AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 27, 1998
INVESTMENT COMPANY ACT FILE NO. 811-5082
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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. 9
THE MALAYSIA FUND, INC.
(Exact Name of Registrant as Specified in Charter)
1221 Avenue of the Americas
New York, New York 10020
(Address of Principal Executive Offices)
(212) 762-7500
(Registrant's Telephone Number, including Area Code)
Harold J. Schaaff, Jr., Esq.
The Malaysia Fund, Inc.
Morgan Stanley Asset Management Inc.
1221 Avenue of the Americas, 22nd Floor
New York, New York 10020
(Name and Address of Agent for Service)
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EXPLANATORY NOTE
This filing is made solely for the purpose of filing as an Exhibit the
amended By-Laws of The Malaysia Fund, Inc.
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PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
Registrant's By-Laws, as amended by the Board of Directors through June
24, 1998, are filed herewith as Exhibit 2.b.
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this amendment to its Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in The City
of New York, and State of New York, on the 27th day of August 1998.
THE MALAYSIA FUND, INC. By /s/ STEFANIE V. CHANG
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Stefanie V. Chang
Vice President
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EXHIBIT INDEX
Exhibit No. Description Method of Filing
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2.b. By-Laws of the Registrant, as amended by the Filed herewith.
Board of Directors through June 24, 1998.
EXHIBIT 2.b.
THE MALAYSIA FUND, INC.
BY-LAWS
ARTICLE I
STOCKHOLDERS
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Section 1. Place of Meeting. All meetings of the stockholders shall be
held at the principal office of the Corporation in the State of Maryland or at
such other place within the United States as may from time to time be designated
by the Board of Directors and stated in the notice of such meeting.
Section 2. Annual Meetings. The annual meeting of the stockholders of
the Corporation shall be held during the first six months 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 or Extraordinary Meetings. Special or extraordinary
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 shall be called by the Secretary upon receipt of the request in writing
signed by stockholders holding not less than 25% of the common stock issued and
outstanding and entitled to vote thereat. Such request shall state the purpose
or purposes of the proposed meeting. The Secretary shall inform such
stockholders of the reasonably estimated costs of preparing and mailing such
notice
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of meeting and upon payment to the Corporation of such costs, the Secretary
shall give notice stating the purpose or purposes of the meeting as required in
this Article and by-law to all stockholders entitled to notice of such meeting.
No special meeting need be called upon the request of the holders of shares
entitled to cast less than a majority of all votes entitled to be cast at such
meeting to consider any matter which is substantially the same as a matter voted
upon at any special meeting of stockholders held during the preceding twelve
months.
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 or extraordinary 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.
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
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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; and only stockholders of record on such date shall be entitled
to notice of and to vote at such meeting or 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 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
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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 (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 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 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
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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.
(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
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if 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 60 nor more than 90 days prior to the first anniversary date of the annual
meeting for the preceding year; provided, however, that, 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 60
days prior to such Other 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 corre-
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sponding provisions of any regulation or rule 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, such stockholder's
name and address; and (iii) 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 and a brief written statement
of the reasons why such stockholder favors the proposal and setting forth 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
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,
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securities at the meeting of stockholders. As used herein, shares "beneficially
owned" shall mean all shares which 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 70 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 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)
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as specified in the Corporation's notice of meeting, if the Stockholder Notice
required by clause (b) of this Section 11 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 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
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given, shall direct and declare at the meeting that such nominees and other
matters shall not be considered.
ARTICLE II
BOARD OF DIRECTORS
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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 need not
be stockholders.
Section 2. 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 or until his successor is chosen
and qualifies.
Section 3. Increase or Decrease in Number of Directors. The Board of
Directors, by the vote of a majority of 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
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Board, may likewise decrease the number of Directors to a number not less than
three.
Section 4. 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, 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; Waiver 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 writing executed
and filed with the records of the meeting either before or after the holding
thereof, waives
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such notice. Such notice or waiver of notice need not state the purpose or
purposes of such meeting.
Section 7. Quorum. One-third 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.
Section 8. 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
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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 9. 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 case consist of such number of Directors (not
less than two) and shall have and may exercise such powers as 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 10. 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 11. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of
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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 proceedings of the Board or such committee.
Section 12. Compensation of Directors. No Director 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, as
amended) of the Corporation or of its investment manager 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.
Section 13. Classes of Directors. The Directors shall be divided into
three classes, designated Class I, Class II and Class III. All classes shall be
as nearly equal in number as possible; any new Director elected to fill a
vacancy on the Board of Directors shall belong to the same class as his
predecessor. The terms of office of the Directors initially classified shall be
as follows: at the 1989 annual meeting of stockholders, Class I Directors shall
be elected for a one-year term expiring at the 1990 annual meeting of
stockholders, Class II Directors for a two-year term expiring at the 1991 annual
meeting of stockholders and Class III Directors for a three-year term expiring
at the
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1992 annual meeting of stockholders. At each annual meeting of stockholders
after the 1989 annual meeting, Directors who are elected to replace those whose
terms expire at such annual meeting shall be elected to hold office until the
third succeeding annual meeting. Each Director shall hold office until the
expiration of his term and until his successor shall have been elected and
qualified.
Section 14. Selection and Nomination of Non-Interested Directors.
Subject to approval by a majority of the directors of the Corporation, the
directors of the Corporation who are not interested persons of the Corporation
(as that term is defined in the Investment Company Act of 1940, as amended)
shall select and nominate the directors of the Corporation who are not
interested persons of the Corporation.
ARTICLE III
OFFICERS
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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 may include a
Chairman of the Board of Directors (who shall be a Director) and shall include a
President, 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 Treasurers and other officers, agents and employees, who
shall
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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 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 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
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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
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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 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 of 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
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stockholders and the number of shares held by them respectively, shall be kept
at the principal offices of the Corporation or, if the Corporation employs a
Transfer Agent, at the offices of the Transfer Agent of the Corporation.
Section 4. Transfer Agents and Registrars. The Board of Directors may
from time to time appoint or remove transfer agents and/or registrars of
transfers of shares of stock of the Corporation, and it may appoint the same
person as both transfer agent and registrar. Upon any such appointment being
made all certificates representing shares of capital stock thereafter issued
shall be countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless so
countersigned. If the same person shall be both transfer agent and registrar,
only one countersignature by such person shall be required.
Section 5. 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, to indemnify it and each such Transfer Agent
against any and all loss 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.
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ARTICLE V
CORPORATE SEAL
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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
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Section 1. Fiscal Year. The fiscal year of the Corporation, unless
otherwise ordered by the Board of Directors, shall 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 Accountants
to examine the accounts of the Corporation and to sign and certify financial
statements filed by the Corporation. The employment of the Accountant shall be
conditioned upon the right of the Corporation to terminate the employment
forthwith without any penalty by vote of a majority of the outstanding voting
securities at any stockholders' meeting called for that purpose.
ARTICLE VII
INDEMNIFICATION
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Section 1. General. The Corporation shall indemnify directors,
officers, employees and agents of the Corporation against judgments, fines,
settlements and expenses to the fullest
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extent authorized and in the manner permitted, by applicable federal and state
law.
Section 2. Indemnification of Directors and Officers. The Corporation
shall indemnify to the fullest extent permitted by law (including the Investment
Company Act of 1940) as currently in effect or as the same may hereafter be
amended, any person made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that such person or such person's testator or intestate is or was a
director or officer of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director or officer. To the fullest extent
permitted by law (including the Investment Company Act of 1940) as currently in
effect or as the same may hereafter be amended, expenses incurred by any such
person in defending any such action, suit or proceeding shall be paid or
reimbursed by the Corporation promptly upon receipt by it of an undertaking of
such person to repay such expenses if it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation. The rights
provided to any person by this Article VII shall be enforceable against the
Corporation by such person who shall be presumed to have relied upon it in
serving or continuing to serve as a director or officer as provided above. No
amendment of this Article VII shall impair the rights of any person arising at
any time with respect to events occurring prior to such amendment. For
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purposes of this Article VII, the term "Corporation" shall include any
predecessor of the Corporation and any constituent corporation (including any
constituent of a constituent) absorbed by the Corporation in a consolidation or
merger; the term "other enterprise" shall include any corporation, partnership,
joint venture, trust or employee benefit plan; service "at the request of the
Corporation" shall include service as a director or officer of the Corporation
which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan shall
be deemed to be indemnifiable expenses; and action by a person with respect to
any employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action not opposed to the best interests of the Corporation.
ARTICLE VIII
CUSTODIAN
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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 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
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custodians can be found ready and willing to act, and further provided that the
Corporation may use as 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.
ARTICLE IX
ACTIONS TO ELIMINATE DISCOUNT
-----------------------------
If for a fiscal quarter during or after the fifth year following the
initial public offering of shares of the Fund, the average discount from net
asset value at which shares of the Fund's Common Stock trade is substantial, as
determined by the Board of Directors, the Board of Directors shall consider, at
its
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next regularly scheduled quarterly meeting, taking various actions designed to
eliminate the discount, including, but not limited to, periodic repurchases of
shares or amendments to the Fund's Articles of Incorporation to convert the Fund
to an open-end investment company.
ARTICLE X
AMENDMENT OF BY-LAWS
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The By-Laws of the Corporation may be altered, amended, added to or
repealed only by majority vote of the entire Board of Directors.
As amended by the Board of Directors
through June 24, 1998
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