Investment Company Act File No. 811-5571
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PRE-EFFECTIVE AMENDMENT NO. ___
POST-EFFECTIVE AMENDMENT NO. ___
AND/OR REGISTRATION STATEMENT
UNDER THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 19
-------------------------------
THE INDIA GROWTH FUND INC.
-------------------------------
(Exact Name of Registrant as Specified in Charter)
c/o Mitchell Hutchins Asset Management Inc.
Newport Center III
489 Washington Blvd.
14th Floor
Jersey City, New Jersey 07310
-------------------------------
(Address of Principal Executive Offices)
(201) 318-4141
-------------------------------
(Registrant's Telephone Number, Including Area Code)
Paul Schubert
The India Growth Fund Inc.
c/o Mitchell Hutchins Asset Management Inc.
489 Washington Blvd.
14th Floor
Jersey City, New Jersey 07310
-------------------------------
(Name and Address for Agent for Service)
With a copy to:
Laurence E. Cranch, Esq.
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
(212) 878-8000
<PAGE>
EXPLANATORY NOTE
This filing is made solely for the purpose of filing as an Exhibit the Amended
and Restated By-Laws of The India Growth Fund Inc. (the "Fund"). The Amended &
Restated By-Laws, adopted by the Board of Directors of the fund on July 7, 2000,
incorporate two recent amendments to the Fund's By-Laws. At the meeting of the
Board of Directors held on January 24, 2000, the Board approved an amendment to
the By-Laws which requires a stockholder who wishes to make a proposal at a
stockholders' meeting to give advance notice of the proposal. At the meeting of
the Board of Directors held on April 12, 2000, the Board approved an amendment
to Section 6 of the Fund's By-Laws which changed the quorum requirement for
stockholders' meetings from 1/3 of the shares entitled to vote thereat to a
majority of those shares, in order to conform with Maryland law.
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(1) Financial Statements
Contained in Part A
--Report of Independent Accountants
--Portfolio of Investments as of June 30, 1995
--Statement of Assets and Liabilities as of June 30, 1995
--Statement of Operations for the fiscal year ended June 30, 1995
--Statement of Changes in Net Assets for the fiscal years ended
June 30, 1994 and 1995
--Quarterly Results of Operations (unaudited)
--Financial Highlights for the fiscal years ended June 30, 1995,
1994, 1993, 1992 and 1991
--Notes to Financial Statements
Contained in Part B
--Not applicable
(2) Exhibits
(a) --Amended and Restated Articles of Incorporation
(b) --Amended & Restated Bylaws +++
(c) --Not applicable
(d)(1) --Specimen certificate for Common Stock, par value $.01 per share**
(d)(2) --Form of Exercise Form ++
(d)(3) --Form of Notice of Guaranteed Delivery ++
(d)(4) --Form of Nominee Holder Oversubscription Form ++
(d)(5) --Form of Beneficial Owner Certification ++
(d)(6) --Form of Subscription Agent Agreement ++
(d)(7) --Form of Information Agent Agreement +++
(e) --Form of Dividend Reinvestment and Cash Purchase Plan+
(f) --Not applicable
(g)(1) --Form of Unit Scheme Agreement between the Registrant and Unit
Trust of India ##
(g)(2) --Amendment Agreement to Unit Scheme Agreement, dated as of March
23, 1990 +
(g)(3) --Second Amendment Agreement to Unit Scheme Agreement, dated as of
February 25, 1991 +
(g)(4) --Form of Investment Advisory Agreement ##
<PAGE>
(h)(1) --Form of Dealer Manager Agreement ++
(h)(2) --Form of Soliciting Dealer Agreement ++
(i) --Not applicable
(j)(1) --Form of Custodian Agreement +
(j)(2) --Form of Indian Custodian Agreement, among the Registrant,
Citibank, N.A., Unit Trust of India and Brown Brothers
Harriman & Co. relating to the custody of the Registrant's
Indiana assets++
(k)(1) --Form of Transfer Agency and Registrar Agreement+
(k)(2) --Form of Administration Agreement+
(l)(1) --Opinion and consent of Rogers & Wells +++
(l)(2) --Opinion and consent of Piper & Marbury LLP +++
(m) --Not applicable
(n)(1) --Consent of Price Waterhouse LLP +++
(n)(2) --Opinion and Consent of Nishith Desai, Esq.
(o) --Not applicable
(p) --Form of Investment Letter #
(q) --Not applicable
(r) --Not applicable
----------------
* Incorporated by reference to Pre-Effective Amendment No. 2 to the Fund's
Registration Statement on Form N-2 filed on July 14, 1988 (File No.
33-22234).
** Incorporated by reference to Pre-Effective Amendment No. 3 to the Fund's
Registration Statement on Form N-2 filed on July 27, 1988 (File No.
33-22234).
# Incorporated by reference to Pre-Effective Amendment No. 5 to the Fund's
Registration Statement on Form N-2 filed on August 10, 1988 (File No.
33-22234).
## Incorporated by reference to Amendment No. 7 to the Fund's Registration
Statement on Form N-2 filed on October 30, 1989 (File No. 811-5571).
+ Incorporated by reference to Amendment No. 8 to the Fund's Registration
Statement on Form N-2 filed on October 30, 1990 (File No. 811-5571).
++ Incorporated by reference to Amendment No. 9 to the Fund's Registration
Statement on Form N-2 filed on October 25, 1991 (File No. 811-5571).
+ Incorporated by reference to Amendment No. 13 to the Fund's Registration
Statement on Form N-2 filed on March 7, 1994 (File No. 811-5571).
++ Incorporated by reference to Amendment No. 15 to the Fund's Registration
Statement on Form N-2 filed on October 11, 1995 (File No. 33-96618).
+++ Incorporated by reference to Amendment No. 16 to the Fund's Registration
Statement on Form N-2 filed on October 20, 1995 (File No. 33-96618).
+++ Filed herewith.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, as
amended, the Registrant has duly caused this Amendment to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mumbai, India on the 15th day of November, 2000.
THE INDIA GROWTH FUND INC.
By: /s/ P.S. Subramanyam
--------------------
P.S. Subramanyam
President and Chairman of the Board
<PAGE>
EXHIBIT
THE INDIA GROWTH FUND INC.
A MARYLAND CORPORATION
AMENDED AND RESTATED BY-LAWS
JULY 7, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I Stockholders...................................................................................1
Section 1. Place of Meeting.........................................................................1
Section 2. Annual Meetings..........................................................................1
Section 3. Special or Extraordinary Meetings........................................................1
Section 4. Notice of Meetings of Stockholders.......................................................2
Section 5. Record Dates.............................................................................2
Section 6. Quorum, Adjournment of Meetings..........................................................2
Section 7. Voting and Inspectors....................................................................3
Section 8. Conduct of Stockholders' Meetings........................................................3
Section 9. Concerning Validity of Proxies, Ballots, etc.............................................4
Section 10. Action without Meeting...................................................................4
Section 11. Matters To Be Acted On at Stockholders Meetings..........................................4
ARTICLE II Board of Directors.............................................................................7
Section 1. Number and Tenure of Office..............................................................7
Section 2. Vacancies................................................................................7
Section 3. Increase or Decrease in Number of Directors..............................................7
Section 4. Place of Meeting.........................................................................7
Section 5. Regular Meetings.........................................................................8
Section 6. Special Meetings; Waiver of Notice.......................................................8
Section 7. Quorum...................................................................................8
Section 8. Executive Committee......................................................................8
Section 9. Other Committees.........................................................................9
Section 10. Telephone Meetings.......................................................................9
Section 11. Action Without a Meeting.................................................................9
Section 12. Compensation of Directors................................................................9
ARTICLE III Officers......................................................................................10
Section 1. Executive Officers......................................................................10
Section 2. Term of Office..........................................................................10
Section 3. Powers and Duties.......................................................................10
Section 4. Surety Bonds............................................................................11
ARTICLE IV Capital Stock.................................................................................11
Section 1. Certificates for Shares.................................................................11
Section 2. Transfer of Shares......................................................................11
Section 3. Stock Ledgers...........................................................................11
Section 4. Transfer Agents and Registrars..........................................................11
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
<TABLE>
<CAPTION>
<S> <C>
Section 5. Lost Stolen or Destroyed Certificates...................................................12
ARTICLE V Corporate Seal................................................................................12
ARTICLE VI Fiscal Year And Accountant....................................................................12
Section 1. Fiscal Year.............................................................................12
Section 2. Accountant..............................................................................12
ARTICLE VII Indemnification...............................................................................13
ARTICLE VIII Custodian.....................................................................................13
Section 1. Designation of Custodian, Subcustodians.................................................13
Section 2. Termination of Custodian................................................................13
ARTICLE IX Amendment of By-Laws..........................................................................14
</TABLE>
ii
<PAGE>
THE INDIA GROWTH FUND INC.
Amended and Restated By-Laws
ARTICLE I
STOCKHOLDERS
Section 1. PLACE OF MEETING. All meetings of the stockholders shall be
held at the principal office of the Corporation in the State of Maryland or at
such other place within the United States as may from time to time be designated
by the Board of Directors and stated in the notice of such meeting.
Section 2. ANNUAL MEETINGS. The annual meeting of the stockholders of
the Corporation shall be held during the month of June, or such other month as
the Board of Directors may select, in 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 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.
<PAGE>
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 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 sixty 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 a majority 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
2
<PAGE>
present. At such adjourned meeting at which the requisite amount of stock
entitled to vote thereat shall be represented any business may be transacted
which might have been transacted at the meeting as originally notified.
Section 7. VOTING AND INSPECTORS. At all meetings, stockholders of
record entitled to vote thereat shall have one vote for each share of common
stock standing in his name on the books of the Corporation (and such
stockholders of record holding fractional shares, if any, shall have
proportionate voting rights) on the date for the determination of stockholders
entitled to vote at such meeting, either in person or by proxy appointed by
instrument in writing subscribed by such stockholder or his duly authorized
attorney.
All elections shall be had and all questions decided by a majority of
the votes cast at a duly constituted meeting, except as otherwise provided by
statute or by the Articles of Incorporation or by these By-Laws.
At any election of Directors, the. Chairman of the meeting may, and
upon the request of the holders of ten per cent (10%) of the stock entitled to
vote at such election shall, appoint two inspectors of election who shall first
subscribe an oath or affirmation to execute faithfully the duties of inspectors
at such election with strict impartiality and according to the best of their
ability, and shall after the election make a certificate of the result of the
vote taken. No candidate for the office of Director shall be appointed such
Inspector.
Section 8. CONDUCT OF STOCKHOLDERS' MEETINGS. The meetings of the
stockholders shall be presided over by the Chairman of the Board, or if he is
not present, by the President, or if he is not present, by a Vice-President, or
if none of them is present, by a Chairman to be elected at the meeting. The
Secretary of the Corporation, if present, shall act as a Secretary of such
meetings, or if he is not present, an Assistant Secretary shall so act; if
neither the Secretary nor the Assistant Secretary is present, then the meeting
shall elect its Secretary.
3
<PAGE>
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 with
the records of the meetings of stockholders. Such consent shall be treated for
all purposes as a vote at the meeting.
Section 11. MATTERS TO BE ACTED ON AT STOCKHOLDERS MEETINGS
(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 only if made (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 at
the time of giving of notice provided for in this Section 11(a), who is entitled
to vote at the meeting and who complied with the notice procedures set forth in
this Section 11(a).
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a)(1) of this Section 11, the stockholder must have given timely notice thereof
in writing to the secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the secretary at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by
4
<PAGE>
the stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and of the beneficial
owners, if any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owners, if any, on whose behalf
the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owners, if any, and (y) the class and number of shares of stock of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owners, if any.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 11 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 naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by paragraph (a)(2) of this Section 11 shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the Corporation.
5
<PAGE>
(b) SPECIAL MEETINGS OF STOCKHOLDERS.
(1) 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.
(2) 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 (x) has given timely notice
thereof meeting the requirements of Section 11(b)(3), (y) is a stockholder of
record at the time of giving of such notice, and (z) is entitled to vote at the
meeting.
(3) To be timely, a stockholder's notice referred to in Section
11(b)(2) must have been delivered to the secretary of the Corporation at the
principal executive offices of the Corporation not earlier than the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the tenth day following
the day on which public announcement is made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting. Such stockholder's notice shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A 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); and (ii) as to the stockholder giving the
notice and the beneficial owners, if any, on whose behalf the nomination or
proposal is made, (x) the name and address of such stockholder, as they appear
on the Corporation's books, and of such beneficial owners, if any, and (y) the
class and number of shares of stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owners, if
any.
6
<PAGE>
(c) DECLARATION REGARDING IMPROPER BUSINESS. The chairman of an annual
or special meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with the provisions of this Section 11, and if he should so determine, he shall
so declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
Section 1. NUMBER AND TENURE OF OFFICE. The business and affairs of
the Corporation shall be conducted and managed by a Board of Directors of not
less than three nor more than fourteen Directors, as may be determined from time
to time by vote of a majority of the Directors then in office. Directors 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 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.
7
<PAGE>
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 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
8
<PAGE>
powers of the Board of Directors in the management of the business and affairs
of the Corporation. The Executive Committee may fix its own rules of procedure,
and may meet when and as provided by such rules or by resolution of the Board of
Directors, but in every case the presence of a majority shall be necessary to
constitute a quorum. During the absence of a member of the Executive Committee,
the remaining members may appoint a member of the Board of Directors to act in
his place.
Section 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 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
9
<PAGE>
the preceding sentence, Directors shall be entitled to receive such compensation
from the Corporation for their services as may from time to time be voted by the
Board of Directors.
ARTICLE III
OFFICERS
Section 1. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be chosen by the Board of Directors as soon as may be
practicable after the annual meeting of the stockholders. These may include a
Chairman of the Board of Directors (who shall be a Director) and shall include a
President (who shall be a Director), one or more Vice-Presidents (the number
thereof to be determined by the Board of Directors), a Secretary and a
Treasurer. The Board of Directors or the Executive Committee may also in its
discretion appoint Assistant Secretaries, Assistant 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 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
10
<PAGE>
Company Act of 1940, as amended, and the rules and regulations of the Securities
and Exchange Commission) to the Corporation in such sum and with such surety or
sureties as the Board of Directors may determine, conditioned upon the faithful
performance of his duties to the Corporation, including responsibility for
negligence and for the accounting of any of the Corporation's property, fund or
securities that may come into his hands.
ARTICLE IV
CAPITAL STOCK
Section 1. CERTIFICATES FOR SHARES. Each stockholder of the
Corporation shall be entitled to a certificate or certificates for the full
shares of stock of the Corporation owned by him in such form as the Board may
from time to time prescribe.
Section 2. TRANSFER OF SHARES. Shares of the Corporation shall be
transferable on the books of the Corporation 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 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
11
<PAGE>
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.
ARTICLE V
CORPORATE SEAL
The Board of Directors may provide for a suitable corporate seal, in
such form and bearing such inscriptions as it may determine.
ARTICLE VI
FISCAL YEAR AND ACCOUNTANT
Section 1. FISCAL YEAR. The fiscal year of the Corporation, unless
otherwise ordered by the Board of Directors, shall begin on the first day of
July and shall end on the last day of June 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.
12
<PAGE>
ARTICLE VII
INDEMNIFICATION
The Corporation shall indemnify directors, officers, employees and
agents of the Corporation against judgments, fines, settlements and expenses to
the fullest extent authorized and in the manner permitted, by applicable federal
and state law.
ARTICLE VIII
CUSTODIAN
Section 1. DESIGNATION OF CUSTODIAN, SUBCUSTODIANS. The Corporation
shall have as custodian or custodians one or more 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 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.
13
<PAGE>
ARTICLE IX
AMENDMENT OF BY-LAWS
The By-Laws of the Corporation may be altered, amended, added to or
repealed by the stockholders or by majority vote of the entire Board of
Directors; but any such alteration, amendment, addition or repeal of the By-Laws
by action of the Board of Directors may be altered or repealed by stockholders.
