Exhibit 2(b)
THE ASIA PACIFIC FUND, INC.
Amended and Restated Bylaws
ARTICLE I
Offices
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Section 1. Principal Office. The principal office of the Corporation in
the State of Maryland shall be located at such place as the Board of Directors
may designate.
Section 2. Additional Offices. The Corporation may have additional
offices, including a principal executive office, at such places as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
Meetings of Stockholders
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Section 1. Place of Meetings. All meetings of the stockholders shall be
held at the principal executive office of the Corporation or at such other place
as shall be set 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,
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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 called by the chairman of the
board, the president or a majority of the Board of Directors and, pursuant to
Section 3-805 of the Maryland General Corporation Law (the "MGCL"), subject to
subsection (b) of this Section 3, special meetings of stockholders shall also be
called by the secretary only 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.
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(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 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 agents), shall bear the date of signature
of each such stockholder (or other agent) 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 (even if an election
contest is not involved), or is otherwise required, in each case pursuant to
Regulation 14A (or any successor provision) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and Rule 14a-11 (or any successor
provision) 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
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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, 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 agents) 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 agents), shall bear the date of signature of each such
stockholder (or other agent), 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
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the class and the number of shares of stock of the 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
further that if the Board of Directors fails to designate, within 10 days after
the date that a valid Special Meeting Request is
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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 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 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
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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, 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).
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(7) For purposes of these Bylaws, "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. Not less than ten nor more than 90 days before each
meeting of stockholders, the secretary shall give to each stockholder entitled
to vote at such meeting and to each stockholder not entitled to vote who is
entitled to notice of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as otherwise may
be required by any statute, the purpose for which the meeting is called, either
by mail or by presenting it to such stockholder personally or by leaving it at
the stockholder's residence or usual place of business or by any other means
permitted by Maryland law. If mailed, such notice shall be deemed to be given
when deposited in the United States mail addressed to the stockholder's address
as it appears on the records of the Corporation, with postage thereon prepaid.
Any business of the Corporation may be transacted at an annual meeting
of stockholders without being specifically designated in the notice, except such
business as is required by any statute to be stated in such notice. No business
shall be transacted at a special meeting of stockholders except as specifically
designated in the notice.
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Section 5. Quorum, Adjournment of Meetings. At any meeting of
stockholders, the presence in person or by proxy of stockholders entitled to
cast one-third of all the votes entitled to be cast at the meeting shall
constitute a quorum, but this section shall not affect any requirement under any
statute or the charter of the Corporation (the "Charter") 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 chairman of the meeting
or the holders of a majority of the shares of stock present in person or by
proxy shall have power to adjourn the meeting from time to time to a date not
more than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall
be present, any business may be transacted that might have been transacted at
the meeting as originally notified. The stockholders present either in person or
by proxy, at a meeting that has been duly called and convened, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 6. Voting. 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
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date for the determination of stockholders entitled to vote at such meeting.
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 Charter or by these Bylaws.
Section 7. Proxies. A stockholder may cast the votes entitled to be
cast by the shares of stock owned of record by the stockholder in person or by
proxy in any manner permitted by law. Such proxy or evidence of authorization of
such proxy shall be filed with the secretary of the Corporation before or at the
time of the meeting. No proxy shall be valid more than eleven months after its
date, unless otherwise provided in the proxy.
Section 8. Inspectors. At any election of directors, the chairman of
the meeting may, and upon the request of the holders of ten percent (10%) of the
stock entitled to vote at such election shall, appoint 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.
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Section 9. Organization and Conduct. Every meeting of stockholders
shall be conducted by an individual appointed by the Board of Directors to be
chairman of the meeting or, in the absence of such appointment, by the chairman
of the board or, in the case of a vacancy in the office or absence of the
chairman of the board, by one of the following officers present at the meeting:
the vice chairman of the board, if there be one, the president, the vice
presidents in their order of rank and seniority, or, in the absence of such
officers, a chairman chosen by the stockholders by the vote of a majority of the
votes cast by stockholders present in person or by proxy. The secretary, or, in
the secretary's absence, an assistant secretary, or in the absence of both the
secretary and assistant secretaries, a person appointed by the Board of
Directors or, in the absence of such appointment, a person appointed by the
chairman of the meeting shall act as secretary. In the event that the secretary
presides at a meeting of the stockholders, an assistant secretary shall record
the minutes of the meeting. The order of business and all other matters of
procedure at any meeting of stockholders shall be determined by the chairman of
the meeting. The chairman of the meeting may prescribe such rules, regulations
and procedures and take such action as, in the discretion of such chairman, are
appropriate for the proper conduct of the meeting, including, without
limitation, (a) restricting admission to the time set for
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the commencement of the meeting; (b) limiting attendance at the meeting to
stockholders of record of the Corporation, their duly authorized proxies or
other such persons as the chairman of the meeting may determine; (c) limiting
participation at the meeting on any matter to stockholders of record of the
Corporation entitled to vote on such matter, their duly authorized proxies or
other such persons as the chairman of the meeting may determine; (d) limiting
the time allotted to questions or comments by participants; (e) maintaining
order and security at the meeting; (f) removing any stockholder or other person
who refuses to comply with meeting procedures, rules or guidelines as set forth
by the chairman of the meeting; and (g) recessing or adjourning the meeting to a
later date and time and place announced at the meeting. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
Section 10. 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 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
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decide all such questions.
Section 11. 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 12. Advance Notice of Stockholder Nominees for Director and
Other Stockholder Proposals.
(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 12(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 12(a).
(2) For nominations for election to the Board of Directors or other
business to be properly brought before an
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annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1) of
this Section 12, 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 must be delivered to the secretary at the principal
executive office of the Corporation by not later than the close of business on
the 90th day prior to the first anniversary of the date of mailing of the notice
for the preceding year's annual meeting nor earlier than the close of business
on the 120th day prior to the first anniversary of the date of mailing of the
notice for the preceding year's annual meeting; provided, however, that in the
event that the date of the mailing of the notice for the annual meeting is
advanced or delayed by more than 30 days from the anniversary date of the
mailing of the notice for the preceding year's 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 the date of mailing of the notice for such
annual meeting and not later than the close of business on the later of the 90th
day prior to the date of mailing of the notice for such annual meeting or the
tenth day following the day on which public announcement of the date of mailing
of the notice for such meeting is first made by the Corporation. In no event
shall the public announcement of a
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postponement of the mailing of the notice for such annual meeting or of an
adjournment or postponement 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. A stockholder's notice to be proper must set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director (A) the name, age, business address and residence address of such
person, (B) the class and number of shares of stock of the Corporation that are
beneficially owned or owned of record by such person, (C) 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 such nominee that will
be sufficient for the Corporation to make such determination and (D) all other
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 (or any successor
provision) under 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 description of the business desired to be brought before
the meeting, the reasons for conducting such business at
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the meeting and any material interest in such business of such stockholder
(including any anticipated benefit to the stockholder therefrom) and of each
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and each 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 stock ledger and current name
and address, if different, and of such beneficial owner, and (y) the class and
number of shares of stock of the Corporation that 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 12 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 of such action or specifying the size of the
increased Board of Directors at least 100 days prior to the first anniversary of
the date of mailing of the notice for the preceding year's annual meeting, a
stockholder's notice required by this Section 12(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if the notice is delivered to the secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth day
immediately following the
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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 12(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 12(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 12 shall have been delivered to the
secretary at the principal executive offices of
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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
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 12 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 12. The chairman of the meeting shall
have the power and duty to determine whether a nomination or any other 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 12 and, if any
proposed nomination or other business is not in compliance with this Section 12,
to declare that such nomination or proposal shall be disregarded.
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(2) For purposes of this Section 12, (a) the "date of mailing of the
notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of directors and (b) "public announcement" shall mean
disclosure (i) in a press release either transmitted to the principal securities
exchange on which shares of the Corporation's common stock are traded or
reported by a recognized news service or (ii) in a document publicly filed by
the Corporation with the United States Securities and Exchange Commission.
(3) Notwithstanding the foregoing provisions of this Section 12, 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 12. Nothing in this Section 12 shall be deemed
to affect any right of a stockholder to request inclusion of a proposal in, nor
the right of the Corporation to omit a proposal from, the Corporation's proxy
statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
ARTICLE III
Board of Directors
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Section 1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of its
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Board of Directors.
Section 2. Number, Tenure and Qualifications. (a) Number. Pursuant to
Section 3-804(b) of the MGCL, only the Board of Directors may increase or
decrease the number of directors, provided that the number thereof shall never
be less than three nor more than fourteen, and further provided that the tenure
of office of a director shall not be affected by any decrease in the number of
directors.
(b) Tenure. Whenever there shall be at least three directors, pursuant
to section 3-803 of the MGCL, 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.
(c) Qualification. To qualify as a nominee for a directorship, an
individual, at the time of nomination, (i) shall have substantial expertise,
experience or relationships relevant to the business of the Corporation and (ii)
shall be at least one of the following: (A) a citizen of any country in the
Asia-
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Pacific region in which the Corporation is authorized to make equity investments
at the time of nomination (an "Asia-Pacific Country") or an individual for whom
an Asia-Pacific Country has been a primary residence for at least five years;
(B) a present or former director of, member of the supervisory board or senior
executive officer of, or senior consultant to, (1) at least one company the
securities of which, or of an affiliate or successor of which, are principally
listed or traded on a securities exchange located in an Asia-Pacific Country or
(2) a securities exchange located in an Asia-Pacific Country; (C) a present or
former ambassador, minister, consul or economic, financial or commercial attache
of another country to an Asia-Pacific Country; (D) a present or former director
or senior executive officer of an investment advisor or an administrator for the
Corporation, or of any person controlling, or under common control with, an
advisor or an administrator for the Corporation; (E) a present officer of the
Corporation; (F) an individual who has served at least five years as a director,
trustee or senior investment officer (or in a capacity comparable to any such
position) of an investment company (as defined under the Investment Company Act
of 1940, as amended, whether or not registered thereunder), the assets of which
during that period have been invested primarily in securities of one or more
Asia-Pacific Countries; and (G) an individual who has served at least five years
as a senior
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executive officer with responsibility for directing or managing the operations
in one or more Asia-Pacific Countries of a company with substantial operations
in such Asia-Pacific Country or Countries. The Nominating Committee of the Board
of Directors, in its sole discretion, shall determine whether an individual
satisfies the foregoing qualifications. Any individual who does not satisfy the
qualifications set forth under this subsection (c) shall not be eligible for
nomination or election as a director.
Section 3. Vacancies. If for any reason any or all the directors cease
to be directors, such event shall not terminate the Corporation or affect these
Bylaws or the powers of the remaining directors hereunder (even if fewer than
three directors remain). Pursuant to Section 3-804(c) of the MGCL, except as may
be provided by the Board of Directors in setting the terms of any class or
series of preferred stock, any vacancy on the Board of Directors may be filled
only by a majority of the remaining directors, even if the remaining directors
do not constitute a quorum. Any director elected to fill a vacancy shall serve
for the remainder of the full term of the class in which the vacancy occurred
and until a successor is elected and qualifies.
Section 4. Place of Meeting. The directors may hold their meetings,
have one or more offices, and keep the books of
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the Corporation, 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 5. 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.
Section 6. Special Meetings. 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. The person or persons authorized
to call special meetings of the Board of Directors may fix any place as the
place for holding any special meeting of the Board of Directors called by him or
them. The Board of Directors may provide, by resolution, the time and place for
the holding of special meetings of the Board of Directors without notice other
than such resolution.
Section 7 Notice. Notice of any special meeting of the Board of
Directors shall be delivered personally or by
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telephone, electronic mail, facsimile transmission, United States mail or
courier to each director at his or her business or residence address. Notice by
personal delivery, telephone, electronic mail or facsimile transmission shall be
given at least 24 hours prior to the meeting. Notice by United States mail shall
be given at least three days prior to the meeting. Notice by courier shall be
given at least two days prior to the meeting. Telephone notice shall be deemed
to be given when the director or his or her agent is personally given such
notice in a telephone call to which the director or his or her agent is a party.
Electronic mail notice shall be deemed to be given upon transmission of the
message to the electronic mail address given to the Corporation by the director.
Facsimile transmission notice shall be deemed to be given upon completion of the
transmission of the message to the number given to the Corporation by the
director and receipt of a completed answer-back indicating receipt. Notice by
United States mail shall be deemed to be given when deposited in the United
States mail properly addressed, with postage thereon prepaid. Notice by courier
shall be deemed to be given when deposited with or delivered to a courier
properly addressed. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the Board of Directors need be
stated in the notice, unless specifically required by statute or these Bylaws.
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Section 8. Organization. At each meeting of the Board of Directors, the
chairman of the board or, in the absence of the chairman, the vice chairman of
the board, if any, shall act as chairman. In the absence of both the chairman
and vice chairman of the board, the chief executive officer or in the absence of
the chief executive officer, the president or in the absence of the president, a
director chosen by a majority of the directors present, shall act as chairman.
The secretary or, in his or her absence, an assistant secretary of the
Corporation, or in the absence of the secretary and all assistant secretaries, a
person appointed by the chairman, shall act as secretary of the meeting.
Section 9. Quorum and Voting. 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 Charter or by these Bylaws. The
directors present at a meeting which has been duly called and convened may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough directors to leave less
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than a quorum. If enough directors have withdrawn from a meeting to leave less
than a quorum but the meeting is not adjourned, the action of the majority of
the directors still present at such meeting shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable law or the Charter.
Section 10. 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
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of the Executive Committee, the remaining members may appoint a member of the
Board of Directors to act in his place.
Section 11. Other Committees. The Board of Directors, by the
affirmative vote of a majority of the whole Board, may appoint from the
directors other committees that shall in each 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 12. 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 13. 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
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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 proceedings of the Board or such committee.
Section 14. 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 IV
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
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also in its discretion appoint assistant secretaries, assistant 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 offices,
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 Bylaws to be
executed, acknowledged or verified by two or more officers.
Section 2. Term of Office. The term of office of each officer shall be
one year and until his successor is elected and qualifies. If the Board of
Directors in its judgment finds that the best interests of the Corporation will
be served, 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. Such
resignation shall take effect upon delivery or at such later date specified
therein.
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
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duties as may from time to time be conferred by the Board of 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 V
Stock
-----
Section 1. Certificates. In the event that the Corporation issues
shares of stock represented by certificates, such certificates shall be signed
by the officers of the Corporation in the manner permitted by the MGCL and shall
contain the statements and information required by the MGCL. In the event that
the Corporation issues shares of stock without certificates, the Corporation
shall provide to holders of such
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shares a written statement of the information required by the MGCL to be
included on stock certificates.
Section 2. Transfer of Shares. Shares of the Corporation shall be
transferable on the books of the Corporation by the holder thereof in person or
by his duly authorized attorney or legal representative, upon surrender and
cancellation of 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. Closing of Transfer Books or Fixing of Record Date. The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any
case, shall not be prior to the close of business on the day the record date is
fixed and shall be not more than 90 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting or
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particular action requiring such determination of stockholders of record is to
be held or taken.
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 longer
than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting. If no record date is fixed and the stock transfer books are not
closed for the determination of stockholders, (a) the record date for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day on which the notice of
meeting is mailed or the 30th day before the meeting, whichever is the closer
date to the meeting; and (b) the record date for the determination of
stockholders entitled to receive payment of a dividend or an allotment of any
other rights shall be the close of business on the day on which the resolution
of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through
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the closing of the transfer books and the stated period of closing has expired
or (ii) the meeting is adjourned to a date more than 120 days after the record
date fixed for the original meeting, in either of which case a new record date
shall be determined as set forth herein.
Section 4. Stock Ledger. The stock ledger 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 5. Transfer Agents and Registrars. The Board of Directors may
from time to time appoint or remove transfer agents and/or registrars of
transfers of shares of stock of the Corporation, and it may appoint the same
person as both transfer agent and registrar. Upon any such appointment being
made, all certificates representing shares of capital stock thereafter issued
shall be countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless so
countersigned. If the same person shall be both transfer agent and registrar,
only one countersignature by such person shall be required.
Section 6. Lost, Stolen or Destroyed Certificates. The Board of
Directors or the Executive Committee may determine
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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 that may arise
by reason of the issue of a new certificate in the place of the one so lost,
stolen or destroyed.
ARTICLE VI
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 VII
Fiscal Year and Accountant
--------------------------
Section 1. Fiscal Year. The fiscal year of the 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
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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 VIII
Indemnification
---------------
To the maximum extent permitted by Maryland law in effect from time to
time, the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any individual who is a present or former director or officer of the
Corporation and who is made a party to the proceeding by reason of his or her
service in that capacity or (b) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served as a
director, officer, partner or trustee of another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or
other enterprise and who is made a party to the proceeding by reason of his or
her service in that capacity. The
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Corporation may, with the approval of its Board of Directors, provide such
indemnification and advance for expenses to a person who served a predecessor of
the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of the Bylaws or Charter inconsistent with this
Article, shall apply to or affect in any respect the applicability of the
preceding paragraph with respect to any act or failure to act that occurred
prior to such amendment, repeal or adoption.
Notwithstanding anything in the foregoing paragraphs of this Article to
the contrary, any indemnification or advancement of expenses shall be subject
to, and made in accordance with, applicable requirements of the Investment
Company Act of 1940, as amended.
ARTICLE IX
Custodian
---------
Section 1. Designation of Custodian, Subcustodians. The Corporation
shall have as custodian or custodians one or more 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
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Investment Company Act of 1940, as amended, 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 provided that the Corporation may use one or more subcustodians, 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 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.
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ARTICLE X
Waiver of Notice
----------------
Whenever any notice is required to be given pursuant to the Charter or
these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at nor the purpose of any meeting need be
set forth in the waiver of notice, unless specifically required by statute. The
attendance of any person at any meeting shall constitute a waiver of notice of
such meeting, except where such person attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
ARTICLE XI
Amendment of Bylaws
-------------------
The Board of Directors shall have the exclusive power to make, alter
and repeal the Bylaws of the Corporation.
