As filed with the Securities and Exchange Commission on October __, 1999
File No. 811-04438
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
Amendment No.12
THE FIRST AUSTRALIA FUND, INC.
Gateway Center 3
100 Mulberry Street
Newark, New Jersey 07102
Registrant's Telephone Number, including Area Code: (800) 451-6788
Sander M. Bieber, Esq.
Dechert Price & Rhoads
1775 Eye Street, N.W.
Washington, DC 20006
(202) 261-3308
(Name and Address of Agent for Service)
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Part C
Registrant's Amended and Restated By-Laws, as adopted by Registrant's
Board or Directors by unanimous written consent effective as of August 27, 1999,
are filed herewith as Exhibit 2(b)(2).
Power of Attorney filed herewith as Exhibit 2(s)(3).
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SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this Amendment No. 12 to its Registration Statement
under the Investment Company Act of 1940 to be signed on its behalf by the
undersigned thereunto duly authorized, in the District of Columbia, on the ___
day of October, 1999.
THE FIRST AUSTRALIA FUND, INC.
Brian M. Sherman
President
By:/s/ Sander M. Bieber
-----------------------
Sander M. Bieber
As Attorney-in-Fact
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EXHIBIT INDEX
Exhibit No. Description
2(b)(2) Amended and Restated By-Laws
2(s)(3) Power of Attorney
THE FIRST AUSTRALIA FUND, INC.
A Maryland Corporation
BY-LAWS
Amended and Restated
as of August 27, 1999
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TABLE OF CONTENTS
Page
ARTICLE I NAME OF CORPORATION, LOCATION OF OFFICES AND SEAL.......................................................1
Section 1. Name....................................................................................1
Section 2. Principal Offices.......................................................................1
Section 3. Seal....................................................................................1
ARTICLE II STOCKHOLDERS...........................................................................................2
Section 1. Place of Meeting........................................................................2
Section 2. Annual Meetings.........................................................................2
Section 3. Special Meetings........................................................................2
Section 4. Notice of Meetings......................................................................3
Section 5. Quorum; Adjournment of Meetings.........................................................3
Section 6. Voting and Inspector....................................................................4
Section 7. Stockholders Entitled to Vote...........................................................5
Section 8. Validity of Proxies, Ballots............................................................5
Section 9. Conduct of Stockholders' Meetings.......................................................6
Section 10. Action Without a Meeting................................................................6
Section 11. Stockholder Proposals...................................................................6
ARTICLE III BOARD OF DIRECTORS....................................................................................9
Section 1. Powers..................................................................................9
Section 2. Number and Term.........................................................................9
Section 3. Election...............................................................................10
Section 4. Vacancies and Newly Created Directorships..............................................10
Section 5. Removal................................................................................11
Section 6. Place of Meeting.......................................................................11
Section 7. Annual and Regular Meetings............................................................11
Section 8. Special Meetings.......................................................................12
Section 9. Waiver of Notice.......................................................................12
Section 10. Quorum and Voting......................................................................12
Section 11. Action Without a Meeting...............................................................13
Section 12. Compensation of Directors..............................................................13
ARTICLE IV COMMITTEES............................................................................................13
Section 1. Organization...........................................................................13
Section 2. Proceedings and Quorum.................................................................14
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ARTICLE V OFFICERS...............................................................................................14
Section 1. General................................................................................14
Section 2. Election, Tenure and Qualifications....................................................14
Section 3. Removal and Resignation................................................................15
Section 4. President..............................................................................15
Section 5. Chairman...............................................................................15
Section 6. Vice President.........................................................................15
Section 7. Treasurer and Assistant Treasurers.....................................................16
Section 8. Secretary and Assistant Secretaries....................................................16
Section 9. Subordinate Officers...................................................................17
Section 10. Remuneration...........................................................................17
Section 11. Surety Bonds...........................................................................17
ARTICLE VI CAPITAL STOCK.........................................................................................18
Section 1. Certificates of Stock..................................................................18
Section 2. Transfer of Shares.....................................................................18
Section 3. Stock Ledgers..........................................................................18
Section 4. Transfer Agents and Registrars.........................................................19
Section 5. Fixing of Record Date..................................................................19
Section 6. Lost, Stolen or Destroyed Certificates.................................................19
ARTICLE VII FISCAL YEAR AND ACCOUNTANT...........................................................................20
Section 1. Fiscal Year............................................................................20
Section 2. Accountant.............................................................................20
ARTICLE VIII CUSTODY OF SECURITIES...............................................................................20
Section 1. Employment of a Custodian..............................................................20
Section 2. Termination of Custodian Agreement.....................................................21
ARTICLE IX INMDEMNIFICATION......................................................................................21
Section 1. Indemnification of Officers, Directors, Employees and Agents...........................21
ARTICLE X AMENDMENTS.............................................................................................22
Section 1. General................................................................................22
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BY-LAWS
OF
THE FIRST AUSTRALIA FUND, INC.
(A MARYLAND CORPORATION)
ARTICLE I
NAME OF CORPORATION, LOCATION OF
OFFICES AND SEAL
--------------------------------
Section 1. Name. The name of the Corporation is The First Australia Fund, Inc.
Section 2. Principal Offices. The principal office of the Corporation in the
State of Maryland shall be located in Baltimore, Maryland. The Corporation may,
in addition, establish and maintain such other offices and places of business as
the Board of Directors may, from time to time, determine.
Section 3. Seal. The corporate seal of the Corporation shall be circular in form
and shall bear the name of the Corporation, the year of its incorporation, and
the word "Maryland." The form of the seal shall be subject to alteration by the
Board of Directors and the seal may be used by causing it or a facsimile to be
impressed or affixed or printed or otherwise reproduced. Any officer or Director
of the Corporation shall have authority to affix the corporate seal of the
Corporation to any document requiring the same.
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ARTICLE II
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STOCKHOLDERS
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Section 1. Place of Meeting. All meetings of the stockholders shall be held at
the principal office of the Corporation in the State of Maryland or at such
other place within the United States as may from time to time be designated by
the Board of Directors and stated in the notice of such meeting.
Section 2. Annual Meetings. An annual meeting of stockholders for election of
Directors and the transaction of such other business as may properly come before
the meeting shall be held at such time and place within the United States as the
Board of Directors, or any duly constituted committee of the Board, shall select
between February 25th and March 25th; provided, however, that the date to be
selected for the annual meeting to be held in 1991 shall be between April 2nd
and May 3rd; provided, further, that the date to be selected for the annual
meeting to be held in 1998 shall be between April 25th and May 25th; and
provided, further, that the date to be selected for the annual meeting to be
held in 1999 shall be between March 25th and April 25th.
Section 3. Special Meetings. Special meetings of the stockholders may be called
at any time by the Secretary or a majority of the Board of Directors and shall
be held at such time and place as may be stated in the notice of the meeting.
Special meetings of the stockholders shall be called by the Secretary upon
receipt of the written request of the holders of shares entitled to not less
than a majority of all the votes entitled to be cast at such meeting, provided
that (1) the information specified in Article II, Section 11 is given; and (2)
the stockholders requesting such meeting shall have paid to the Corporation the
reasonably estimated cost of preparing and mailing the notice thereof, which the
Secretary shall
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determine and specify to such stockholders. No special meeting shall be called
upon the request of stockholders to consider any matter which is substantially
the same as a matter voted upon at any special meeting of the stockholders held
during the preceding 12 months, unless requested by the holders of a majority of
all shares entitled to be voted at such meeting.
Section 4. Notice of Meetings. The Secretary shall cause written or printed
notice of the place, date and hour, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, to be given, not less than
10 and not more than 90 days before the date of the meeting, to each stockholder
entitled to vote at, or entitled to notice of, such meeting by leaving the same
with such stockholder or at such stockholder's residence or usual place of
business or by mailing it, postage prepaid, and addressed to such stockholder at
his address as it appears on the records of the Corporation at the time of such
mailing. If mailed, notice shall be deemed to be given when deposited in the
United States mail addressed to the stockholder as aforesaid. Notice of any
stockholders' meeting need not be given to any stockholder who shall sign a
written waiver of such notice either before or after the time of such meeting,
which waiver shall be filed with the records of such meeting, or to any
stockholder who is present at such meeting in person or by proxy. Notice of
adjournment of a stockholders' meeting to another time or place need not be
given if such time and place are announced at the meeting.
Section 5. Quorum; Adjournment of Meetings. The presence at any stockholders'
meeting, in person or by proxy, of stockholders entitled to cast a majority of
all votes entitled to be cast constitutes a quorum for the transaction of
business. In the absence of a quorum, the holders of a majority of shares
entitled to vote at the meeting and present in person or by proxy, or, if no
stockholder entitled to vote is present in person or by proxy, any officer
present entitled
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to preside or act as Secretary of such meeting may adjourn the meeting without
determining the date of the new meeting or from time to time without further
notice to a date not more than 120 days after the original record date. Any
business that might have been transacted at the meeting originally called may be
transacted at any such adjourned meeting at which a quorum is present.
Section 6. Voting and Inspector. Unless otherwise provided by the Charter, at
each stockholders' meeting, each stockholder entitled to vote thereat shall be
entitled to one vote for each share of stock of the Corporation validly issued
and outstanding and standing in his name on the books of the Corporation on the
record date fixed in accordance with Section 5 of Article VI hereof (and each
stockholder of record holding fractional shares, if any, shall have
proportionate voting rights). Stockholders may vote their shares owned of record
either in person or by proxy appointed by instrument in writing subscribed by
such stockholder or his duly authorized attorney. Unless a proxy otherwise
provides, it is not valid for more than eleven months after its date. Except as
otherwise specifically provided in the Charter or these By-Laws or as required
by provisions of the Investment Company Act of 1940, as amended from time to
time, all matters shall be decided by a vote of the majority of all votes
validly cast at a meeting at which a quorum is present. The vote upon any
question shall be by ballot whenever requested by any person entitled to vote,
but, unless such a request is made, voting may be conducted in any way approved
by the meeting.
At any election of Directors, the Chairman of the meeting may, and upon the
request of the holders of ten percent (10%) of the stock entitled to vote at
such election shall, appoint one inspector of election who shall first subscribe
an oath or affirmation to execute faithfully the duties of inspector at such
election with strict impartiality and according to the best of his ability, and
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shall after the election make a certificate of the result of the vote taken. No
candidate for the office of Director shall be appointed such Inspector.
Section 7. Stockholders Entitled to Vote. If the Board of Directors sets a
record date for the determination of stockholders entitled to notice of or to
vote at any stockholders' meeting in accordance with Section 5 of Article VI
hereof, each stockholder of the Corporation shall be entitled to vote, in person
or by proxy, each share of stock standing in his name on the books of the
Corporation on such record date. If no record date has been fixed, the record
date for the determination of stockholders entitled to notice of or to vote at a
meeting of stockholders shall be the later of the close of business on the day
on which notice of the meeting is mailed or the thirtieth day before the
meeting, or, if notice is waived by all stockholders, at the close of business
on the tenth day next preceding the day on which the meeting is held.
Section 8. Validity of Proxies, Ballots. The right to vote by proxy shall exist
only if the instrument authorizing such proxy to act shall have been signed by
the stockholder or by his duly authorized attorney. Unless a proxy provides
otherwise, it shall not be valid more than eleven months after its date. At
every meeting of the stockholders, all proxies shall be received and taken in
charge of and all ballots shall be received and canvassed by the Secretary of
the Corporation or the person acting as Secretary of the meeting before being
voted, who shall decide all questions touching the qualification of voters, the
validity of the proxies and the acceptance or rejection of votes, unless an
inspector of election has been appointed by the Chairman of the meeting in which
event such inspector of election shall decide all such questions. A proxy with
respect to stock held in the name of two or more persons shall be valid if
executed by one of them unless at or prior to exercise of such proxy the
Corporation receives a specific written notice to
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the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid unless challenged at or prior to
its exercise.
Section 9. Conduct of Stockholders' Meetings. The meetings of the stockholders
shall be presided over by the President, or if he is not present, by the
Chairman, or if he is not present, by any Vice President, or if none of them is
present, then by any other officer of the Corporation appointed by the President
to act on his behalf shall preside over the meeting. The Secretary of the
Corporation, if present, shall act as a Secretary of such meeting, or if he is
not present, an Assistant Secretary shall so act; if neither the Secretary nor
any Assistant Secretary is present, then any such person appointed by the
Secretary to act on his behalf shall act as the Secretary of such meeting.
Section 10. Action Without a Meeting. Any action to be taken by stockholders may
be taken without a meeting if (1) all stockholders entitled to vote on the
matter consent to the action in writing, (2) all stockholders entitled to notice
of the meeting but not entitled to vote at it sign a written waiver of any right
to dissent and (3) said consents and waivers are filed with the records of the
meetings of stockholders. Such consent shall be treated for all purposes as a
vote at the meeting.
Section 11. Stockholder Proposals.
(a) No business proposed by a stockholder to be considered at an annual
meeting of stockholders shall be considered by the stockholders at that meeting
unless no less than 90 days nor more than 120 days prior to the first
anniversary date ("anniversary date") of the annual meeting for the preceding
year, or, with respect to annual meetings not scheduled to be held within a
period that commences 30 days before the anniversary date and ends 30 days after
the
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anniversary date, by the later of the close of business on the date 90 days
prior to such meeting or 14 days following the date such meeting is first
publicly announced or disclosed, the Secretary of the Corporation receives a
written notice from the stockholder proposing a business matter to be considered
at an annual meeting that sets forth the information required by Section 11(c)
of this Article II.
(b) No business matter shall be considered at a special meeting of
stockholders unless such matter is specifically listed as a purpose of the
special meeting and listed as a matter proposed to be acted on at the special
meeting pursuant to the Corporation's notice of meeting.
(i) In the event a special meeting is called at the request of
stockholders, pursuant to Section 3 of this Article II, the written request
shall be delivered to the Secretary of the Corporation, and shall state the
business proposed by stockholders to be the purpose of the meeting and the
matters proposed to be acted upon, and shall set forth the information
required by Section 11(c) of this Article II.
(ii) In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any stockholder may nominate a person or persons (as the case
may be) for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder delivers a written notice to the
Secretary of the Corporation, which shall set forth the information
required by Section 11(c) of this Article II, not later than the close of
business 21 days following the day on which the date of the special meeting
and the nominees proposed by the Board of Directors to be elected at such
meeting are publicly announced or disclosed.
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(c) The written notice or written request to the Secretary of the
Corporation, required to be provided pursuant to Section 11(a) or 11(b) of this
Article II, shall include the following information: (1) the nature of the
proposed business with reasonable particularity, including the exact text of any
proposal to be presented for adoption, and the reasons for conducting that
business at the meeting of stockholders, (2) with respect to each such
stockholder, that stockholder's name and address (as they appear on the records
of the Corporation), business address and telephone number, residence address
and telephone number, and the number of shares of each class of stock of the
Corporation beneficially owned by that stockholder, (3) any interest of the
stockholder in the proposed business, (4) the name or names of each person
nominated by the stockholder to be elected or reelected as a director, if any,
and (5) with respect to each nominee, that nominee's name, business address and
telephone number, and residence address and telephone number, the number of
shares, if any, of each class of stock of the Corporation owned directly and
beneficially by that nominee, and all information relating to that nominee that
is required to be disclosed in solicitations of proxies for elections of
directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended ("Exchange Act") (or any provisions
of law subsequently replacing Regulation 14A), together with a notarized letter
signed by the nominee stating his or her acceptance of the nomination by that
stockholder, stating his or her intention to serve as director if elected, and
consenting to being named as a nominee for director in any proxy statement
relating to such election.
(d) The chairman of the annual or special meeting shall determine whether
notice of matters proposed to be brought before a meeting has been duly given in
the manner provided by this Section 11. If the facts warrant, the chairman shall
declare to the meeting that business has
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not been properly brought before the meeting in accordance with the provisions
of this Section 11, and, it, therefore, shall not be considered or transacted.
(e) The requirement of the Corporation to include in the Corporation's
proxy statement a stockholder proposal shall be governed by Rule 14a-8 under the
Exchange Act (or any provisions of law subsequently replacing Rule 14a-8) ("Rule
14a-8"). Accordingly, the deadline for including a stockholder proposal in the
Corporation's proxy statement shall be governed by Rule 14a-8.
(f) The adjournment of an annual or special meeting, or any announcement
thereof, shall not commence a new period for the giving of notice as provided in
this Section 11.
(g) For purposes of this Section 11, a meeting date shall be deemed to have
been "publicly announced or disclosed" if such date is disclosed in a press
release disseminated by the Corporation to a national news service or contained
in a document publicly filed by the Corporation with the Securities and Exchange
Commission.
ARTICLE III
-----------
BOARD OF DIRECTORS
------------------
Section 1. Powers. Except as otherwise provided by law, by the Charter or by
these By-Laws, the business and affairs of the Corporation shall be managed
under the direction of, and all the powers of the Corporation shall be exercised
by or under authority of, its Board of Directors.
Section 2. Number and Term. The Board of Directors shall consist of not fewer
than three, nor more than twenty Directors, as specified by resolution of the
majority of the entire Board of Directors, provided that at least 40% of the
entire Board of Directors shall be persons who are
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not interested persons of the Corporation as defined in the Investment Company
Act of 1940. The Directors shall be divided into three classes, as nearly equal
in number as possible, and shall be designated as Class I, Class II, and Class
III Directors, respectively. The Class I Directors to be originally elected for
a term expiring at the 1988 annual meeting. The Class II Directors to be
originally elected for a term expiring at the 1989 annual stockholders' meeting.
The Class III Directors to be originally elected for a term expiring at the 1990
annual stockholders' meeting. After expiration of the terms of office specified
for the Directors, the Directors of each class shall serve for terms of three
(3) years, or, when filling a vacancy, for the unexpired portion of such term
and until their successors are elected and have qualified.
Section 3. Election. At the first annual meeting of stockholders and at each
annual meeting thereafter, Directors shall be elected by vote of the holders of
a majority of the shares present in person or by proxy and entitled to vote
thereon.
Section 4. Vacancies and Newly Created Directorships. If any vacancies shall
occur in the Board of Directors (i) by reason of death, resignation, removal or
otherwise, the remaining Directors shall continue to act, and such vacancies (if
not previously filled by the stockholders) may be filled by a majority of the
remaining Directors, although less than a quorum, and (ii) by reason of an
increase in the authorized number of Directors, such vacancies (if not
previously filled by the stockholders) may be filled only by a majority vote of
the entire Board of Directors; provided, however, that immediately after filling
any such vacancy, at least two-thirds (2/3) of the Directors then holding office
shall have been elected to such office by the stockholders of the Corporation.
In the event that at any time, other than the time preceding the first annual
stockholders' meeting, less than majority of the Directors of the Corporation
holding office at that
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time were elected by the stockholders, a meeting of the stockholders shall be
held promptly and in any event within 60 days for the purpose of electing
Directors to fill any existing vacancies in the Board of Directors unless the
Securities and Exchange Commission shall by order extend such period.
Section 5. Removal. At any meeting of stockholders duly called and at which a
quorum is present, the stockholders may, by the affirmative votes of the holders
of a majority of the votes entitled to be cast thereon, remove any Director or
Directors from office, with or without cause, and may elect a successor or
successors to fill any resulting vacancies for the unexpired terms of the
removed Directors.
Section 6. Place of Meeting. The Directors may hold their meetings, have one or
more offices, and keep the books of the Corporation, outside the State of
Maryland, and within or without the United States of America, at any office or
offices of the Corporation or at any other place as they may from time to time
by resolution determine, or in the case of meetings, as they may from time to
time by resolution determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof; provided, however, that Board meetings
shall not be held in Australia.
Section 7. Annual and Regular Meetings. The annual meeting of the Board of
Directors for choosing officers and transacting other proper business shall be
held immediately after the annual stockholders' meeting at the place of such
meeting or at such other time and place as the Board may determine. The Board of
Directors from time to time may provide by resolution for the holding of regular
meetings and fix their time and place as the Board of Directors may determine.
Notice of such annual and regular meetings need not be in writing, provided that
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notice of any change in the time or place of such meetings shall be communicated
promptly to each Director not present at the meeting at which such change was
made in the manner provided in Section 8 of this Article III for notice of
special meetings. Members of the Board of Directors or any committee designated
thereby may participate in a meeting of such Board or committee by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
Section 8. Special Meetings. Special meetings of the Board of Directors may be
held at any time or place and for any purpose when called by the President, the
Secretary or two or more of the Directors. Notice of special meetings, stating
the time and place, shall be communicated to each Director personally by
telephone or transmitted to him by telegraph, telefax, telex, cable or wireless
at least one day before the meeting.
Section 9. Waiver of Notice. No notice of any meeting of the Board of Directors
or a committee of the Board need be given to any Director who is present at the
meeting or who waives notice of such meeting in writing (which waiver shall be
filed with the records of such meeting), either before or after meeting.
Section 10. Quorum and Voting. At all meetings of the Board of Directors, the
presence of a majority of the number of Directors then in office shall
constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of the Directors present may adjourn the meeting, from time to time,
until a quorum shall be present. The action of a majority of the Directors
present at a meeting at which a quorum is present shall be the action of the
Board of
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Directors, unless the concurrence of a greater proportion is required for such
action by law, by the Charter or by these By-Laws.
Section 11. Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if a written consent to such action is signed by all
members of the Board or of any committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 12. Compensation of Directors. Directors shall be entitled to receive
such compensation from the Corporation for their services as may from time to
time be determined by resolution of the Board of Directors.
ARTICLE IV
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COMMITTEES
----------
Section 1. Organization. By resolution adopted by the Board of Directors, the
Board may designate one or more committees, including an Executive Committee,
composed of two or more Directors. The Chairmen of such committees shall be
elected by the Board of Directors. The Board of Directors shall have the power
at any time to change the members of such committees and to fill vacancies in
the committees. The Board may delegate to these committees any of its powers,
except the power to authorize the issuance of stock, declare a dividend or
distribution on stock, recommend to stockholders any action requiring
stockholder approval, amend these By-Laws, or approve any merger or share
exchange which does not require stockholder approval.
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Section 2. Proceedings and Quorum. In the absence of an appropriate resolution
of the Board of Directors, each committee, consistent with law, may adopt such
rules and regulations governing its proceedings, quorum and manner of acting as
it shall deem proper and desirable. In the event any member of any committee is
absent from any meeting, the members thereof present at the meeting, whether or
not they constitute a quorum, may appoint a member of the Board of Directors to
act in the place of such absent member.
ARTICLE V
---------
OFFICERS
--------
Section 1. General. The officers of the Corporation shall be a President (who
shall be a Director), a Chairman (who shall be a Director), a Secretary and a
Treasurer, and may include one or more Vice Presidents, Assistant Secretaries or
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 9 of this Article.
Section 2. Election, Tenure and Qualifications. The officers of the Corporation,
except those appointed as provided in Section 9 of this Article V, shall be
elected by the Board of Directors at its first meeting or such meetings as shall
be held prior to its first annual meeting, and thereafter annually at its annual
meeting. If any officers are not chosen at any annual meeting, such officers may
be chosen at any subsequent regular or special meeting of the Board. Except as
otherwise provided in this Article V, each officer chosen by the Board of
Directors shall hold office until the next annual meeting of the Board of
Directors and until his successor shall have been elected and qualified. Any
person may hold one or more offices of the Corporation except the offices of
President and Vice President.
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Section 3. Removal and Resignation. Whenever in the judgment of the Board of
Directors the best interest of the Corporation will be served thereby, any
officer may be removed from office by the vote of a majority of the members of
the Board of Directors given at a regular meeting or any special meeting called
for such purpose. Any officer may resign his office at any time by delivering a
written resignation to the Board of Directors, the President, the Secretary, or
any Assistant Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
Section 4. President. The President shall be the chief executive officer of the
Corporation and he shall preside at all stockholders' meetings. Subject to the
supervision of the Board of Directors, he shall have general charge of the
business, affairs and property of the Corporation and general supervision over
its officers, employees and agents. Except as the Board of Directors may
otherwise order, he may sign in the name and on behalf of the Corporation all
deeds, bonds, contracts, or agreements. He shall exercise such other powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
Section 5. Chairman. The Chairman shall be the Chairman of the Board of
Directors and shall preside at all Directors' meetings. Except as the Board of
Directors may otherwise order, he may sign in the name and on behalf of the
Corporation all deeds, bonds, contracts, or agreements. He shall exercise such
other powers and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
Section 6. Vice President. The Board of Directors may from time to time elect
one or more Vice Presidents who shall have such powers and perform such duties
as from time to time may be assigned to them by the Board of Directors or the
President. At the request or in the absence or
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disability of the President, the Vice President (or, if there are two or more
Vice Presidents, then the senior of the Vice Presidents present and able to act)
may perform all the duties of the President and, when so acting, shall have all
the powers of and be subject to all the restrictions upon the President.
Section 7. Treasurer and Assistant Treasurers. The Treasurer shall be the
principal financial and accounting officer of the Corporation and shall have
general charge of the finances and books of account of the Corporation. Except
as otherwise provided by the Board of Directors, he shall have general
supervision of the funds and property of the Corporation and of the performance
by the Custodian of its duties with respect thereto. He shall render to the
Board of Directors, whenever directed by the Board, an account of the financial
condition of the Corporation and of all his transactions as Treasurer; and as
soon as possible after the close of each fiscal year he shall make and submit to
the Board of Directors a like report for such fiscal year. He shall perform all
acts incidental to the Office of Treasurer, subject to the control of the Board
of Directors.
Any Assistant Treasurer may perform such duties of the Treasurer as the
Treasurer or the Board of Directors may assign, and, in the absence of the
Treasurer, he may perform all the duties of the Treasurer.
Section 8. Secretary and Assistant Secretaries. The Secretary shall attend to
the giving and serving of all notices of the Corporation and shall record all
proceedings of the meetings of the stockholders and Directors in books to be
kept for that purpose. He shall keep in safe custody the seal of the
Corporation, and shall have charge of the records of the Corporation, including
the stock books and such other books and papers as the Board of Directors may
direct and such
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books, reports, certificates and other documents required by law to be kept, all
of which shall at all reasonable times be open to inspection by any Director. He
shall perform such other duties as appertain to his office or as may be required
by the Board of Directors.
Any Assistant Secretary may perform such duties of the Secretary as the
Secretary or the Board of Directors may assign, and, in the absence of the
Secretary, he may perform all the duties of the Secretary.
Section 9. Subordinate Officers. The Board of Directors from time to time may
appoint such other officers or agents as it may deem advisable, each of whom
shall have such title, hold office for such period, have such authority and
perform such duties as the Board of Directors may determine. The Board of
Directors from time to time may delegate to one or more officers or agents the
power to appoint any such subordinate officers or agents and to prescribe their
respective rights, terms of office, authorities and duties.
Section 10. Remuneration. The salaries or other compensation of the officers of
the Corporation shall be fixed from time to time by resolution of the Board of
Directors, except that the Board of Directors may by resolution delegate to any
person or group of persons the power to fix the salaries or other compensation
of any subordinate officers or agents appointed in accordance with the
provisions of Section 9 of this Article V.
Section 11. Surety Bonds. The Board of Directors may require any officer or
agent of the Corporation to execute a bond (including, without limitation, any
bond required by the Investment Company Act of 1940, as amended, and the rules
and regulations of the Securities and Exchange Commission) to the Corporation in
such sum and with such surety or sureties as the Board of Directors may
determine, conditioned upon the faithful performance of his duties to the
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Corporation, including responsibility for negligence and for the accounting of
any of the Corporation's property, funds or securities that may come into his
hands.
ARTICLE VI
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CAPITAL STOCK
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Section 1. Certificates of Stock. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. No certificate shall
be valid unless it is signed by the President or a Vice President and
countersigned by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and sealed with its seal, or bears the
facsimile signatures of such officers and a facsimile of such seal.
Section 2. Transfer of Shares. Shares of the Corporation shall be transferable
on the books of the Corporation by the holder thereof in person or by his duly
authorized attorney or legal representative upon surrender and cancellation of a
certificate or certificates for the same number of shares of the same class,
duly endorsed or accompanied by proper instruments of assignment and transfer,
with such proof of the authenticity of the signature as the Corporation or its
agents may reasonably require. The shares of stock of the Corporation may be
freely transferred, and the Board of Directors may, from time to time, adopt
rules and regulations with reference to the method of transfer of the shares of
stock of the Corporation.
Section 3. Stock Ledgers. The stock ledgers of the Corporation, containing the
names and addresses of the stockholders and the number of shares held by them
respectively, shall be kept at
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the principal offices of the Corporation or, if the Corporation employs a
transfer agent, at the offices of the transfer agent of the Corporation.
Section 4. Transfer Agents and Registrars. The Board of Directors may from time
to time appoint or remove transfer agents and/or registrars of transfers of
shares of stock of the Corporation, and it may appoint the same person as both
transfer agent and registrar. Upon any such appointment being made all
certificates representing shares of capital stock thereafter issued shall be
countersigned by one of such transfer agents or by one of such registrars of
transfers or by both and shall not be valid unless so countersigned. If the same
person shall be both transfer agent and registrar, only one countersignature by
such person shall be required.
Section 5. Fixing of Record Date. The Board of Directors may fix in advance a
date as a record date for the determination of the stockholders entitled to
notice of, or to vote at, any stockholders' meeting or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or to
receive payment of any dividend or other distribution or to be allotted any
other rights, or for the purpose of any other lawful action, provided that (1)
such record date shall not exceed 90 days preceding the date on which the
particular action requiring such determination will be taken; (2) the transfer
books shall remain open regardless of the fixing of a record date; (3) in the
case of a meeting of stockholders, the record date shall be at least 10 days
before the date of the meeting; and (4) in the event a dividend or other
distribution is declared, the record date for stockholders entitled to a
dividend or distribution shall be at least 10 days after the date on which the
dividend is declared (declaration date).
Section 6. Lost, Stolen or Destroyed Certificates. Before issuing a new
certificate for stock of the Corporation alleged to have been lost, stolen or
destroyed, the Board of Directors or
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any officer authorized by the Board may, in its discretion, require the owner of
the lost, stolen or destroyed certificate (or his legal representative) to give
the Corporation a bond or other indemnity, in such form and in such amount as
the Board or any such officer may direct and with such surety or sureties as may
be satisfactory to the Board or any such officer, sufficient to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
ARTICLE VII
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FISCAL YEAR AND ACCOUNTANT
--------------------------
Section 1. Fiscal Year. The fiscal year of the Corporation shall, unless
otherwise ordered by the Board of Directors, be twelve calendar months ending on
the 31st day of October.
Section 2. Accountant. The Corporation shall employ an independent public
accountant or a firm of independent public accountants as its Accountants to
examine the accounts of the Corporation and to sign and certify financial
statements filed by the Corporation. The employment of the Accountant shall be
conditioned upon the right of the Corporation to terminate the employment
forthwith without any penalty by vote of a majority of the outstanding voting
securities at any stockholders' meeting called for that purpose.
ARTICLE VIII
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CUSTODY OF SECURITIES
---------------------
Section 1. Employment of a Custodian. The Corporation shall place and at all
times maintain in the custody of a Custodian (including any sub-custodian for
the Custodian) all funds, securities and similar investments owned by the
Corporation. The Custodian (and any
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sub-custodian) shall be a bank or trust company of good standing having a
capital, surplus and undivided profits aggregating not less than fifty million
dollars ($50,000,000) or such other financial institution as shall be permitted
by rule or order of the United States Securities and Exchange Commission. The
Custodian shall be appointed from time to time by the Board of Directors, which
shall fix its remuneration.
Section 2. Termination of Custodian Agreement. Upon termination of the agreement
for services with the Custodian or inability of the Custodian to continue to
serve, the Board of Directors shall promptly appoint a successor Custodian, but
in the event that no successor Custodian can be found who has the required
qualifications and is willing to serve, the Board of Directors shall call as
promptly as possible a special meeting of the stockholders to determine whether
the Corporation shall function without a Custodian or shall be liquidated. If so
directed by vote of the holders of a majority of the outstanding shares of stock
of the Corporation, the Custodian shall deliver and pay over all property of the
Corporation held by it as specified in such vote.
ARTICLE IX
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INDEMNIFICATION
---------------
Section 1. Indemnification of Officers, Directors, Employees and Agents. The
Corporation shall indemnify each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
("Proceeding"), 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
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venture, trust or other enterprise, against all judgments, penalties, fines,
settlements and reasonable expenses, including attorneys' fees, actually
incurred by him in connection with such Proceeding and the amount of every such
judgment, penalty, fine, settlement and reasonable expense so incurred by such
person shall be paid by the Corporation or, if paid by such person, reimbursed
to such person by the Corporation to the fullest extent permitted by law,
subject only to the conditions and limitations imposed by the applicable
provisions of Section 2-418 of the Corporations and Associations Article of the
Annotated Code of the State of Maryland as amended from time to time and by the
applicable provisions of Section 17(h) of the United States Investment Company
Act of 1940 as amended from time to time and as interpreted and as required to
be implemented by the Securities and Exchange Commission in Release No. IC-11330
of September 4, 1980 or any subsequent interpretation of such Commission.
Subject to such conditions and limitations, the Corporation shall pay or
reimburse, in advance of the final disposition of a proceeding, the reasonable
expenses incurred by each Director, officer, employee or agent who is a party to
a Proceeding upon receipt by the Corporation of (a) a written affirmation by
such person of such person's good faith belief that the standard of conduct
necessary for indemnification by the Corporation has been met, and (b) a written
undertaking by or on behalf of such person to repay the amount if it shall
ultimately be determined that such standard of conduct has not been met.
ARTICLE X
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AMENDMENTS
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Section 1. General. Except as provided in the next succeeding sentence, all
By-Laws of the Corporation, whether adopted by the Board of Directors or the
stockholders, shall be subject to amendment, alteration or repeal, and new
By-Laws may be made by the affirmative vote of a majority of either: (a) the
holders of record of the outstanding shares of stock of the Corporation entitled
to vote, at any annual or special meeting, the notice or waiver of notice of
which shall have specified or summarized the proposed amendment, alteration,
repeal or new By-Law; or (b) the Directors, at any regular or special meeting
the notice or waiver of notice of which shall have specified or summarized the
proposed amendment, alteration, repeal or new By-Law. The provisions of Article
III, Section 2 of the By-Laws shall be subject to amendment, alterations or
repeal by the affirmative vote of either: (i) the holders of record of 75% of
each class of the outstanding shares of stock of the Corporation entitled to
vote, at any annual or special meeting, the notice or waiver of notice of which
shall have specified or summarized the proposed amendment, alteration or repeal;
or (ii) 75% of the Directors, at a regular or special meeting the notice or
waiver of notice of which shall have specified or summarized the proposed
amendment, alteration or repeal.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes
and appoints Margaret A. Bancroft, Allan S. Mostoff, Sander M. Bieber, Jennifer
O. Epstein and Michael J. Andersen and each of them, as his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for such attorney-in-fact in such attorney-in-fact's name, place and stead, to
sign any and all registration statements applicable to The First Australia Fund,
Inc. (the "Fund"), and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person in his capacity as a Director or Officer of
the Fund, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Signature Title Date
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Brian M. Sherman President September 28, 1999
