AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 1999
INVESTMENT COMPANY ACT FILE NO. 811-4710
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM N-2
REGISTRATION STATEMENT
UNDER THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 21
THE ASIA PACIFIC FUND, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
GATEWAY CENTER THREE, NEWARK, NEW JERSEY 07102-4077
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(973) 367-7521
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
DEBORAH A. DOCS
THE ASIA PACIFIC FUND, INC.
GATEWAY CENTER THREE
NEWARK, NEW JERSEY 07102-4077
(NAME AND ADDRESS OF AGENT FOR SERVICE)
If any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with a dividend reinvestment plan, check
the following box. [ ]
It is proposed that this filing will become effective (check appropriate box)
[ ] when declared effective pursuant to section 8(c)
If appropriate, check the following box:
[ ] this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
[ ] This form is filed to register additional securities for an offering
pursuant to Rule 426(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the same offering is - ___.
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PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
Registrant's Amended and Restated By-Laws, as adopted May 7, 1999 by the
Registrant's Board of Directors, and the new Management Agreement between
Registrant and Baring Asset Management (Asia) Limited dated May 7, 1999 are
filed herewith as new Exhibits 2(b) and 2(g), respectively.
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this amendment to its registrant statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in The City
of Newark, and State of New Jersey, on the 21st day of June 1999.
THE ASIA PACIFIC FUND, INC.
By /s/ ROBERT F. GUNIA
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Robert F. Gunia
Director, Vice President and
Treasurer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION METHOD OF FILING
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2(b) Amended and Restated By-Laws dated Filed Herewith
May 7, 1999.
2(g) Management Agreement between Filed Herewith
Registrant and Baring Asset Management
(Asia) Limited dated May 7, 1999
Exhibit 2(b)
THE ASIA PACIFIC FUND, INC.
Amended and Restated By-Laws
ARTICLE I
STOCKHOLDERS
Section 1. PLACE OF MEETING. All meetings of the stockholders
shall be held at the principal office of the Corporation in the State of
Maryland or at such other place within the United States as may from time to
time be designated by the Board of Directors and stated in the notice of such
meeting.
Section 2. ANNUAL MEETINGS. The annual meeting of stockholders
of the Corporation shall be held during the thirty day period between June 15
and July 15 of each year on such date and at such hour as may from time to time
be designated by the Board of Directors and stated in the notice of such
meeting, for the purpose of electing directors for the ensuing year and for the
transaction of such other business as may properly be brought before the
meeting.
Section 3. SPECIAL MEETINGS. (a) General. Special meetings of
the stockholders for any purpose or purposes may be
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called by the Chairman of the Board, the President or a majority of the Board of
Directors and, subject to subsection (b) of this Section 3, special meetings of
stockholders shall also be called by the Secretary upon receipt of the request
in writing signed by stockholders holding not less than a majority of the common
stock issued and outstanding and entitled to vote thereat (a "Stockholder
Requested Special Meeting"). Except as provided in subsection (b) of this
Section 3, any special meeting shall be held at such place, date and time as may
be designated by the Chairman, President or Board of Directors, whoever has
called the meeting. In fixing a date for any special meeting, the Chairman,
President or Board of Directors may consider such factors as he, she or it deems
relevant within the good faith exercise of business judgment, including, without
limitation, the nature of the matters to be considered, the facts and
circumstances surrounding any request for meeting and any plan of the Board of
Directors to call an annual meeting or a special meeting.
(b) Stockholder Requested Special Meetings. (1) Any
stockholder of record seeking to have stockholders request a special meeting
shall, by sending written notice to the Secretary of the Corporation (the
"Record Date Request Notice") by certified or registered mail, return receipt
requested, request
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the Board of Directors to fix a record date to determine the stockholders
entitled to request a special meeting (the "Request Record Date"). The Record
Date Request Notice shall set forth the purpose of the meeting and the matters
proposed to be acted on at it, shall be signed by one or more stockholders of
record as of the date of signature (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such stockholder (or
proxy or other representative) and shall set forth all information relating to
each such stockholder that must 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"), and Rule 14a-11 thereunder. Upon receiving the
Record Date Request Notice, the Board of Directors may fix a Request Record
Date. The Request Record Date shall not precede and shall not be more than 10
days after the close of business on the date upon which the resolution fixing
the Request Record Date is adopted by the Board of Directors. If the Board of
Directors, within 10 days after the date on which a valid Record Date Request
Notice is received, fails to adopt a resolution fixing the Request Record Date
and make a public announcement of such Request Record Date,
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the Request Record Date shall be the close of business on the 10th day after the
first date on which the Record Date Request Notice is received by the Secretary.
(2) For any stockholder to request a special meeting, one or
more written requests for a special meeting, signed by stockholders of record
(or their duly authorized proxies or other representatives) as of the Request
Record Date entitled to cast not less than a majority (the "Special Meeting
Percentage") of all of the votes entitled to be cast at such meeting (the
"Special Meeting Request"), shall be delivered to the Secretary. The Special
Meeting Request shall set forth the purpose of the meeting and the matters
proposed to be acted on at it (which shall be limited to the matters set forth
in the Record Date Request Notice received by the Secretary of the Corporation),
shall be signed by one or more persons who as of the Request Record Date are
stockholders of record (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such stockholder (or
proxy or other representative), shall set forth the name and address, as they
appear in the Corporation's books, of each stockholder signing such request (or
on whose behalf the Special Meeting Request is signed) and the class and the
number of shares of stock of the
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Corporation that are owned of record and beneficially by each such stockholder,
shall be sent to the Secretary by certified or registered mail, return receipt
requested, and shall be received by the Secretary within 60 days after the
Request Record Date. Any requesting stockholder may revoke his, her or its
request for a special meeting at any time by written revocation delivered to the
Secretary.
(3) The Secretary shall inform the requesting stockholders of
the reasonably estimated cost of preparing and mailing the notice of meeting
(including the Corporation's proxy materials). The Secretary shall not be
required to call a special meeting upon stockholder request unless, in addition
to the documents required by paragraph (2) of this Section 3(b), the Secretary
receives from the requesting stockholders payment of such reasonably estimated
cost of preparing and mailing the meeting notice.
(4) A Stockholder Requested Special Meeting shall be held at
such place, date and time as may be designated by the Board of Directors;
provided, however, that the date of any Stockholder Requested Meeting shall be
not more than 90 days after the Meeting Record Date (as defined below); and
provided
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further that if the Board of Directors fails to designate, within 10 days after
the date that a valid Special Meeting Request is delivered to the Secretary (the
"Delivery Date"), a date and time for a Stockholder Requested Meeting, then such
meeting shall be held at 2:00 p.m. local time on the 120th day after the
Delivery Date or, if such 120th day is not a Business Day (as defined below), on
the first preceding Business Day; and provided further that in the event that
the Board of Directors fails to designate a place for a Stockholder Requested
Special Meeting within 10 days after the Delivery Date, then such meeting shall
be held at the principal executive offices of the Corporation. In the case of
any Stockholder Requested Special Meeting, if the Board of Directors fails to
fix a record date for such meeting that is a date within 30 days after the
Delivery Date (the "Meeting Record Date"), then the close of business on the
30th day after the Delivery Date shall be the Meeting Record Date.
(5) If at any time as a result of written revocations of
requests for the special meeting, less than the Special Meeting Request
Percentage shall continue to have been delivered and not revoked, the Secretary
may refrain from mailing the notice of the meeting or, if the notice of the
meeting has been mailed, the Secretary may revoke the notice of the meeting at
any
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time up to 10 days prior to the meeting if the Secretary has first sent to all
other requesting stockholders written notice of such revocation and of the
intention to revoke the notice of the meeting. Any request for a special meeting
received after a revocation of a notice of a meeting shall be considered a
request for a new special meeting.
(6) The Corporation may engage regionally or nationally
recognized independent inspectors of elections to act as the agent of the
Corporation for the purpose of promptly performing a ministerial review of the
validity of any purported Special Meeting Request received by the Secretary. For
the purpose of permitting the inspectors to perform such review, no such
purported request shall be deemed to have been delivered to the Secretary until
the earlier of (i) five Business Days after receipt by the Secretary of such
purported request and (ii) such date as the independent inspectors certify to
the Corporation that the valid requests received by the Secretary represent at
least a majority of the issued and outstanding shares of stock that would be
entitled to vote at such meeting. Nothing contained in this paragraph (6) shall
in any way be construed to suggest or imply that the Board of Directors or any
stockholder shall not be entitled to contest the validity of any request,
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whether during or after such five Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
(7) For purposes of these By-Laws, "Business Day" shall mean
any day other than a Saturday, a Sunday or a day on which banking institutions
in the State of Maryland are authorized or obligated by law or executive order
to close.
Section 4. NOTICE OF MEETINGS OF STOCKHOLDERS. Not less than
ten days' and not more than ninety days' written or printed notice of every
meeting of stockholders, stating the time and place thereof (and the general
nature of the business proposed to be transacted at any special meeting), shall
be given to each stockholder entitled to vote thereat 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 such
stockholder's address as it appears upon the books of the Corporation. If
mailed, notice shall be deemed to be given when deposited in the United States
mail addressed to the stockholder as aforesaid.
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No notice of the time, place or purpose of any meeting of
stockholders need be given to any stockholder who attends in person or by proxy
or to any stockholder who, in writing executed and filed with the records of the
meeting, either before or after the holding thereof, waives such notice.
Section 5. RECORD DATES. The Board of Directors may fix, in
advance, a date not exceeding ninety days preceding the date of any meeting of
stockholders, any dividend payment date or any date for the allotment of rights,
as a record date for the determination of the stockholders entitled to notice of
and to vote at such meeting or entitled to receive such dividends or rights, as
the case may be. In the case of a meeting of stockholders, such date shall not
be less than ten days prior to the date fixed for such meeting.
Section 6. QUORUM, ADJOURNMENT OF MEETINGS. The presence in
person or by proxy of the holders of record of one-third of the shares of the
common stock of the Corporation issued and outstanding and entitled to vote
thereat shall constitute a quorum at all meetings of the stockholders except as
otherwise provided in the Articles of Incorporation. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
holders of a majority of the stock present in
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person or by proxy shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote at such meeting shall be present. At such
adjourned meeting at which the requisite amount of stock entitled to vote
thereat shall be represented, any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 7. VOTING AND INSPECTORS. At all meetings,
stockholders of record entitled to vote thereat shall have one vote for each
share of common stock standing in his name on the books of the Corporation (and
such stockholders of record holding fractional shares, if any, shall have
proportionate voting rights) on the date for the determination of stockholders
entitled to vote at such meeting, either in person or by proxy appointed by
instrument in writing subscribed by such stockholder or his duly authorized
attorney.
All elections shall be had and all questions decided by a
majority of the votes cast at a duly constituted meeting, except as otherwise
provided by statute or by the Articles of Incorporation or by these By-Laws.
At any election of Directors, the Chairman of the meeting may,
and upon the request of the holders of ten percent
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(10%) of the stock entitled to vote at such election shall, appoint two
inspectors of election who shall first subscribe an oath or affirmation to
execute faithfully the duties of inspectors at such election with strict
impartiality and according to the best of their 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 8. CONDUCT OF STOCKHOLDERS' MEETINGS. The meetings of
the stockholders shall be presided over by the Chairman of the Board, or if he
is not present, by the President, or if he is not present, by a Vice-President,
or if none of them is present, by a Chairman to be elected at the meeting. The
Secretary of the Corporation, if present, shall act as a Secretary of such
meetings, or if he is not present, an Assistant Secretary shall so act; if
neither the Secretary nor the Assistant Secretary is present, then the meeting
shall elect its Secretary.
Section 9. CONCERNING VALIDITY OF PROXIES, BALLOTS, ETC. 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 meeting, who shall decide
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all questions touching the qualification of voters, the validity of the proxies
and the acceptance or rejection of votes, unless inspectors of election shall
have been appointed by the Chairman of the meeting, in which event such
inspectors of election shall decide all such questions.
Section 10. ACTION WITHOUT 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. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR
DIRECTOR AND OTHER STOCKHOLDER PROPOSALS.
(a) The matters to be considered and brought before any annual
or special meeting of stockholders of the Corporation shall be limited to only
such matters, including the nomination and election of directors, as shall be
brought properly before such meeting in compliance with the procedures set forth
in this Section 11.
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(b) For any matter to be properly before any annual meeting of
stockholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise brought
before the annual meeting by or at the direction of the Board of Directors or
(iii) brought before the annual meeting in the manner specified in this Section
11(b) by a stockholder of record or a stockholder (a "Nominee Holder") that
holds voting securities entitled to vote at meetings of stockholders through a
nominee or "street name" holder of record and can demonstrate to the Corporation
such indirect ownership and such Nominee Holder's entitlement to vote such
securities. In addition to any other requirements under applicable law and the
Certificate of Incorporation and By-Laws of the Corporation, persons nominated
by stockholders for election as directors of the Corporation and any other
proposals by stockholders shall be properly brought before the meeting only if
written notice of any such matter to be presented by a stockholder at such
meeting of stockholders (the "Stockholder Notice") shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not less than 90 nor more than 120 days prior to the first
anniversary date of the annual meeting for the preceding
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year; provided, however, if and only if the annual meeting is not scheduled to
be held within a period that commences 30 days before such anniversary date and
ends 30 days after such anniversary date (an annual meeting date outside such
period being referred to herein as an "Other Annual Meeting Date"), such
Stockholder Notice shall be given in the manner provided herein by the later of
the close of business on (i) the date 90 days prior to such Other Annual Meeting
Date or (ii) the 10th day following the date such Other Annual Meeting Date is
first publicly announced or disclosed. Any stockholder desiring to nominate any
person or persons (as the case may be) for election as a director or directors
of the Corporation shall deliver, as part of such Stockholder Notice: (i) a
statement in writing setting forth (A) the name of the person or persons to be
nominated, (B) the number and class of all shares of each class of stock of the
Corporation owned of record and beneficially by each such person, as reported to
such stockholder by such nominee(s), (C) the information regarding each such
person required by paragraph (b) of Item 22 of Rule 14a-101 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), adopted by the Securities
and Exchange Commission (or the corresponding provisions of any regulation or
rule
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subsequently adopted by the Securities and Exchange Commission applicable to the
Corporation), (D) whether such stockholder believes any nominee will be an
"interested person" of the Corporation (as defined in the Investment Company Act
of 1940, as amended) and, if not an "interested person", information regarding
each nominee that will be sufficient for the Corporation to make such
determination, and (E) the number and class of all shares of each class of stock
of the Corporation owned of record and beneficially by such stockholder; (ii)
each such person's signed consent to serve as a director of the Corporation if
elected (iii) such stockholder's name and address; and, (iv) in the case of a
Nominee Holder, evidence establishing such Nominee Holder's indirect ownership
of, and entitlement to vote, securities at the meeting of stockholders. Any
stockholder who gives a Stockholder Notice of any matter proposed to be brought
before the meeting (not involving nominees for director) shall deliver, as part
of such Stockholder Notice, the text of the proposal to be presented; a brief
written statement of the reasons why such stockholder favors the proposal; such
stockholder's name and address; the number and class of all shares of each class
of stock of the Corporation owned of record and beneficially by such
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stockholder; if applicable, any material interest of such stockholder in the
matter proposed (other than as a stockholder); and, in the case of a Nominee
Holder, evidence establishing such Nominee Holder's indirect ownership of, and
entitlement to vote, securities at the meeting of stockholders. As used herein,
shares "beneficially owned" shall mean all shares that such person is deemed to
beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act.
Notwithstanding anything in this Section 11(b) to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation is increased and either all of the nominees for
director or the size of the increased Board of Directors are not publicly
announced or disclosed by the Corporation at least 100 days prior to the first
anniversary of the preceding year's annual meeting, a Stockholder Notice shall
also be considered timely hereunder, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not later than the close of business on the 10th day following the
first date all of such nominees or the size of the increased
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Board of Directors shall have been publicly announced or disclosed.
(c) Only such matters shall be properly brought before a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting. 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 Notice required by
Section 11(b) hereof shall be delivered to the Secretary of the Corporation at
the principal executive office of the Corporation not later than the close of
business on the 10th day following the day on which the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting is publicly announced or disclosed.
(d) For purposes of this Section 11, a matter shall be deemed
to have been "publicly announced or disclosed" if such matter is disclosed in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news
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service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting, or
any announcement thereof, commence a new period for the giving of notice as
provided in this Section 11. This Section 11 shall not apply to stockholder
proposals made pursuant to Rule 14a-8 under the Exchange Act.
(f) The person presiding at any meeting of stockholders, in
addition to making any other determinations that may be appropriate to the
conduct of the meeting, shall have the power and duty to determine whether
notice of nominees and other matters proposed to be brought before a meeting has
been duly given in the manner provided in this Section 11 and, if not so given,
shall direct and declare at the meeting that such nominees and other matters
shall not be considered.
ARTICLE II
BOARD OF DIRECTORS
Section 1. NUMBER AND TENURE OF OFFICE. The business and
affairs of the Corporation shall be conducted and managed by a Board of
Directors of not less than three nor more than fourteen Directors, as may be
determined from time to time by vote of a majority of the Directors then in
office. Directors
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need not be stockholders.
Section 2. TENURE OF DIRECTORS. Whenever there shall be at
least three Directors, the Directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
to expire the first subsequent Annual Meeting of Stockholders, and the term of
office of the second class to expire at the second subsequent Annual Meeting of
Stockholders, and the term of office of the third class to expire at the third
subsequent Annual Meeting of Stockholders. At each Annual meeting of
Stockholders, successors to the class of Directors whose term expires at that
Annual Meeting shall be elected for a three year term. The provisions of Article
VI of the Articles of Incorporation will govern herein.
Section 3. VACANCIES. In case of any vacancy in the Board of
Directors through death, resignation or other cause, other than an increase in
the number of Directors, a majority of the remaining Directors, although a
majority is less than a quorum, by an affirmative vote, may elect a successor to
hold office until the next annual meeting of stockholders and until his
successor is chosen and qualifies.
Section 4. INCREASE OR DECREASE IN NUMBER OF DIRECTORS. The
Board of Directors, by the vote of a majority of
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the entire Board, may increase the number of Directors and may elect Directors
to fill the vacancies created by any such increase in the number of Directors
until the next annual meeting or until their successors are duly chosen and
qualified. The Board of Directors, by the vote of a majority of the entire
Board, may likewise decrease the number of Directors to a number not less than
three.
Section 5. 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.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such time and on such notice as the Directors may
from time to time determine.
The annual meeting of the Board of Directors shall be held as
soon as practicable after the annual meeting of the stockholders for the
election of Directors.
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Section 7. SPECIAL MEETINGS; WAIVERS OF NOTICE . Special
meetings of the Board of Directors may be held from time to time upon call of
the Chairman of the Board, the President, the Secretary or two or more of the
Directors, by oral or telegraphic or written notice duly served on or sent or
mailed to each Director not less than one day before such meeting. No notice
need be given to any Director who attends in person or to any Director who, in a
writing executed and filed with the records of the meeting either before or
after the holding thereof, waives such notice. Such notice or waiver of notice
need not state the purpose or purposes of such meeting.
Section 8. QUORUM. A majority of the Directors then in office
shall constitute a quorum for the transaction of business, provided that a
quorum shall in no case be less than two Directors. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum shall have been obtained.
The act of the majority of the Directors present at any meeting at which there
is a quorum shall be the act of the Directors, except as may be otherwise
specifically provided by statute or by the Articles of Incorporation or by these
By-Laws.
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Section 9. EXECUTIVE COMMITTEE. The Board of Directors may, by
the affirmative vote of a majority of the whole Board, appoint from the
Directors an Executive Committee to consist of such number of Directors (not
less than three) as the Board may from time to time determine. The Chairman of
the Committee shall be elected by the Board of Directors. The Board of Directors
by such affirmative vote shall have power at any time to change the members of
such Committee and may fill vacancies in the Committee by election from the
Directors. When the Board of Directors is not in session, to the extent
permitted by law the Executive Committee shall have and may exercise any or all
of the powers of the Board of Directors in the management of the business and
affairs of the Corporation. The Executive Committee may fix its own rules of
procedure, and may meet when and as provided by such rules or by resolution of
the Board of Directors, but in every case the presence of a majority shall be
necessary to constitute a quorum. During the absence of a member of the
Executive Committee, the remaining members may appoint a member of the Board of
Directors to act in his place.
Section 10. OTHER COMMITTEES. The Board of Directors, by the
affirmative vote of a majority of the whole Board, may appoint from the
Directors other committees which shall in each
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case consist of such number of Directors (not less than two) and shall have and
may exercise such powers and the Board may determine in the resolution
appointing them. A majority of all the members of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power at any time to change the members and powers of any such committee, to
fill vacancies and to discharge any such committee.
Section 11. TELEPHONE MEETINGS. Members of the Board of
Directors or a 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 the
meeting.
Section 12. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or 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 the
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proceedings of the Board or such committee.
Section 13. COMPENSATION OF DIRECTORS. No Directors shall
receive any stated salary or fees from the Corporation for his services as such
if such Director is, otherwise than by reason of being such Director, an
interested person (as such term is defined by the Investment Company Act of
1940) of the Corporation or of its investment adviser, administrator or
principal underwriter. Except as provided in the preceding sentence, Directors
shall be entitled to receive such compensation from the Corporation for their
services as may from time to time be voted by the Board of Directors.
ARTICLE III
OFFICERS
Section 1. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be chosen by the Board of Directors as soon as may be
practicable after the annual meeting of the stockholders. These shall include a
President (who shall be a Director), one or more Vice-Presidents (the number
thereof to be determined by the Board of Directors), a Secretary and a
Treasurer. The Board of Directors or the Executive Committee may also in its
discretion appoint Assistant Secretaries, Assistant
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Treasurers and other officers, agents and employees, who shall have such
authority and perform such duties as the Board or the Executive Committee may
determine. The Board of Directors may fill any vacancy which may occur in any
office. Any two officers, except those of President and Vice-President, may be
held by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity, if such instrument is required by law or
these By-Laws to be executed, acknowledged or verified by two or more officers.
Section 2. TERM OF OFFICE. The term of office of all officers
shall be one year and until their respective successors are chosen and
qualified. Any officer may be removed from office at any time with or without
cause by the vote of a majority of the whole Board of Directors. 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 3. POWERS AND DUTIES. The officers of the Corporation
shall have such powers and duties as generally pertain to their respective
offices, as well as such powers and duties as may from time to time be conferred
by the Board of
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Directors or the Executive Committee.
Section 4. SURETY BONDS. The Board of Directors may require
any officer or agent of the Corporation to execute a bond (including, without
limitation, any bond required by the Investment Company Act of 1940, as amended,
and the rules and regulations of the Securities and Exchange Commission) to the
Corporation in such sum and with such surety or sureties as the Board of
Directors may determine, conditioned upon the faithful performance of his duties
to the Corporation, including responsibility for negligence and for the
accounting of any of the Corporation's property, fund or securities that may
come into his hands.
ARTICLE IV
CAPITAL STOCK
Section 1. CERTIFICATES FOR SHARES. Each stockholder of the
Corporation shall be entitled to a certificate or certificates for the full
shares of stock of the Corporation owned by him in such form as the Board may
from time to time prescribe.
Section 2. TRANSFER OF SHARES. Shares of the Corporation shall
be transferable on the books of the Corporation
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by the holder thereof in person or by his duly authorized attorney or legal
representative, upon surrender and cancellation of certificates, if any, for the
same number of shares, duly endorsed or accompanied by proper instruments or
assignment and transfer, with such proof of the authenticity of the signature as
the Corporation or its agents may reasonably require; in the case of shares not
represented by certificates, the same or similar requirements may be imposed by
the Board of Directors.
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 office 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
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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. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board
of Directors or the Executive Committee may determine the conditions upon which
a new certificate of stock of the Corporation of any class may be issued in
place of a certificate which is alleged to have been lost, stolen or destroyed;
and may, in its discretion, require the owner of such certificate or such
owner's legal representative to give bond, with sufficient surety, to the
Corporation and each Transfer Agent, if any, and to indemnify it and each such
Transfer Agent against any and all losses or claims which may arise by reason of
the issue of a new certificate in the place of the one so lost, stolen or
destroyed.
ARTICLE V
CORPORATE SEAL
The Board of Directors may provide for a suitable corporate
seal, in such form and bearing such inscriptions as it may determine.
ARTICLE VI
FISCAL YEAR AND ACCOUNTANT
Section 1. FISCAL YEAR. The fiscal year of the
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Corporation shall, unless otherwise ordered by the Board of Directors, begin on
the first day of January and shall end on the last day of December in each year.
Section 2. ACCOUNTANT. The Corporation shall employ an
independent public accountant or a firm of independent public accountants as its
Accountant 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 VII
INDEMNIFICATION
The Corporation shall indemnify directors, officers, employees
and agents of the Corporation against judgements, fines, settlements and
expenses to the fullest extent authorized, and in the manner permitted, by
applicable federal and state law.
ARTICLE VIII
CUSTODIAN
Section 1. DESIGNATION OF CUSTODIAN, SUBCUSTODIANS. The
Corporation shall have as custodian or custodians one or more
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trust companies or banks of good standing, each having a capital, surplus and
undivided profits aggregating not less than fifty million dollars ($50,000,000),
and, to the extent required by the Investment Company Act of 1940, the funds and
securities held by the Corporation shall be kept in the custody of one or more
such custodians, provided such custodian or custodians can be found ready and
willing to act, and further provide that the Corporation may use a subcustodian,
for the purpose of holding any foreign securities and related funds of the
Corporation, such foreign banks as the Board of Directors may approve and as
shall be permitted by law.
Section 2. TERMINATION OF CUSTODIAN. The Corporation shall
upon the resignation or inability to serve of its custodian or upon change of
the custodian:
(i) in case of such resignation or inability to serve, use its
best efforts to obtain a successor custodian;
(ii) require that the cash and securities owned by the
Corporation be delivered directly to the successor custodian; and
(iii) in the event that no successor custodian can be found,
submit to the stockholders before permitting
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delivery of the cash and securities owned by the Corporation otherwise than to a
successor custodian, the question whether or not this Corporation shall be
liquidated or shall function without a custodian.
ARTICLE IX
AMENDMENT OF BY-LAWS
The Board of Directors shall have the exclusive power to make,
alter and repeal the By-Laws of the Corporation. Dated: May 7, 1999.
31
Exhibit 2(g)
MANAGEMENT AGREEMENT
AGREEMENT dated as of May 7, 1999, between The Asia Pacific Fund, Inc.
("Fund"), a Maryland corporation registered under the Investment Company Act of
1940 ("the 1940 Act"), and Baring Asset Management (Asia) Limited, a Hong Kong
corporation ("Investment Manager")
1. INVESTMENT MANAGER
1.1. The Investment Manager will manage, in accordance with the Fund's
stated investment objective, policies and limitations and subject to the
supervision of the Fund's Board of Directors, the Fund's investments and make
investment decisions on behalf of the Fund, including the selection of and
placing of orders with brokers and dealers to execute portfolio transactions on
behalf of the Fund.
1.2. The Fund will pay the Investment Manager a fee at the annual rate
of 1.10% of the Fund's average weekly net assets up to U.S. $50 million, 0.90%
of such amounts between U.S. $50 million and U.S. 100 million and 0.70% of such
amounts in excess of U.S. $100 million, computed on the basis of net asset value
at the end of each week and payable at the end of each calendar month.
2. EXPENSES. The Investment Manager shall bear all expenses of its
employees and overhead incurred by it 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 Manager. The Fund will bear all of its own expenses, including fees
of the Fund's directors who are not interested persons (as defined in the 1940
Act)of any other party; out-of-pocket travel expenses for all directors and
other expenses incurred by the Fund in connection with meetings of directors;
interest expense; taxes and government fees; brokerage commissions and other
expenses incurred in acquiring or disposing of the Fund's portfolio securities;
expenses of preparing stock certificates; expenses in connection with the
issuance, offering, distribution, sale or underwriting of securities issued by
the Fund; expenses of registering and qualifying the Fund's shares for sale with
the Securities and Exchange Commission and in various states and foreign
jurisdictions; auditing, accounting, insurance and legal costs; custodian,
dividend disbursing and transfer agent expenses; expenses of obtaining and
maintaining stock exchange listings of the Fund's shares; and the expenses of
shareholders' meetings and of the preparation and distribution of proxies and
reports to shareholders.
<PAGE>
3. LIABILITY AND INDEMNITY. The Investment Manager shall not 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 its part in the
performance of, or from reckless disregard by it of its obligations and duties
under, this Agreement. The Fund agrees to indemnify and hold harmless the
Investment Manager and its directors, officers and controlling persons against
reasonable legal expenses incurred by each of them in such a successful defense
against any claims to which the Investment Manager or such person may become
subject that arises out of or is based upon the services to be performed by the
Investment Manager under this Agreement.
4. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Investment Manager are not deemed to be exclusive, and nothing in this Agreement
shall prevent the Investment Manager, or any of its affiliates, 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
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
such clients and the Fund in a manner believed by the Investment Manager to be
equitable to such clients and the Fund.
5. DURATION AND TERMINATION. This Agreement shall be effective for a
period of twelve months from its execution and shall continue in effect 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 a majority of the outstanding voting securities of the Fund, or
(b) the vote of a majority of the Fund's Board of Directors. Notwithstanding the
foregoing, this Agreement may be terminated by the Fund, without the payment of
any penalty, upon vote of a majority of the Fund's Board of Directors or a
majority of the outstanding voting securities of the Fund, at any time upon not
less than 60 day's prior written notice to the Investment Manager, or by the
Investment Manager upon not less than 90 days' written notice to the Fund. This
Agreement shall automatically terminate 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.
<PAGE>
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 the
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 ASIA PACIFIC FUND, INC.
By:/s/ Robert F. Gunia
-------------------------------------
Vice President
BARING ASSET MANAGEMENT
(ASIA) LIMITED
By:/s/ Christopher Cairns
------------------------------------
Director
