As filed with the Securities and Exchange Commission on October ___, 1999
File No. 811-04611
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
Amendment No. 32
THE FIRST AUSTRALIA PRIME INCOME 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 of Directors by unanimous written consent effective August 27, 1999 are
filed herewith as Exhibit 2(b)(4).
Registrant's Amended and Restated Advisory Agreement, dated September
9, 1999, as adopted by Registrant's Board of Directors on September 9, 1999,
is filed herewith as Exhibit 2(g)(4).
Power of Attorney previously filed as Exhibit 2(s)(1) to Amendment No.
30 of Registrant's Registration Statement under the Investment Company Act of
1940, as filed with the Commission August 19, 1998.
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SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this Amendment No. 32 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 PRIME INCOME FUND, INC.
Brian M. Sherman
President*
By: \s\ Allan S. Mostoff
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Allan S. Mostoff
As Attorney-in-Fact
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* Pursuant to Power of Attorney previously filed.
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EXHIBIT INDEX
Exhibit No. Description
2(b)(4) Amended and Restated By-Laws
2(g)(4) Amended and Restated Advisory Agreement
THE FIRST AUSTRALIA PRIME INCOME 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... ....................................................1
Section 1. Place of Meeting.....................................1
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........................4
Section 8. Validity of Proxies, Ballots.........................5
Section 9. Conduct of Stockholders' Meetings....................5
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............................................11
Section 4. Vacancies and Newly Created Directorships...........12
Section 5. Removal.............................................13
Section 6. Place of Meeting....................................13
Section 7. Annual and Regular Meetings.........................13
Section 8. Special Meetings....................................14
Section 9. Waiver of Notice....................................14
Section 10. Quorum and Voting...................................14
Section 11. Action Without a Meeting............................15
Section 12. Compensation of Directors...........................15
ARTICLE IV COMMITTEES.........................................................15
Section 1. Organization........................................15
Section 2. Proceedings and Quorum..............................16
ARTICLE V OFFICERS............................................................16
Section 1. General.............................................16
Section 2. Election, Tenure and Qualifications.................16
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Section 3. Removal and Resignation.............................17
Section 4. President...........................................17
Section 5. Chairman............................................17
Section 6. Vice President......................................18
Section 7. Treasurer and Assistant Treasurers..................18
Section 8. Secretary and Assistant Secretaries.................18
Section 9. Subordinate Officers................................19
Section 10. Remuneration........................................19
Section 11. Surety Bonds........................................19
ARTICLE VI CAPITAL STOCK......................................................20
Section 1. Certificates of Stock...............................20
Section 2. Transfer of Shares..................................20
Section 3. Stock Ledgers.......................................21
Section 4. Transfer Agents and Registrars......................21
Section 5. Fixing of Record Date...............................21
Section 6. Lost, Stolen or Destroyed Certificates..............22
ARTICLE VII FISCAL YEAR AND ACCOUNTANT........................................22
Section 1. Fiscal Year.........................................22
Section 2. Accountant..........................................22
ARTICLE VIII CUSTODY OF SECURITIES............................................22
Section 1. Employment of a Custodian...........................22
Section 2. Termination of Custodian Agreement..................23
ARTICLE IX INDEMNIFICATION....................................................23
ARTICLE X AMENDMENTS..........................................................24
Section 1. General.............................................24
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BY-LAWS
OF
THE FIRST AUSTRALIA PRIME INCOME FUND, INC.
(A MARYLAND CORPORATION)
ARTICLE I
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NAME OF CORPORATION, LOCATION OF
OFFICES AND SEAL
----------------
Section 1. Name. The name of the Corporation is The First Australia Prime Income
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.
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
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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 stockholders may be called at
any time by the President 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 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.
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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 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.
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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
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
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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 the contrary from any one of
them. A proxy purporting to be executed by on or 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
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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 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
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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.
(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
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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 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
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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-seven 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 not interested persons of the
Corporation as defined in the Investment Company Act of 1940.
(a) Directors Elected by Common Stockholders. The Directors elected by
common stockholders 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,
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respectively. The Class I Directors to be originally elected for a
term expiring at the annual meeting held in 1989 for the 1988 fiscal
year. The Class II Directors to be originally elected for a term
expiring at the annual meeting held in 1990 for the 1989 fiscal year.
The Class III Directors to be originally elected for a term expiring
at the annual meeting held in 1991 for the 1990 fiscal year. After
expiration of the terms of office specified for such 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.
(b) Directors Elected by Preferred Stockholders. At any meeting of
stockholders of the Corporation at which Directors are to be elected,
the holders of preferred stock of all series, voting separately as a
single class, shall be entitled to elect two members of the Board of
Directors, and the holders of common stock, voting separately as a
single class, shall be entitled to elect the balance of the members of
the Board of Directors.
If at any time dividends on any outstanding preferred stock of
any series shall be unpaid in an amount equal to two full years'
dividends, the number of Directors constituting the Board of Directors
shall automatically be increased by the smallest number that, together
with the two Directors elected by the holders of preferred stock
pursuant to the preceding paragraph, will constitute a majority of
such increased number; and at a special meeting of stockholders, which
shall be called and held as soon as practicable, and at all subsequent
meetings at which Directors are to be elected, the holders of
preferred stock of all series voting
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separately as a single class shall be entitled to elect the smallest
number of additional Directors of the Corporation who, together with
the two Directors elected by the holders of preferred stock pursuant
to the preceding paragraph, will constitute a majority of the total
number of Directors of the Corporation so increased. The terms of
office of the persons who are Directors at the time of that election
shall continue. If the Corporation thereafter shall pay, or declare
and set apart for payment, in full all dividends payable on all
outstanding shares of preferred stock of all series for all past
dividend periods, the voting rights stated in this paragraph shall
cease, and the terms of office of all additional Directors elected by
the holders of preferred stock (but not of the Directors elected by
the holders of common stock or the two Directors regularly elected by
the holders of preferred stock) shall terminate automatically. At all
subsequent meetings of stockholders at which Directors are to be
elected, the holders of shares of preferred stock and of common stock
shall have the right to elect the members of the Board of Directors as
stated in the preceding paragraph, subject to the revesting of the
rights of the holders of the preferred stock as provided in the first
sentence of this paragraph in the event of any subsequent arrearage in
the payment of two full years' dividends on the shares of preferred
stock of any series.
Section 3. Election. At the first annual meeting of stockholders and at each
annual meeting thereafter, Directors to be elected by common stockholders and
Directors to be elected by preferred stockholders shall be elected by vote of
the holders of a majority of the shares of each respective class of stock
present in person or by proxy and entitled to vote thereon.
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Section 4. Vacancies and Newly Created Directorships.
(a) Directors Elected by Common Stockholders. Any vacancy in the
office of any Director elected by the holders of shares of common
stock may be filled solely by the remaining Directors (or
Director) so elected or, if not so filled, solely by the holders
of shares of common stock, at any meeting of stockholders held
for the election of such Directors.
(b) Directors Elected by Preferred Stockholders. Any vacancy in the
office of any Director elected by the holders of shares of
preferred stock may be filled solely by the remaining Directors
(or Director) so elected or, if not so filled, solely by the
holders of shares of preferred stock of all series, voting
separately as a single class, at any meeting of stockholders held
for the election of such Directors provided, however, if
preferred stock of any series is issued and, at the time of such
issuance, no existing Directors have been elected by preferred
stockholders, then a majority of the Corporation's Directors,
whether or not sufficient to constitute a quorum, may fill such
vacancy or vacancies.
(c) Notwithstanding the foregoing, the provisions in (a) and (b)
above, are contingent upon the condition that immediately after
filling any such vacancy, at least two-thirds (2/3) of the total
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 a majority of the total
Directors of the Corporation holding office at that time were
elected by the stockholders, a meeting of the stockholders shall
be held promptly
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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 of any class of stock may, by the
affirmative votes of the holders of a majority of the votes entitled to be cast
thereon, remove any Director or Directors of the class 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
notice of any change in the time or place of such meetings shall be communicated
promptly to each Director not
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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 the 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 Directors, unless the concurrence of a greater proportion is required
for such action by law, by the Charter or by these By-Laws.
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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 such 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 (other than as provided in
the next sentence), 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. If the Board of Directors has given general authorization for the
issuance of stock, a committee of the Board, in accordance with a general
formula or method specified by the Board by resolution or by adoption of a stock
option or other plan, may fix the terms of stock subject to classification or
reclassification and the terms on which
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any stock may be issued, including all terms and conditions required or
permitted to be established or authorized by the Board of Directors.
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
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OFFICERS
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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
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been elected and qualified. Any person may hold one or more offices of the
Corporation except the offices of President and Vice President.
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.
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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 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
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seal of the Corporation, and shall have charge of the records of the
Corporation, including the stock books and such other books and papers as the
Board of Directors may direct and such books, reports, certificates and other
documents required by law to be kept, all of which shall at all reasonable times
be open to inspection by any Director. He shall perform such other duties as
appertain to his office or as may be required by the Board of Directors.
Any Assistant Secretary may perform such duties of the Secretary as the
Secretary or the Board of Directors may assign, and, in the absence of the
Secretary, he may perform all the duties of the Secretary.
Section 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
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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 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
----------
CAPITAL STOCK
-------------
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.
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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 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).
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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 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
-----------
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
------------
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
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and similar investments owned by the Corporation. The Custodian (and any
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
----------
INDEMNIFICATION
---------------
The Corporation shall indemnify (a) its Directors and officers, whether
serving the Corporation or at its request any other entity, to the full extent
required or permitted by (i) the General Laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the procedures and
to the full extent permitted by law, and (ii) the Investment Company Act of
1940, as amended, and (b) other employees and agents to such extent as shall be
authorized by the Board of Directors and be permitted by law. The foregoing
rights of
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indemnification shall not be exclusive of any other rights to which
those seeking indemnification may be entitled. The Board of Directors may take
such action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law.
ARTICLE X
---------
AMENDMENTS
----------
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.
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AMENDED AND RESTATED
THE FIRST AUSTRALIA PRIME INCOME FUND, INC.
ADVISORY AGREEMENT
AGREEMENT executed this 9th day of September among The First Australia
Prime Income Fund, Inc. (the "Fund") a Maryland corporation registered under the
Investment Company Act of 1940 (the "1940 Act"), and EquitiLink International
Management Limited, a Jersey, Channel Islands corporation (the "Investment
Manager"), and EquitiLink Australia Limited, a New South Wales, Australia
corporation (the "Investment Adviser").
WHEREAS, the Fund is a closed-end management investment company;
WHEREAS, the Fund engages in the business of investing and reinvesting
its assets in the manner and in accordance with its stated investment objectives
and restrictions;
WHEREAS, the Fund has entered into a management agreement with the
Investment Manager dated February 1, 1990, as amended from time to time (the
"Management Agreement"), pursuant to which the Investment Manager will manage
the Fund's investments and will make investment decisions on behalf of the Fund
for which the Investment Manager will receive a monthly fee from the Fund as
specified in the Management Agreement;
WHEREAS, in connection with rendering the services required under the
Management Agreement, the Investment Manager is permitted to retain, at its
expense and in the manner set forth in the Management Agreement, investment
advisers to assist it in carrying out its obligations to the Fund under the
Management Agreement;
WHEREAS, the Investment Manager wishes to retain the Investment Adviser
to assist it in carrying out its obligations to the Fund under the Management
Agreement, and the Investment Adviser is willing to furnish such assistance to
the Investment Manager, in connection with the services specified below with
regard to the Fund; and
WHEREAS, the Fund hereby appoints the Investment Adviser to provide the
investment advisory services specified below with regard to the Fund, and the
Investment Adviser hereby accepts such appointment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Investment Adviser.
1.1 The Investment Adviser will make recommendations to the Investment
Manager as to specific portfolio securities to be purchased, retained or sold by
the Fund and will provide or obtain such research and statistical data as may be
necessary connection therewith. The Investment Adviser shall give the Investment
Manager (and the Fund) the benefit of the Investment Adviser's best judgment and
efforts in rendering services under this Agreement.
<PAGE>
1.2 The Investment Manager will pay the Investment Adviser a fee
computed at the annual rate of 0.25% of the Fund's average weekly net assets
applicable to the shares of common stock and shares of preferred stock up to
$1,200 million and 0.20% of such assets in excess of $1,200 million, computed
based upon net asset value applicable to shares of common stock and shares of
preferred stock at the end of each week and payable at the end of each calendar
month.
2. Expenses. The Investment Adviser shall bear all expenses of its
respective employees and overhead incurred in connection with its duties under
this Agreement and shall pay all salaries and fees of the Fund's directors and
officers who are interested persons (as defined in the 1940 Act) of the
Investment Adviser but who are not interested persons of the Investment Manager.
3. Liability. Neither the Investment Manager nor the Investment
Adviser shall be liable for any error of judgment or for any loss suffered by
the Fund in connection with the matters to which this Agreement relates, except
a loss resulting from a breach of fiduciary duty with respect to receipt of
compensation for services (in which case any award of damages shall be limited
to the period and the amount set forth in Section 36(b)(3) of the 1940 Act) or a
loss resulting from willful misfeasance, bad faith or gross negligence on the
part of the Investment Manager or the Investment Adviser, as appropriate, in the
performance of, or from reckless disregard by such party of such party's
obligations and duties under, this Agreement.
4. Services Not Exclusive. It is understood that the services of the
Investment Manager and the Investment Adviser are not deemed to be exclusive,
and nothing in this Agreement shall prevent the Investment Manager or the
Investment Adviser, or any affiliate of either of them, from providing similar
services to other investment companies and other clients (whether or not their
investment objectives and policies are similar to those of the Fund) or from
engaging in other activities. When other clients of the Investment Manager or
the Investment Adviser desire to purchase or sell a security at the same time
such security is purchased or sold for the Fund, such purchases and sales will
be allocated among the clients of each in a manner that is fair and equitable in
the judgment of the Investment Manager and the Investment Adviser in the
exercise of their fiduciary obligations to the Fund and to such other clients.
5. Duration and Termination. This Agreement is effective upon
shareholder approval thereof as required under the 1940 Act and shall continue
in effect until February 1, 1994. If not sooner terminated, this Agreement shall
continue in effect with respect to the Fund for successive periods of twelve
months thereafter, provided that each such continuance shall be specifically
approved annually by the vote of a majority of the Fund's Board of Directors who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval and either (a) the vote of majority of the outstanding
voting securities of the Fund, or (b) the vote of a majority of the Fund's
entire Board of Directors. Notwithstanding the foregoing, this Agreement may be
terminated with respect to the Fund at any time, without the payment of any
penalty, by a vote of a majority of the Fund's Board of Directors or a majority
of the outstanding voting securities of the Fund upon at least sixty (60) days'
written notice to the Investment Manager and the Investment Adviser, or by
either the Investment Manager or Investment Adviser upon at least
2
<PAGE>
ninety (90) days' written notice to the Fund and the other party but any such
termination shall not affect continuance of this Agreement as to the remaining
parties. This Agreement shall automatically terminate as to any party in the
event of its assignment (as defined in the 1940 Act).
6. Miscellaneous.
6.1 This Agreement shall be construed in accordance with the laws of
the State of New York, provided that nothing herein shall be construed as being
inconsistent with the 1940 Act and any rules, regulations and orders thereunder.
6.2 The captions in this Agreement are included for convenience only
and in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect.
6.3 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby and, to that extent, the provisions of this
Agreement shall be deemed to be severable.
6.4 Nothing herein shall be construed as constituting any party an
agent of the Fund or of any other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE FIRST AUSTRALIA PRIME INCOME
FUND, INC.
By: \s\ Brian M. Sherman
------------------------------------
Title: President
EQUITILINK INTERNATIONAL
MANAGEMENT LIMITED
By: \s\ David Manor
------------------------------------
Title: Director
EQUITILINK AUSTRALIA LIMITED
By: \s\ Barry Sechos
------------------------------------
Title: Director
3
