of any other rights to which a person
may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding the office, and shall continue as to a person who has
ceased to be a director, officer, employee, or agent and inure to
the benefit of the heirs, executors, and administrators of the
person.
(7) The corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against the liability under
the provisions of this section.
(8) For the purposes of this section, references to
"the corporation" include any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees or agents as well as the resulting or surviving
corporation; so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand
in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he would have
with respect to such a constituent corporation if its separate
existence had continued.
(9) Anything herein contained to the contrary
notwithstanding, no officer or director of the corporation shall be
indemnified for any liability to the registrant 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.
EIGHTH: Any holder of shares of Common Stock of the
corporation shall be entitled to require the corporation to
repurchase and the corporation shall be obligated to repurchase at
the option of such holder all or any part of the shares of Common
Stock of the corporation owned by said holder, at the repurchase
price, pursuant to the method, upon the terms and subject to the
conditions hereinafter set forth:
(a) Certificates for shares of Common Stock
shall be presented for repurchase in proper form for transfer to
the corporation or the agent of the corporation appointed for such
purpose, together with a written request that the corporation
repurchase all or any part of the shares represented thereby.
(b) The repurchase price per share shall be
the net asset value per share as determined by the corporation at
such time or times as the Board of Directors of the corporation
shall designate, but not later than as at the close of the New York
Stock Exchange on the Bank business day next succeeding the time of
presentation of certificates for shares, or an appropriate request
for repurchase where certificates for shares have not been issued,
or in accordance with any provision of the Investment Company Act
of 1940, any rule or regulation thereunder, or any rule or
regulation made or adopted by any securities association registered
under the Securities Exchange Act of 1934, as determined by the
Board of Directors of the corporation.
(c) Net asset value shall be determined by
dividing:
(i) The total value of the assets of the
corporation determined as provided in Section (d) below less, to
the extent determined by or pursuant to the direction of the Board
of Directors in accordance with generally accepted accounting
principles, all debts, obligations and liabilities of the
corporation (which debts, obligations and liabilities shall
include, without limitation of the generality of the foregoing, any
and all debts, obligations, liabilities, or claims, of any and
every kind and nature, fixed, accrued, unmatured or contingent,
including the estimated accrued expense of management and
supervision, and any reserves or charges for any or all of the
foregoing, whether for taxes, expenses, contingencies, or
otherwise, and the price of capital stock redeemed but not paid
for) but excluding the corporation's liability upon its shares and
its surplus, by:
(ii) The total number of shares of the
corporation outstanding. (Shares sold by the corporation whether
or not paid for shall be treated as outstanding and shares
purchased or redeemed by the corporation whether or not paid for
and treasury shares shall be treated as not outstanding, provided,
that the Board of Directors may determine whether shares sold or
redeemed on the date of computation shall be included.)
The Board of Directors is empowered, in its absolute
discretion, to establish other methods for determining such net
asset value whenever such other methods are deemed by it to be
necessary in order to enable the corporation to comply with, or are
deemed by it to be desirable provided they are not inconsistent
with, any provision of the Investment Company Act of 1940 or any
rule or regulation thereunder, including any rule or regulation
made or adopted pursuant to Section 22 of the Investment Company
Act of 1940 by the Securities and Exchange Commission or any
securities association registered under the Securities Exchange Act
of 1934.
(d) In determining for the purposes of this
Certificate of Incorporation the total value of the assets of the
corporation at any time, securities shall be taken at their market
value and all other assets at fair value, determined as follows:
(i) The market value of each security that
shall be listed or traded in on the New York Stock Exchange or the
American Stock Exchange shall be determined by the price of the
last reported sale of such security, ascertained by any method
which may be selected by or under the direction of the Board of
Directors, on either of said exchanges on the date as of which such
market value is being determined. In case there has been no such
sale of such security on such date, then such market value shall be
fixed by or pursuant to the authorization of the Board of
Directors, but at not less than the last bid price or more than the
last asked price, if any, on either of such exchanges for such
security on such date, so ascertained.
(ii) The market value of each security
that shall not be listed or traded in on the New York Stock
Exchange or the American Stock Exchange shall be determined by any
quotation or method approved by or pursuant to the direction of the
Board of Directors.
(iii) Dividends declared but not yet
received and rights in respect of securities quoted ex-dividend or
ex-rights shall be included at the fair value thereof as determined
by or pursuant to the direction of the Board of Directors, which
may, but need not be, the fair value so determined on the day the
particular securities are first quoted ex-dividend or ex-rights.
(iv) The fair value of any other assets of
the corporation (or the value of any of the assets mentioned in
paragraphs (i), (ii) or (iii) in situations not covered thereby or
in the event of the closing of the New York Stock Exchange or any
other happening determined by the Board of Directors in their
discretion to make other methods of valuation advisable) shall be
determined in accordance with generally accepted accounting
principles in such manner as may be approved from time to time by
or pursuant to the direction of the Board of Directors.
(v) The net price of capital stock
subscribed but not paid for shall be deemed to be an asset of the
corporation.
(e) Payment of the repurchase price by the
corporation may be made either in cash or in securities or other
assets at the time owned by the corporation or partly in cash and
partly in securities or other assets at the time owned by the
corporation. The value of any part of such payment to be made in
securities or other assets of the corporation shall be the value
employed in determining the repurchase price. Payment of the
repurchase price shall be made on or before the seventh day
following the day on which the shares are properly presented for
repurchase hereunder, except that delivery of any securities
included in any such payment shall be made as promptly as any
necessary transfers on the books of the issuers whose securities
are to be delivered may be made, and, except as postponement of the
date of payment may be permissible under the Investment Company Act
of 1940, and the Rules and Regulations thereunder.
The corporation, pursuant to resolution of the Board of
Directors, may deduct from the payment made for any shares
repurchased a liquidating charge not in excess of one per cent (1%)
of the repurchase price of the shares so repurchased, and the Board
of Directors may alter or suspend any such liquidating charge from
time to time.
(f) The right of any holder of shares of
Common Stock repurchased by the corporation as provided in this
Article EIGHTH to receive dividends or distributions thereon and
all other rights of such holder with respect to such shares shall
terminate at the time as of which the repurchase price of such
shares is determined, except the right of such holder to receive
(i) the repurchase price of such shares from the corporation in
accordance with the provisions hereof, and (ii) any dividend or
distribution to which such holder had previously become entitled as
the record holder of such shares on the record date for such
dividend or distribution.
(g) Repurchase of shares of Common Stock by the
corporation is conditional upon the corporation having funds or
property legally available therefor.
(h) The corporation, either directly or through
an agent, may repurchase its shares, out of funds legally available
therefor, upon such terms and conditions and for such consideration
as the Board of Directors shall deem advisable, by agreement with
the owner at a price not exceeding the net asset value per share as
determined by the corporation at such time or times as the Board of
Directors of the corporation shall designate, but not later than as
at the close of the New York Stock Exchange on the Bank business
day next succeeding the time when the purchase or contract to
purchase is made, and to take all other steps deemed necessary or
advisable in connection therewith, less a charge not to exceed one
per cent (1%) of such net asset value, if and as fixed by
resolution of the Board of Directors of the corporation from time
to time.
(i) The obligations set forth in this
Article EIGHTH may be suspended or postponed, (1) for any period
(a) during which the New York Stock Exchange is closed other than
customary week-end and holiday closings or (b) during which trading
on the New York Stock Exchange is restricted, (2) for any period
during which an emergency exists as a result of which (a) the
disposal by the corporation of investments owned by it is not
reasonably practicable or (b) it is not reasonably practicable for
the corporation fairly to determine the value of its net assets, or
(3) for such other periods as the Federal Securities and Exchange
Commission or any successor governmental authority may by order
permit for the protection of security holders of the corporation.
NINTH: From time to time any of the provisions of
these Articles of Incorporation may be amended, altered or
repealed, and other provisions authorized by the General
Corporation Law at the time in force may be added or inserted in
the manner and at the time prescribed by said Law, and all
contracts and rights at any time conferred upon the stockholders of
the corporation by these Articles of Incorporation are granted
subject to the provisions of this Article.
IN WITNESS WHEREOF, I have adopted and signed these Articles
of Incorporation and do hereby acknowledge that the adoption and
signing are my act:
Dated: January 23, 1974
/S/ DANIEL C. MACLEAN
Daniel C. Maclean, Incorporator
Amended: February 28, 1978
Amended: June 16, 1995
<PAGE>
PREMIER CAPITAL GROWTH FUND, INC.
The undersigned stockholder of Premier Capital Growth
Fund, Inc. hereby appoints Michael A. Rosenberg and Steven F.
Newman and each of them, the attorneys and proxies of the
undersigned, with full power of substitution, to vote, as
indicated herein, all of the shares of common stock of Premier
Capital Growth Fund, Inc. standing in the name of the
undersigned at the close of business on October 6, 1995 at a
Special Meeting of Stockholders to be held at the offices of The
Dreyfus Corporation, 200 Park Avenue, 7th Floor West, New York,
New York, at 10:00 a.m. on Wednesday, November 29, 1995, and at
any and all adjournments thereof, with all of the powers the
undersigned would possess if then and there personally present
and especially (but without limiting the general authorization
and power hereby given) to vote as indicated on the proposal, as
more fully described in the Proxy Statement for the meeting.
SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
DATED: , 1995
Signature(s) should be exactly as name or names
appearing on this proxy. If shares are held jointly, each
holder should sign. If signing is by attorney, executor,
administrator, trustee or guardian, please give full title.
Signature(s)
PLEASE INDICATE YOUR VOTE BY FILLING IN THE APPROPRIATE BOX
BELOW AS SHOWN, USING BLUE OR BLACK INK OR DARK PENCIL, DO NOT
USE RED INK.THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
AND WILL BE VOTED FOR THE PROPOSAL UNLESS OTHERWISE INDICATED.
FOR AGAINST ABSTAIN
To approve an Amendment and Restatement of the Fund's
Charter:In their discretion, the proxies are authorized to vote
upon such other business as may properly come before the
meeting, or any adjournment(s) thereof.
PLEASE SIGN AND DATE THE REVERSE SIDE OF CARD.
<PAGE>
IMPORTANT
No matter how many shares you own, please sign, date and
mail your proxy IMMEDIATELY.
To hold the meeting, a quorum of the shares eligible to vote is
required by law to be represented. Therefore, it is important
that you vote NOW so that your Fund will not have to bear the
unnecessary expense of another solicitation of proxies.
