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SIGNATURE GARY LEVINE
TITLE TREASURER
Sub-Item 77C: Matters submitted to a vote of security holders
At Registrant's Annual Meeting of Shareholders held on January 21, 2000,
the following proposals were voted upon:
The proposal to replace two fundamental policies which restrict the
making of loans, with one policy which prohibits personal loans or loans
to persons who control the Company or who are under common control with
the Company passed, as 3,943,100 shares voted for, 341,151 shares voted
against, 214,290 shares abstaining and 678,342 shares were broker
non-votes.
The proposal to delete the fundamental policy that limits the
Company's investment in warrants to under 5% of its total assets and
under 2% of its assets in unlisted warrants passed, as 3,896,340 shares
voted for, 389,090 shares voted against, 213,111 abstaining and 678,342
shares were broker non-votes.
The proposal to delete the clause that limits investment in
securities issued by one issuer to under 10% of its outstanding voting
securities, and retain the balance of the fundamental policy which
limits the purchase of securities of companies which have less than
three years continuous operations to 5% of total assets passed, as
3,918,653 shares voted for, 358,747 shares voted against, 221,141
abstaining and 678,342 shares were broker non-votes.
The proposal to replace the fundamental policy that prohibits the
purchase or sale of real estate and interests in real estate limited
partnerships and securities issued by real estate investment trusts
with one which, while prohibiting direct investment in real estate,
allows investment in real estate-related securities passed, as
3,906,381 shares voted for, 368,634 shares voted against, 223,526
abstaining and 678,342 shares were broker non-votes.
The proposal to change the fundamental policy that prohibits
investment in oil, gas or other mineral exploration or development
programs to a non-fundamental policy that, while prohibiting direct
investment in such programs, allows the Company to invest in issuers
that engage in transactions involving such exploration or
development programs passed, as 3,927,493 shares voted for, 363,190
shares voted against, 207,858 shares abstaining and 678,342 shares
were broker non-votes.
The proposal to amend the Articles of Incorporation that would give
shareholders the right to tender their shares during the current
fiscal year did not pass, as 1,509,045 shares voted for, 2,627,874
shares voted against, 361,622 shares abstaining and 678,342 shares
were broker non-votes.
Sub-Item 77Q1: Exhibit A
NOMINATING AND ADMINISTRATION COMMITTEE CHARTER
Nominating and Administration Committee Membership
The Nominating and Administration Committee shall be composed entirely of
independent directors.
Board Nominations and Functions
1. The Committee shall make nominations for independent director
membership on the Board of Directors. The Committee shall evaluate
candidates' qualifications for Board membership and their independence
from the Funds' investment adviser and other principal service providers.
Persons selected must be independent in terms of both the letter and the
spirit of the Investment Company Act of 1940. The Committee shall also
consider the effect of any relationships beyond those delineated in the
1940 Act that might impair independence, e.g., business, financial or
family relationships with managers or service providers. If members of
the Committee do not unanimously agree to nominate an incumbent
independent director for re-election to the Board of Directors, the
Committee shall submit the issue of nomination of such person for
re-election to the independent directors as a group.
2. The Committee shall periodically review Board governance procedures
and shall recommend any appropriate changes to the full Board of
Directors.
3. The Committee shall periodically review the composition of the Board
of Directors to determine whether it may be appropriate to add
individuals with different backgrounds or skill sets from those already
on the Board.
4. The Committee shall periodically review director compensation and
shall recommend any appropriate changes to the independent directors
as a group.
Committee Nominations and Functions
1. The Committee shall make nominations for membership on all
committees and shall review committee assignments at least annually.
2. The Committee shall review as necessary the responsibilities of any
committees of the Board, whether there is a continuing need for each
committee, whether there is a need for additional committees of the
Board, and whether committees should be combined or reorganized.
The Committee shall make recommendations for any such action to the
full Board.
Other Powers and Responsibilities
1. The Committee shall monitor the performance of legal counsel employed
by the Funds and the independent directors, and shall be responsible for
the supervision of counsel for the independent directors.
2. The Committee shall have the resources and authority appropriate to
discharge its responsibilities, including authority to retain special
counsel and other experts or consultants at the expense of the
appropriate Fund(s).
3. The Committee shall review this Charter at least annually and
recommend any changes to the full Board of Directors.
AUDIT COMMITTEE CHARTER
1. The Audit Committee shall be composed entirely of independent
directors.
2. The purposes of the Audit Committee are:
(a) to oversee the Funds' accounting and financial reporting
policies and practices, its internal controls and, as appropriate, the
internal controls of certain service providers;
(b) to oversee the quality and objectivity of the Funds' financial
statements and the independent audit thereof; and
(c) to act as a liaison between the Funds' independent auditors and the
full Board of Directors.
The function of the Audit Committee is oversight; it is management's
responsibility to maintain appropriate systems for accounting and
internal control, and the auditor's responsibility to plan and carry
out a proper audit.
3. To carry out its purposes, the Audit Committee shall have the
following duties and powers:
(a) to recommend the selection, retention or termination of auditors
and, in connection therewith, to evaluate the independence of the
auditors, including whether the auditors provide any consulting
services to the manager, and to receive the auditors' specific
representations as to their independence;
(b) to meet with the Funds' independent auditors, including private meetings,
as necessary (i) to review the arrangements for and scope of the annual
audit and any special audits; (ii) to discuss any matters of concern
relating to the Funds' financial statements, including any adjustments to
such statements recommended by the auditors, or other results of said
audit(s); (iii) to consider the auditors' comments with respect to the
Funds' financial policies, procedures and internal accounting controls and
management's responses thereto; and (iv) to review the form of opinion the
auditors propose to render to the Board and shareholders;
(c) to consider the effect upon the Funds of any changes in accounting
principles or practices proposed by management or the auditors;
(d) to review the fees charged by the auditors for audit and non-audit
services;
(e) to investigate improprieties or suspected improprieties in fund
operations; and
(f) to report its activities to the full Board on a regular basis and to
make such recommendations with respect to the above and other matters as
the Committee may deem necessary or appropriate.
4. The Committee shall meet on a regular basis and is empowered to hold
special meetings as circumstances require.
5. The Committee shall regularly meet with the Treasurer of the Funds.
6. The Committee shall have the resources and authority appropriate to
discharge its responsibilities, including the authority to retain special
counsel and other experts or consultants at the expense of the appropriate
Fund(s).
7. The Committee shall review this Charter at least annually and recommend
any changes to the full Board of Directors.
Sub-Item 77Q1: Exhibit B
SECOND AMENDED AND RESTATED BYLAWS OF ELLSWORTH CONVERTIBLE
GROWTH AND INCOME FUND, INC.
(Adopted Effective January 21, 2000)
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the
Corporation shall be in the City of Baltimore, State of
Maryland.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State
of Maryland as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings. Annual meetings of stockholders
shall be held on such day during the month of January and at
such time as shall be designated by the Board of Directors and
stated in the notice of the meeting, at which stockholders
shall elect a Board of Directors and transact such other
business as may properly be brought before the meeting.
Section 2. Special Meetings. Special meetings of the
stockholders, unless otherwise provided by law or by the
Corporation's Charter, may be called for any purpose or
purposes by a majority of the Board of Directors or the
President, and shall be called by the President or Secretary on
the written request of the stockholders entitled to cast at
least 50% of the votes entitled to be cast at the special
meeting. Such request shall state the purpose or purposes of
the proposed meeting and the matters proposed to be acted on at
it. The Secretary shall inform such stockholders of the
reasonably estimated cost of preparing and making notice of the
meeting and, upon payment to the Corporation by such
stockholders of such costs, the Secretary shall give notice to
each stockholder entitled to notice of the meeting.
Section 3. Place of Meetings. The annual meeting and any
special meeting of the stockholders shall be held at such place
in or out of the State of Maryland as the Board of Directors
may from time to time determine and set forth in the notice of
the meeting.
Section 4. Notice of Meetings, Waiver of Notice, Stockholder
List. Notice of the place, date and time of the holding of
each annual and special meeting of the stockholders and, if the
meeting is a special meeting or notice of the meeting is
required by statute, the purpose or purposes shall be given
personally, by telex, by mail or by electronic mail or any
other electronic means, not less than ten (10) nor more than
ninety (90) days before the date of such meeting, to each
stockholder entitled to notice of the meeting. Notice by mail
shall be deemed to be duly given when deposited in the United
States mail addressed to the stockholder at his or her address
as it appears on the records of the Corporation, with postage
thereon prepaid. Notice by electronic mail shall be deemed to
be duly given when sent to any electronic mail address of the
stockholder. The notice of every meeting of stockholders may
be accompanied by a form of proxy approved by the Board of
Directors in favor of such actions or persons as the Board of
Directors may select.
Notice of any meeting of stockholders shall be deemed waived by
any stockholder who shall attend such meeting in person or by
proxy or who shall, either before or after the meeting, submit
a signed waiver of notice which is filed with the records of
the meeting. A meeting of stockholders convened on the date
for which it was called may be adjourned from time to time
without further notice to a date not more than 120 days after
the original record date.
At least five (5) days prior to each meeting of stockholders,
the officer or agent having charge of the share transfer books
of the Corporation shall make a complete list of stockholders
entitled to vote at such meeting, in alphabetical order with
the address of and the number of shares held by each
stockholder.
Section 5. Quorum. At any meeting of stockholders the
presence in person or by proxy of stockholders entitled to cast
a majority of the votes thereat shall constitute a quorum, but
this section shall not affect any requirement under the statute
or under the Charter of the Corporation for the vote necessary
for the adoption of any measure. If, however, such quorum
shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as
originally notified. When a quorum is once present to organize
a meeting, it is not broken by the subsequent withdrawal of any
stockholders.
Section 6. Voting. Except as otherwise provided by
statute or the Charter of the Corporation, each holder of
record of shares of stock of the Corporation having voting
power shall be entitled at each meeting of the stockholders to
one vote for every share of such stock standing in his or her
name on the record of stockholders of the Corporation as of the
record date determined pursuant to Section 4 of Article VI of
these Bylaws or if such record date shall not have been so
fixed, then at the later of (i) the close of business on the
day on which notice of the meeting is mailed or (ii) the
thirtieth day before the meeting. All voting rights for the
election of Directors are non-cumulative.
Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for
him or her by a proxy signed by such stockholder or his or her
duly authorized attorney-in-fact. Signing may be accomplished
by the stockholder or the stockholder's authorized attorney-in-
fact signing the proxy or causing the stockholder's signature
to be affixed to the proxy by any reasonable means, including
facsimile signature. A stockholder also may duly authorize
another person to act as proxy by transmitting, or authorizing
the transmission of, a telegram, cablegram, datagram,
electronic mail or any other electronic or telephonic means to
the person authorized to act as proxy or to a proxy
solicitation firm, proxy support service organization or other
person authorized by the person who will act as proxy to
receive the transmission. No proxy shall be valid after the
expiration of eleven months from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the person executing it, except in
those cases where such proxy is permitted by law to be
irrevocable and where an irrevocable proxy is coupled with an
interest. Except as otherwise provided by statute, the Charter
of the Corporation or these Bylaws, any corporate action to be
taken by vote of the stockholders, except with respect to the
election of Directors, shall be authorized by a majority of the
total votes cast at a meeting of stockholders at which a quorum
is present by the holders of shares present in person or
represented by proxy and entitled to vote on such action.
Action to be taken by vote of the stockholders with respect to
the election of Directors shall be authorized by a plurality.
If a vote shall be taken on any question other than the
election of Directors, which shall be by written ballot, then
unless required by statute or these Bylaws, or determined by
the chairman of the meeting to be advisable, any such vote need
not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his or her proxy, if
there be such proxy, and shall state the number of shares
voted.
Section 7. Inspectors. The Board may, in advance of any
meeting of stockholders, appoint one or more inspectors to act
at such meeting or any adjournment thereof. If the inspectors
shall not be so appointed or if any of them shall fail to
appear or act, the chairman of the meeting may, and on the
request of any stockholder entitled to vote at the meeting
shall, appoint inspectors. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector at such
meeting with strict impartiality and according to the best of
his or her ability. The inspectors shall determine the number
of shares outstanding and the voting power of each, the number
of shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive
votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents, determine
the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request
of the chairman of the meeting or any stockholder entitled to
vote at it, the inspectors shall make a report in writing of
any challenge, request or matter determined by them and shall
execute a certificate or any fact found by them. The report of
the inspector on the number of votes represented at the meeting
and the result of the voting shall be prima facie evidence
thereof. No Director or candidate for the office of Director
shall act as inspector of an election of Directors. Inspectors
need not be stockholders.
Section 8. Nominations and Proposals by Stockholders.
(a) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders (i) pursuant to
the Corporation's notice of meeting, (ii) by or at the
direction of the Board of Directors or (iii) by any stockholder
of the Corporation who was a stockholder of record both at the
time of giving of notice provided for in this Section 8(a) and
at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set
forth in this Section 8(a).
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of paragraph (a)(1) of this Section 8,
the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation and such other
business must otherwise be a proper matter for action by
stockholders. To be timely, a stockholder's notice shall be
delivered to the secretary at the principal executive offices
of the Corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date or if the
Corporation has not previously held an annual meeting, notice
by the stockholder to be timely must be so delivered not
earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on
the later of the 90th day prior to such annual meeting or the
tenth day following the day on which public announcement of the
date of such meeting is first made by the Corporation. In no
event shall the public announcement of a postponement or
adjournment of an annual meeting to a later date or time
commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set
forth (i) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") (including such person's
written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to
any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such
business of such stockholder and of the beneficial owner, if
any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made, (x) the
name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (y) the
number of shares of each class of stock of the Corporation
which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (a)(2) of this Section 8 to the contrary,
in the event that the number of directors to be elected to the
Board of Directors is increased and there is no public
announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice
required by this Section 8(a) shall also be considered timely,
but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the secretary at
the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day
on which such public announcement is first made by the
Corporation.
(b) Special Meetings of Stockholders. Only such
business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to
be elected (i) pursuant to the Corporation's notice of meeting,
(ii) by or at the direction of the Board of Directors or (iii)
provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any
stockholder of the Corporation who is a stockholder of record
both at the time of giving of notice provided for in this
Section 8(b) and at the time of the special meeting, who is
entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 8(b). 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 such stockholder may nominate a person or
persons (as the case may be) for election to such position as
specified in the Corporation's notice of meeting, if the
stockholder's notice containing the information required by
paragraph (a)(2) of this Section 8 shall be delivered to the
secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior
to such special meeting and not later than the close of
business on the later of the 90th day prior to such special
meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public
announcement of a postponement or adjournment of a special
meeting to a later date or time commence a new time period for
the giving of a stockholder's notice as described above.
(c) General. (1) Only such persons who are nominated
in accordance with the procedures set forth in this Section 8
shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the
procedures set forth in this Section 8. The chairman of the
meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this Section 8 and, if any
proposed nomination or business is not in compliance with this
Section 8, to declare that such nomination or proposal shall be
disregarded.
(2) For purposes of this Section 8, "public
announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of
this Section 8, a stockholder shall also comply with all
applicable requirements of state law and of the Exchange Act
and the rules and regulations thereunder with respect to the
matters set forth in this Section 8. Nothing in this Section 8
shall be deemed to affect any rights of stockholders to request
inclusion of proposals in, nor any rights of the Corporation to
omit a proposal from, the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
Section 9. Consent of Stockholders in Lieu of Meeting.
Except as otherwise provided by statute or the Charter of the
Corporation, any action required or permitted to be taken at
any meeting of stockholders may be taken without a meeting, if
the following are filed with the records of stockholders'
meetings: (i) a unanimous written consent which sets forth such
action, and is signed by each stockholder entitled to vote on
the matter and (ii) a written waiver of any right to dissent is
signed by each stockholder entitled to notice of the meeting
but not entitled to vote at it.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. Except as otherwise provided
in the Charter of the Corporation, the business and affairs of
the Corporation shall be managed under the direction of the
Board of Directors. All powers of the Corporation may be
exercised by or under authority of the Board of Directors
except as conferred on or reserved to the stockholders by law
or by the Charter of the Corporation or these Bylaws.
Section 2. Number of Directors. The number of Directors
shall be fixed from time to time by resolution of the Board of
Directors adopted by a majority of the Directors then in
office; provided, however, that the number of Directors shall
in no event be less than three (except for any period during
which shares of the Corporation are held by fewer than three
stockholders). Any vacancy created by an increase in Directors
may be filled in accordance with Section 8 of this Article III.
No reduction in the number of Directors shall have the effect
of removing any Director from office prior to the expiration of
his or her term unless such Director is specifically removed
pursuant to Section 7 of this Article III at the time of such
decrease. Until the first annual meeting of stockholders or
until successors are duly elected and qualify, the Board shall
consist of the persons named as such in the Charter of the
Corporation. Unless the Board of Directors adopts a policy
that provides otherwise, Directors need not be stockholders.
Section 3. First Meeting of Directors. The first
meeting of each newly elected Board of Directors shall be held
immediately following and at the same place as the annual
meeting of stockholders and no notice of such meeting shall be
necessary to the newly elected Directors in order legally to
constitute the meeting, provided a quorum shall be present. In
the event such meeting is not held at the said time and place,
the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in
a written waiver signed by all of the Directors.
Section 4. Election and Term of Directors. At the first
annual meeting of stockholders and at each annual meeting
thereafter, the stockholders shall elect Directors to hold
office. For purposes of this Article III, a potential Director
will not be deemed to be qualified to serve as a Director
unless, after giving effect to his or her election to the Board
of Directors, at least two-thirds of the Board of Directors
would be Independent Directors, as defined in Section 5 below.
The Directors shall be classified, with respect to the time for
which they severally hold office, into three classes, with the
Directors in each class to hold office until their successors
are elected and qualified, or until their death, or until they
shall have resigned, or have been removed as hereinafter
provided in these Bylaws, or as otherwise provided by statute
or the Charter of the Corporation. At each annual meeting of
the stockholders of the Corporation, the successors to the
class of Directors whose terms expire at that meeting shall be
elected to hold office for terms expiring at the later of the
annual meeting of stockholders held in the third year following
the year of their election or the election and qualification of
the successors to such class of Directors. Directors elected
at an annual meeting of stockholders to fill a vacancy in a
class of Directors whose terms do not expire at such annual
meeting shall be elected to hold office for terms expiring at
the later of the annual meeting of stockholders as of which the
terms of such class expire or the election and qualification of
the successors to such class of Directors.
Section 5. Independent Directors. For purposes of these
Bylaws, a Director shall be deemed to be an "Independent
Director" if he or she: (i) is not an "interested person" of
the Corporation within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations
promulgated thereunder and (ii) is not a former officer or
director of the Corporation's investment adviser or its
subsidiary.
Section 6. Resignation. A Director of the Corporation
may resign at any time by giving written notice of his or her
resignation to the Board or the Chairman of the Board or the
President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it
shall become effective shall not be specified therein,
immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 7. Removal of Directors. A Director of the
Corporation may be removed, only as provided in the Charter of
the Corporation or, if the Charter of the Corporation does not
so provide, then only as provided by the Maryland General
Corporation Law.
Section 8. Vacancies. The stockholders may elect a
successor to fill a vacancy on the Board of Directors which
results from a removal of a Director pursuant to Section 7 of
Article III of these Bylaws. A majority of the remaining
Directors, whether or not sufficient to constitute a quorum,
may fill a vacancy which results from any cause except an
increase in the number of Directors, and a majority of the
entire Board of Directors may fill a vacancy which results from
an increase in the number of Directors; provided, that: (i) the
Independent Director requirements specified in Section 4 above
are satisfied, and (ii) after the filling of said vacancy or
vacancies, at least two-thirds of the Directors then holding
office shall have been elected by the stockholders of the
Corporation. In the event that at any time there is a vacancy
in any office of a Director which vacancy may not be filled by
the remaining Directors, a special meeting of the stockholders
shall be held as promptly as possible and in any event within
sixty days, for the purpose of filling said vacancy or
vacancies. Further, if at any time fewer than two-thirds of
the Directors are Independent Directors, the Board of Directors
shall, at the next regularly scheduled meeting or any special
meeting, consider electing additional Independent Directors to
the Board. A Director elected by the Board of Directors to
fill a vacancy serves until the next annual meeting of
stockholders and until his or her successor is elected and
qualifies. A Director elected by the stockholders to fill a
vacancy which results from the removal of a Director serves for
the balance of the term of the removed Director.
Section 9. Regular Meetings. Regular meetings of the
Board may be held without notice at such times and places in or
out of the State of Maryland as shall from time to time be
determined by the Board of Directors.
Section 10. Special Meetings. Special meetings of the
Board may be called by the Chairman of the Board, the
President, or by a majority of the Directors either in writing
or by vote at a meeting, and may be held at any place in or out
of the State of Maryland as the Board may from time to time
determine.
Section 11. Notice of Special Meetings. Notice of each
special meeting of the Board shall be given by the Secretary as
hereinafter provided, in which notice shall be stated the time
and place of the meeting. Notice of each such meeting shall be
delivered to each Director, either personally or by telephone,
facsimile, telegraph, telex, cable or wireless, at least
twenty-four hours before the time at which such meeting is to
be held, or by first-class mail, postage prepaid, addressed to
him or her at his or her residence or usual place of business,
at least three days before the day on which such meeting is to
be held.
Section 12. Waiver of Notice of Special Meetings. Notice
of any special meeting need not be given to any Director who
shall, either before or after the meeting, sign a written
waiver of notice which is filed with the records of the meeting
or who shall attend such meeting. Except as otherwise
specifically required by these Bylaws, a notice or waiver of
notice of any meeting need not state the purposes of such
meeting.
Section 13. Quorum and Voting. A majority of the entire
Board of Directors shall be present in person at any meeting of
the Board in order to constitute a quorum for the transaction
of business at such meeting, and except as otherwise expressly
required by statute, the Charter of the Corporation, these
Bylaws, the Investment Company Act of 1940, as amended, or
other applicable statute. The act of a majority of the
Directors present at any meeting at which a quorum is present
shall be the act of the Board; provided, however, that the
approval of any contract with an investment adviser or
principal underwriter, as such terms are defined in the
Investment Company Act of 1940, as amended, which the
Corporation enters into or any renewal or amendment thereof,
the approval of the fidelity bond required by the Investment
Company Act of 1940, as amended, and the selection of the
Corporation's independent public accountants shall each require
the affirmative vote of a majority of the Directors who are
Independent Directors. If a quorum shall not be present at any
meeting of Directors, the Directors present thereat may by a
majority vote of the Directors present adjourn the meeting from
time to time, without notice other than announcement at the
meeting, until a quorum shall be present. At any adjourned
meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as
originally called.
Section 14. Written Consent of Directors in Lieu of a
Meeting. Except to the extent otherwise specifically
prohibited by applicable law, 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 all members
of the Board or committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board or committee.
Section 15. Meeting by Conference Telephone. Members of
the Board of Directors, or any committee of the Board of
Directors, may participate in a meeting by means of a
conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the
same time. Participation in a meeting by these means
constitutes presence in person at a meeting, except as
otherwise provided by statute
Section 16. Compensation. The Directors may be paid
their expenses, if any, of attendance at each meeting of the
Board of Directors. A Director may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a
stated salary as Director, or both such fixed sum and stated
salary. No such payment shall preclude any Director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings
Section 17. Investment Policies. It shall be the duty of
the Board of Directors to ensure that the purchase, sale,
retention and disposal of portfolio securities and the other
investment practices of the Corporation are at all times
consistent with the investment policies and restrictions with
respect to securities investments and otherwise of the
Corporation. The Board, however, may delegate the duty of
management of the assets and the administration of its day-to-
day operations to an individual or corporate management company
or investment adviser pursuant to a written contract or
contracts which have obtained the requisite approvals,
including the requisite approvals or renewals thereof, of the
Board of Directors or the stockholders of the Corporation in
accordance with the provisions of the Investment Company Act of
1940, as amended.
Section 18. Use of Assets by Independent Directors.
The Independent Directors of the Corporation, as defined in
Section 5 above, or a committee of Independent Directors, may
use the assets of the Corporation to retain experts, including
legal counsel other than regular legal counsel to the
Corporation and the Independent Directors, when they deem it
necessary to further the interests of the Corporation's
stockholders.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. The Board may, by
resolution adopted by a majority of the entire Board, designate
an Executive Committee consisting of one or more of the
Directors of the Corporation, which committee shall have and
may exercise all the powers and authority of the Board with
respect to all matters other than as set forth in Section 3 of
this Article.
Section 2. Other Committees of the Board. The Board of
Directors may from time to time, by resolution adopted by a
majority of the whole Board, designate one or more other
committees of the Board, each such committee to consist of one
or more Directors and to have such powers and duties as the
Board of Directors may, by resolution, prescribe.
Section 3. Limitation of Committee Powers. No committee
of the Board shall have power or authority to:
(a) recommend to stockholders any action requiring
authorization of stockholders pursuant to statute or the
Charter of the Corporation;
(b) approve or terminate any contract with an
investment adviser or principal underwriter, as such terms are
defined in the Investment Company Act of 1940, as amended, or
take any other action required to be taken by the Board of
Directors by the Investment Company Act of 1940, as amended;
(c) amend or repeal these Bylaws or adopt new Bylaws;
(d) declare dividends or other distributions or issue
capital stock of the Corporation; or
(e) approve any merger or share exchange which does not
require stockholder approval.
Section 4. General. A majority of the members of any
committee shall be present in person at any meeting of such
committee in order to constitute a quorum for the transaction
of business at such meeting, and the act of a majority present
shall be the act of such committee; any member of any committee
shall be deemed to be present in person if such member
participates in the meeting by conference telephone or similar
communications equipment if all persons participating in the
meeting can hear each other at the same time. The Board may
designate a chairman of any committee and such chairman or any
two members of any committee may fix the time and place of its
meetings unless the Board shall otherwise provide. In the
absence of disqualification of any member or any committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they
constitute a quorum, may appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. The Board shall have the power at any
time to change the membership of any committee, to fill all
vacancies, to designate alternate members, to replace any
absent or disqualified member, or to dissolve any such
committee. All committees shall keep written minutes of their
proceedings and shall report such minutes to the Board. All
such proceedings shall be subject to revision or alteration by
the Board; provided, however, that third parties shall not be
affected by any such revision or alteration.
ARTICLE V
OFFICERS, AGENTS AND EMPLOYEES
Section 1. Number and Qualifications. The Officers of
the Corporation shall be a Chairman of the Board, a President,
a Secretary and a Treasurer, each of whom shall be elected by
the Board of Directors. None of the officers, except the
Chairman of the Board and the President, need be members of the
Board of Directors. The Board of Directors may elect or
appoint one or more Vice Presidents and may also appoint such
other officers, agents and employees as it may deem necessary
or proper. Any two or more offices may be held by the same
person, except the offices of President and Vice President, but
no officer shall execute, acknowledge or verify any instrument
in more than one capacity. Such officers shall be elected by
the Board of Directors each year at its first meeting held
after the annual meeting of stockholders, each to hold office
until the meeting of the Board following the next annual
meeting of the stockholders and until his or her successor
shall have been duly elected and shall have qualified, or until
his or her death, or until he or she shall have resigned, or
have been removed, as hereinafter provided in these Bylaws.
The Board may from time to time elect or appoint or delegate to
the Chairman of the Board or the President the power to appoint
such officers (including one or more Assistant Vice Presidents,
one or more Assistant Treasurers and one or more Assistant
Secretaries), and such agents, as may be necessary or desirable
for the business of the Corporation. Such other officers and
agents shall have such duties and shall hold their offices for
such terms as may be prescribed by the Board or by the
appointing authority.
Section 2. Resignations. Any officer of the Corporation
may resign at any time by giving written notice of his or her
resignation to the Board, the Chairman of the Board, the
President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it
shall become effective shall not be specified therein
immediately upon its receipt; unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3. Removal of Officer, Agent or Employee. Any
officer, agent or employee of the Corporation may be removed by
the Board of Directors if in its judgment it finds that the
best interests of the Corporation will be served. The Board
may delegate such power of removal as to agents and employees
not elected or appointed by the Board of Directors. Such
removal shall be without prejudice to such person's contract
rights, if any, but the appointment of any person as an
officer, agent or employee of the Corporation shall not of
itself create contract rights.
Section 4. Vacancies. A vacancy in any office, whether
arising from death, resignation, removal or any other cause,
may be filled for the unexpired portion of the term of the
office which shall be vacant, in the manner prescribed in these
Bylaws for the regular election or appointment to such office.
Section 5. Compensation. The compensation of the
officers of the Corporation shall be fixed by the Board of
Directors, but this power may be delegated to any committee or
to any officer in respect of other officers under his or her
control. No officer shall be precluded from receiving such
compensation by reason of the fact that he or she is also a
Director of the Corporation.
Section 6. Bonds or other Security. If required by the
Board, any officer, agent or employee of the Corporation shall
give a bond or other security for the faithful performance of
his or her duties, in such amount and with such surety or
sureties as the Board may require.
Section 7. Chairman of the Board. The Chairman of the
Board shall be the chief executive officer of the Corporation
and shall have the general and active management of the
business of the Corporation and general and active supervision
and direction over the other officers, agents and employees and
shall see that their duties are properly performed. He or she
shall, if present, preside at each meeting of the stockholders
and the Board and shall be an ex officio member of all
committees of the Board. He or she shall perform all duties
incident to the office of Chairman of the Board and chief
executive officer and such other duties as may from time to
time be assigned to him or her by the Board. In the case of
the absence of the President or his or her inability to act,
the Chairman of the Board shall perform 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. He or
she shall perform all duties incident to the office of
President and such other duties as from time to time may be
assigned to him or her by the Board or these Bylaws.
Section 8. President. The President shall be the chief
administrative officer of the Corporation and shall have
general and active supervision and direction over the business
and affairs of the Corporation and over its several officers,
subject, however, to the direction of the Chairman of the Board
and the control of the Board. At the request of the Chairman
of the Board, or in the case of his or her absence or inability
to act, the President shall perform the duties of the Chairman
of the Board and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the Chairman of
the Board.
Section 9. Vice Presidents. In the absence of the
President or in the event of his or her refusal to act, and if
a Vice President has been appointed by the Board of Directors,
the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Directors, or in the absence of any designation, then in the
order of their election) shall perform 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. Each
Vice President shall perform such other duties as from time to
time may be assigned to him or her by the Board, the Chairman
of the Board or the President.
Section 10. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for,
all the funds and securities of the Corporation, except those
which the Corporation has placed in the custody of a bank or
trust company or member of a national securities exchange (as
that term is defined in the Securities Exchange Act of 1934)
pursuant to a written agreement designating such bank or trust
company or member of a national securities exchange as
custodian of the property of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation except that
such functions may be delegated to the custodian of the
property of the Corporation pursuant to a written agreement;
(c) cause all moneys and other valuables to be
deposited to the credit of the Corporation;
(d) receive, and give receipts for, moneys due and
payable to the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise
the investment of its funds as ordered or authorized by the
Board, taking proper vouchers therefor; and
(f) in general, perform all the duties incident to the
office of Treasurer and such other duties as from time to time
may be assigned to him or her by the Board, the Chairman of the
Board or the President.
Section 11. Assistant Treasurers. In the absence or
disability of the Treasurer, or when so directed by the
Treasurer, any Assistant Treasurer may perform any or all of
the duties of the Treasurer, and, when so acting, shall have
all the powers of, and be subject to all the restrictions upon,
the Treasurer. Each Assistant Treasurer shall perform all such
other duties as from time to time may be conferred upon or
assigned to him or her by the Board of Directors, the President
or the Treasurer.
Section 12. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books
provided for the purpose, the minutes of all meetings of the
Board, the committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance
with the provisions of these Bylaws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock
certificates of the Corporation, if any, (unless the seal of
the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation
under its seal;
(d) see that the books, reports, statements,
certificates and other documents and records required by law to
be kept and filed are properly kept and filed; and
(e) in general, perform all the duties incident to the
office of Secretary and such other duties as from time to time
may be assigned to him or her by the Board, the Chairman of the
Board or the President.
Section 13. Assistant Secretaries. In the absence or
disability of the Secretary, or when so directed by the
Secretary, any Assistant Secretary may perform any or all of
the powers of, and be subject to all restrictions upon, the
Secretary. Each Assistant Secretary shall perform such other
duties as from time to time may be conferred upon or assigned
to him or her by the Board of Directors, the President or the
Secretary.
Section 14. Delegation of Duties. In case of the absence
of any officer of the Corporation, or for any other reason that
the Board may deem sufficient, the Board may confer for the
time being the powers or duties, or any of them, of such
officer upon any other officer or upon any Director.
ARTICLE VI
CAPITAL STOCK
Section 1. Stock Certificates. Each stockholder shall
be entitled to have a certificate or certificates, in such form
as shall be approved by the Board which shall represent and
certify the number of shares of stock of the Corporation owned
by him or her; provided, however, that certificates for
fractional shares will not be delivered in any case. The
certificates representing shares of stock shall be signed by
the Chairman of the Board, the President or a Vice President
and countersigned by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer and sealed with the
seal of the Corporation. Any or all of the signatures or the
seal on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar
before such certificate shall be issued, it may be issued by
the Corporation with the same effect as if such officer,
transfer agent or registrar were still in office at the date of
issue.
Section 2. Transfer of Shares. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it
shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Except as otherwise
provided by law, the Corporation shall be entitled to recognize
the exclusive right of a person in whose name any share or
shares stand on the record of stockholders as the owner of such
share or shares for all purposes, including, without
limitation, the rights to receive dividends or other
distributions and to vote as such owner, and the Corporation
shall not be bound to recognize any equitable or legal claim to
or interest in any such share or shares on the part of any
other person.
Section 3. Transfer Agents and Registrars. The
Corporation may have one or more transfer agents and one or
more registrars of its stock, whose respective duties the Board
of Directors may, from time to time, define. No certificate of
stock shall be valid until countersigned by a transfer agent,
if the Corporation shall have a transfer agent or until
registered by a registrar, if the Corporation shall have a
registrar. The duties of transfer agent and registrar may be
combined.
Section 4. Record Date and Closing of Transfer Books.
The Board of Directors may fix, in advance, a date as the
record date for the purpose of determining stockholders
entitled to notice of, or to vote at, any meeting of
stockholders, or stockholders entitled to receive payment of
any dividend or the allotment of any rights, or in order to
make a determination of stockholders for any other proper
purpose. Such date, in any case, shall be not more than ninety
(90) days, and in case of a meeting of stockholders not less
than ten (10) days, prior to the date on which the particular
action requiring such determination of stockholders is to be
taken. Shares of the Corporation's stock acquired by the
Corporation between the record date and the time of the
applicable meeting may be voted at the meeting by the holder of
record as of the record date and shall be counted in
determining the total number of outstanding shares entitled to
be voted at the meeting. In lieu of fixing a record date, the
Board of Directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any
case, twenty (20) days. If the stock transfer books are closed
for the purpose of determining stockholders, such books shall
be closed for at least ten (10) days immediately preceding such
meeting. Only stockholders of record on such date shall be
entitled to notice of and to vote at such meeting or by consent
or to receive such dividends or rights, as the case may be.
Section 5. Regulations. The Board may make such
additional rules and regulations, not inconsistent with these
Bylaws, as it may deem expedient concerning the issue, transfer
and registration of certificates for shares of stock of the
Corporation.
Section 6. Lost, Stolen, Destroyed or Mutilated
Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the
Corporation alleged to have been stolen, lost or destroyed,
upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be stolen, lost or
destroyed or upon receipt of other satisfactory evidence of
such loss or destruction. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such stolen, lost or destroyed
certificate or certificates, or his or her legal
representative, to advertise the same in such manner as it
shall require and to give the Corporation a bond, with
sufficient surety, to indemnify it against any loss or claim
which may arise by reason of the issuance of a new certificate.
Section 7. Stock Ledgers. The Corporation shall not be
required to keep original or duplicate stock ledgers at its
principal office in the City of Baltimore, Maryland, but stock
ledgers shall be kept at the offices of the transfer agent of
the Corporation's capital stock. Such stock ledger may be in
written form or any other form capable of being converted into
written form within a reasonable time for visual inspection.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Seal. The Board of Directors shall provide a
suitable seal, bearing the name of the Corporation, which shall
be in charge of the Secretary. The Board of Directors may
authorize one or more duplicate seals and provide for the
custody thereof If the Corporation is required to place its
corporate seal on a document, it is sufficient to meet any
requirement of any law, rule, or regulation relating to a
corporate seal to place the word "Seal" adjacent to the
signature of the person authorized to sign the document on
behalf of the Corporation.
Section 2. Fiscal Year. Unless otherwise determined by
the Board, the fiscal year of the Corporation shall end on the
30th day of September in each year.
Section 3. Depositories. The funds of the Corporation
shall be deposited with such banks or other depositories as the
Board of Directors of the Corporation may from time to time
determine.
Section 4. Custodians. All securities and other
investments shall be deposited in the safekeeping of such banks
or other companies as the Board of Directors of the Corporation
may from time to time determine. Every arrangement entered
into with any bank or other company for the safekeeping of the
securities and investments of the Corporation shall contain
provisions complying with the Investment Company Act of 1940,
as amended, and the general rules and regulations thereunder.
Section 5. Dividends. Dividends upon the capital stock
of the Corporation, subject to the provisions of the Charter of
the Corporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in its own
shares, subject to the provisions of the Maryland General
Corporation Law and of the Charter of the Corporation, and
further subject to the provisions if any of an automatic
dividend investment plan or other similar plan which the Board
of Directors may adopt, which may give stockholders the right
to receive dividends and distributions in cash and/or shares at
their option, and may provide that such shares shall be issued
at net asset value notwithstanding that the same is below
market value.
Section 6. Checks, Notes, Drafts, etc. Checks, notes,
drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money issued in the name of the
Corporation shall be signed by such officer or officers or
person or persons as the Board of Directors shall from time to
time designate.
Section 7. Reports. The Corporation shall transmit to
its stockholders semi-annual unaudited or audited reports of
its financial condition and annual reports audited by
independent public accountants.
Section 8. Amendments. These Bylaws or any of them may
be amended, altered or repealed and new Bylaws adopted, only by
the Directors of the Corporation by the affirmative vote of a
majority of the Directors at any regular or special meeting of
the Board of Directors or by unanimous written consent of the
Directors.
2
MD_DOCS_A 1100281 v 1 (Word)
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Sub-Item 77Q1: Exhibit C
ELLSWORTH CONVERTIBLE GROWTH AND INCOME FUND,
INC.
AUDIT COMMITTEE CHARTER
(Adopted Effective April 19, 2000)
1. The membership of the Audit Committee shall consist of at least
three directors who are generally knowledgeable in financial and
auditing matters, including at least one member that has past
employment experience in finance or accounting, or any other
experience or background that results in the individual's financial
sophistication. Each member shall be free of any relationship that, in
the opinion of the Board of Directors, would interfere with his or her
individual exercise of independent judgment, and shall meet the
director independence requirements for serving on audit committees
as set forth in the AMEX listing standards.
2. The purposes of the Audit Committee are:
(a) to oversee the Funds' accounting and financial reporting
policies and practices, its internal controls and, as
appropriate, the internal controls of certain service providers;
(b) to oversee the quality and objectivity of the Funds' financial
statements and the independent audit thereof; and
(c) to act as a liaison between the Funds' independent auditors
and the full Board of Directors.
The function of the Audit Committee is oversight; it is management's
responsibility to maintain appropriate systems for accounting and
internal control, and the auditor's responsibility to plan and carry out
a proper audit. The independent auditors are ultimately accountable
to the Board and the Committee.
3. To carry out its purposes, the Audit Committee shall have the
following duties and powers:
(a) to recommend the selection, retention or termination of
auditors and, in connection therewith, to evaluate the
independence of the auditors, including whether the auditors
provide any consulting services to the manager, and to
receive from the auditors a formal written statement
delineating all relationships between the auditor and the
Funds;
(b) to meet with the Funds' independent auditors, including
private meetings, as necessary (i) to review the arrangements
for and scope of the annual audit and any special audits; (ii)
to discuss any matters of concern relating to the Funds'
financial statements, including any adjustments to such
statements recommended by the auditors, or other results of
said audit(s); (iii) to consider the auditors' comments with
respect to the Funds' financial policies, procedures and
internal accounting controls and management's responses
thereto; and (iv) to review the form of opinion the auditors
propose to render to the Board and shareholders;
(c) to consider the effect upon the Funds of any changes in
accounting principles or practices proposed by management
or the auditors;
(d) to review the fees charged by the auditors for audit and non-
audit services;
(e) to investigate improprieties or suspected improprieties in
fund operations; and
(f) to report its activities to the full Board on a regular basis and
to make such recommendations with respect to the above and
other matters as the Committee may deem necessary or
appropriate.
4. The Committee shall meet on a regular basis and is empowered to
hold special meetings as circumstances require.
5. The Committee shall regularly meet with the Treasurer of the Funds.
6. The Committee shall have the resources and authority appropriate to
discharge its responsibilities, including the authority to retain special
counsel and other experts or consultants at the expense of the
appropriate Fund(s).
7. The Committee shall review this Charter at least annually and
recommend any changes to the full Board of Directors.
