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SIGNATURE CATHERINE VACCA
TITLE DEPUTY MANAGER
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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THE AUSTRIA FUND, INC. EXHIBIT 77Q1(a)
811-5736
AMENDED AND RESTATED
BYLAWS OF
THE AUSTRIA FUND, INC.
(As amended and restated at a
meeting of the Board of Directors
on March 19, 1999, amended
at a meeting of the Board of
Directors on June 8, 1999 and
amended at a meeting of the
Board of Directors
on August 5, 1999.)
AMENDED AND RESTATED
BYLAWS
OF
THE AUSTRIA FUND, INC.
________________
ARTICLE I
Offices
Section 1. Principal Office in Maryland. The
Corporation shall have a principal office in the City of
Baltimore or at such other place as the Board of Directors may
designate in the State of Maryland.
Section 2. Additional Offices. The Corporation may
have additional offices at such places as the Board of Directors
may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meeting. Meetings of stockholders
shall be held at the principal executive office of the
Corporation or at other such place, within the United States, as
shall be set by the Board of Directors and stated in the notice
of meeting.
Section 2. Annual Meetings. Annual meetings of
stockholders shall be held on a date and at a time set from time
to time by the Board of Directors not less than 90 nor more than
120 days following the end of each fiscal year of the
Corporation, for the election of directors and the transaction of
any other business within the powers of the Corporation.
Section 3. Special Meetings. (a) General. The
chairman, president or Board of Directors may call a special
meeting of the stockholders. Subject to subsection (b) of this
Section 3, a special meeting of stockholders shall also be called
by the secretary of the Corporation upon the written request of
the stockholders entitled to cast not less than a majority of all
the votes entitled to be cast at such meeting.
(b) Stockholder Requested Special Meetings. (1) Any
stockholder of record seeking to have stockholders request a
special meeting shall, by sending written notice to the secretary
(the "Record Date Request Notice") by registered mail, return
receipt requested, request the Board of Directors to set 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 requested special
meeting and the matters proposed to be acted on at it, shall be
signed by one or more stockholders of record as of the date of
signature (or their duly authorized proxies or other agents),
shall bear the date of signature of each such stockholder (or
proxy 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 at the requested special
meeting is not involved), or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and Rule 14a-11
thereunder. Upon receiving the Record Date Request Notice, the
Board of Directors may set a Request Record Date. The Request
Record Date shall not precede and shall not be more than twenty
days after the close of business on the date on which the
resolution setting the Request Record Date is adopted by the
Board of Directors. If the Board of Directors, within twenty
days after the date on which a valid Record Date Request Notice
is received, fails to adopt a resolution setting the Request
Record Date and issue a public announcement of such Request
Record Date, the Request Record Date shall be the close of
business on the twentieth day after the first date on which the
Record Date Request Notice is actually received by the secretary.
(2) In order for any stockholder to request a
special meeting, one or more written requests for a special
meeting, signed by stockholders of record (or their duly
authorized proxies or other 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. In addition, the Special Meeting Request shall set
forth the purpose of the meeting and the matters proposed to be
acted on at the meeting (which shall be limited to the matters
set forth in the Record Date Request Notice received by the
secretary of the Corporation), shall bear the date of signature
of each such stockholder (or proxy or other agent) signing the
Special Meeting Request, shall set forth the name and address, as
they appear in the Corporation's books, of each stockholder
signing such request (or on whose behalf the Special Meeting
Request is signed) and the class and number of shares of stock of
the Corporation which are owned of record and beneficially by
each such stockholder, shall be sent to the secretary by
registered mail, return receipt requested, and shall be received
by the secretary within sixty 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 the special meeting (including the
Corporation's proxy materials). The secretary shall not be
required to call a special meeting upon stockholder request and
such meeting shall not be held unless, in addition to the
documents required by paragraph (2) of this Section 3(b), the
secretary receives payment of such reasonably estimated cost
prior to the mailing of any notice of the meeting.
(4) Except as provided in the next sentence, 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 the case of any special
meeting called by the secretary upon the request of stockholders
(a "Stockholder Requested Meeting"), if the Board of Directors
fails to set a record date for such meeting (the "Meeting Record
Date") that is a date within thirty days after the date that a
valid Special Meeting Request is actually received by the
secretary (the "Delivery Date"), then the close of business on
the thirtieth day after the Delivery Date shall be the Meeting
Record Date. In the case of any Stockholder Requested Meeting,
such 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
ninety days after the Meeting Record Date; and provided further
that if the Board of Directors fails to designate, within ten
days after 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 ninetieth day after the Meeting Record Date or,
if such ninetieth day is not a Business Day (as defined below),
on the immediately preceding Business Day; and provided further
that in the event that the Board of Directors fails to designate
a place for a Stockholder Requested Meeting within ten days after
the Delivery Date, then such meeting shall be held at the
principal executive offices of the Corporation. In setting 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 a meeting and any plan of the Board of Directors to call an
annual meeting or a special meeting.
(5) If at any time as a result of written
revocations of requests for a special meeting, stockholders of
record (or their duly authorized proxies or other agents) as of
the Request Record Date for the meeting entitled to cast less
than the applicable Special Meeting Request Percentage shall have
delivered and not revoked requests for the special meeting, 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 before ten days
prior to the meeting if the secretary has first sent to all other
requesting stockholders written notice of such revocation and of
the intention to revoke the notice of the meeting. Any request
for a special meeting received after a revocation by the
secretary of a notice of a meeting shall be considered a request
for a new special meeting.
(6) The chairman, president or Board of Directors
may appoint one or more 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 received by
the secretary until the earlier of (i) five Business Days after
actual receipt by the secretary of such purported request and
(ii) such date as the 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 Corporation 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).
(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 New York are
authorized or obligated by law or executive order to close.
Section 4. Notice of Meetings. Not less than ten nor
more than ninety 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 thereat who
is entitled to notice of the meeting written 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
his residence or usual place of business. If mailed, such notice
shall be deemed to be given when deposited in the United States
mail addressed to the stockholder at the stockholder's post
office address as it appears on the records of the Corporation,
with postage thereon prepaid.
Section 5. Scope of Notice. Subject to Section 7 of
this Article II of these Bylaws, any business of the Corporation
may be transacted at an annual meeting of the stockholders
without being specifically designated in the notice, except such
business as is required by any statute to be stated in such
notice. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the
notice thereof.
Section 6. Quorum. At any meeting of the
stockholders, the presence in person or by proxy of a majority of
the shares of stock of the Corporation entitled to vote thereat
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, a quorum shall not be present at any
meeting of the stockholders, the chairman of the meeting or the
stockholders entitled to vote at such meeting, present in person
or by proxy, shall have the 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 is present,
any business may be transacted which might have been transacted
at the meeting as originally notified.
Section 7. Nominations and Proposals by Stockholders.
(a) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be
made at an annual meeting of stockholders (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record both at the time of
giving of notice provided for in this Section 7(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 7(a).
(2) For nominations for election to the Board of
Directors 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 7, 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 offices of the Corporation by not later than the close
of business on the ninetieth day prior to the first anniversary
of the preceding year's annual meeting nor earlier than the close
of business on the 120th day prior to such first anniversary;
provided, however, that in the event that the date of the annual
meeting is advanced by more than thirty days or delayed by more
than sixty days from such anniversary date or if the Corporation
has not previously held an annual meeting, notice by the
stockholder to be timely must be so delivered not earlier than
the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall
the public announcement of a postponement or adjournment of an
annual meeting to a later date or time commence a new time period
for the giving of a stockholder's notice as described above. 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 all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the
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 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 books, and of such beneficial
owner and (y) the number of shares of each class of stock of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (a)(2) of this Section 7 to the contrary,
in the event that the number of directors to be elected to the
Board of Directors is increased and there is no public
announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required
by this Section 7(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 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 7(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 7(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 7 shall have been
delivered to the secretary at the principal executive offices of
the Corporation not earlier than the close of business on the
120th day prior to such special meeting and not later than the
close of business on the later of the ninetieth 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 7 and
Article III, Section 1(c) of these Bylaws 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 7. 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 7 and, if any proposed nomination or other
business is not in compliance with this Section 7, to declare
that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 7, "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 7, 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 7. Nothing in this Section 7 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 under the Exchange Act.
Section 8. Voting. A plurality of all the votes cast
at a meeting of stockholders duly called and at which a quorum is
present shall be sufficient to elect a director. Each share may
be voted for as many individuals as there are directors to be
elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before the
meeting, unless more than a majority of the votes cast is
required by express provision in law (including, in particular,
but not limited to, the Investment Company Act of 1940, as from
time to time in effect, or other statutes or rules or orders of
the Securities and Exchange Commission or any successor thereto)
or the Charter. Unless otherwise provided in the Charter, each
outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of
stockholders.
Section 9. Proxies. A stockholder may cast the votes
entitled to be cast by shares of stock owned by the stockholder
in person or by proxy executed by the stockholder or by the
stockholder's duly authorized agent in any manner permitted by
law. Such proxy shall be filed with the secretary of the
Corporation before or at the meeting, for as long as the polls
are open. No proxy is valid more than eleven months after its
date, unless otherwise provided in the proxy.
Section 10. Record Date. In order that the
Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders, to express consent to
corporate action in writing without a meeting, or to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may set, in advance,
a record date which shall not be before the close of business on
the day the record date is fixed and shall not be more than
ninety days and, in the case of a meeting of stockholders, not
less than ten days before the date on which the meeting or
particular action requiring such determination of stockholders is
to be taken. In lieu of setting a record date, the Board of
Directors may provide that the stock transfer books shall be
closed for a stated period, but not to exceed, in any case,
twenty 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 immediately before such meeting. If no record
date is fixed and the stock transfer books are not closed for the
determination of stockholders: (1) 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 notice of the meeting of stockholders is
mailed or the day thirty days before the meeting, whichever is
the closer date to the meeting; and (2) The record date for the
determination of stockholders entitled to receive payment of a
dividend or an allotment of any rights shall be at the close of
business on the day on which the resolution of the Board of
Directors, declaring the dividend or allotment of rights, is
adopted, provided that the payment or allotment date shall not be
more than sixty days after the date of the adoption of such
resolution. 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
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 11. Inspectors of Election. The directors, in
advance of any meeting, may, but need not, appoint one or more
individual inspectors or one or more entities that designate
individuals as inspectors to act at the meeting or any adjourn-
ment thereof. If an inspector or inspectors are not appointed,
the person presiding at the meeting may, but need not, appoint
one or more inspectors. In case any person who may be appointed
as an inspector fails to appear or act, the vacancy may be filled
by appointment made by the directors in advance of the meeting or
at the meeting by the person presiding thereat. Each inspector,
if any, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors, if any, shall
determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote
with fairness to all stockholders. Each such report shall be in
writing and signed by him or by a majority of them if there is
more than one inspector acting at such meeting. If there is more
than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on
the number of shares represented at the meeting and the results
of the voting shall be prima facie evidence thereof. On request
of the person presiding at the meeting or any stockholder, the
inspector or inspectors, if any, shall make a report in writing
of any challenge, question or matter determined by him or them
and execute a certificate of any fact found by him or them.
Section 12. Organization. At every meeting of
stockholders, the chairman of the board shall conduct the meeting
or, in the case of vacancy in office or absence of the chairman
of the board, one of the following officers present shall conduct
the meeting in the order stated: the vice chairman of the board,
if there be one, the president, the vice presidents in their
order of rank and seniority, or a chairman chosen by the
stockholders entitled to cast a majority of the votes which all
stockholders present in person or by proxy are entitled to cast,
shall act as chairman, and the secretary, or, in his absence, an
assistant secretary, or in the absence of both the secretary and
assistant secretaries, a person appointed by the chairman 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 other all
matters of procedure at any meeting of the stockholders shall be
determined by the chairman of the meeting. The chairman of any
meeting of the stockholders 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) maintaining order and security
at the meeting; (b) limiting attendance or participation 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) restricting admission to the time set
for the commencement of the meeting; and (d) limiting the time
allotted to questions or comments by participants. 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 13. Informal Action by Stockholders. Except
to the extent prohibited by the Investment Company Act of 1940,
as from time to time in effect, or rules or orders of the
Securities and Exchange Commission or any successor thereto, any
action required or permitted to be taken at any meeting of
stockholders may be taken without a meeting if a consent in
writing, setting forth such action, is signed by all the
stockholders entitled to vote on the subject matter thereof and
any other stockholders entitled to notice of a meeting of
stockholders (but not to vote thereat) have waived in writing any
rights which they may have to dissent from such action, and such
consent and waiver are filed with the records of the stockholders
meetings.
Section 14. Voting of Stock by Certain Holders. Stock
of the Corporation registered in the name of a corporation,
partnership, trust or other entity, if entitled to be voted, may
be voted by the president or a vice president, a general partner
or a trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who
has been appointed to vote such stock pursuant to a bylaw or a
resolution of the governing body of such corporation or other
entity or agreement of the partners of a partnership presents a
certified copy of such bylaw, resolution or agreement, in which
case such person may vote such stock. Any fiduciary may vote
stock registered in his name as such fiduciary, either in person
or by proxy.
Shares of stock of the Corporation directly or
indirectly owned by it shall not be voted at any meeting and
shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless
they are held by it in a fiduciary capacity, in which case they
may be voted and shall be counted in determining the total number
of outstanding shares at any given time.
The Board of Directors may adopt by resolution a
procedure by which a stockholder may certify in writing to the
Corporation that any shares of stock registered in the name of
the stockholder are held for the account of a specified person
other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose
for which the certification may be made, the form of
certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the
stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must
be received by the Corporation; and any other provisions with
respect to the procedure which the Board of Directors considers
necessary or desirable. On receipt of such certification, the
person specified in the certification shall be regarded as, for
the purposes set forth in the certification, the stockholder of
record of the specified stock in place of the stockholder who
makes the certification.
ARTICLE III
Board of Directors
Section 1. General. (a) Number. The number of
directors constituting the entire Board of Directors may be
increased or decreased from time to time by the vote of a
majority of the entire Board of Directors within the limits
permitted by law but at no time may there be more than twenty as
provided in the Charter, but the tenure of office of a director
in office at the time of any decrease in the number of directors
shall not be affected as a result thereof.
(b) Tenure. Beginning with the first annual meeting of
stockholders held after the initial public offering of the shares
of stock of the Corporation the Board of Directors shall be
divided into three classes. Within the limits above specified,
the number of directors in each class shall be determined by
resolution of the Board of Directors or by the stockholders at
the annual meeting thereof. The term of office of the first
class shall expire on the date of the annual meeting of
stockholders held one year after the initial annual meeting. The
term of office of the second class shall expire on the date of
the annual meeting of stockholders held two years after the
initial annual meeting. The term of office of the third class
shall expire on the date of the annual meeting of stockholders
held three years after the initial annual meeting. Upon
expiration of the term of office of each class as set forth
above, the number of directors in such class, as determined by
the Board of Directors, shall be elected for a term of three
years to succeed the directors whose terms of office expire. The
directors shall be elected at the annual meeting of stockholders,
except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is duly
elected and qualifies.
(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 Austria or an individual for
whom Austria has been a primary residence for at least four years
preceding the date of nomination as a director; (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 listed or traded on a securities exchange located
in Austria or (2) a securities exchange located in Austria; (C) a
present or former senior official of, or senior adviser to, any
ministry, department, agency or instrumentality of the Austrian
national government or of a provincial government in Austria; (D)
a present or former senior official of a city in Austria with a
population of at least 100,000; (E) a present or former member of
a national or provincial legislative body in Austria; (F) a
present or former senior official of a major political party in
Austria; (G) an attorney licensed to practice in Austria whose
practice involves to a substantial degree the representation of
publicly traded Austrian companies in commercial matters; (H) a
former judge of any court in Austria with jurisdiction over
commercial or corporate matters; (I) a present or former
ambassador or minister of another country to Austria, or consul
or economic, financial or commercial attache of another country
posted to Austria; (J) a present or former director or senior
executive officer of an investment advisor or sub-advisor of the
Corporation, or of any person controlling, or under common
control with, an advisor or sub-advisor of the Corporation; or
(K) a present officer of the Corporation. 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. Directors
need not be stockholders.
(d) Resignation. Any director may resign at any time
upon written notice to the Corporation.
Section 2. Vacancies and Newly-Created Directorships.
If for any reason any or all of the directors cease to be
directors, such circumstance shall not terminate the Corporation
or affect these Bylaws or the powers of any remaining directors
hereunder (even if fewer than three directors remain). Any
vacancy occurring in the Board of Directors for any cause other
than by reason of an increase in the number of directors may be
filled by a majority of the remaining members of the Board of
Directors although such majority is less than a quorum. Any
vacancy occurring by reason of an increase in the number of
directors may be filled by a majority of the entire board of
directors. A director elected by the Board of Directors to fill
a vacancy serves until the next annual meeting of stockholders
and his successor is elected and qualifies.
Section 3. Powers. The business and affairs of the
Corporation shall be managed under the direction of the Board of
Directors. All powers of the Corporation may be exercised by or
under the authority of the Board of Directors except as conferred
on or reserved to the stockholders by law or by the Charter or
these Bylaws.
Section 4. Annual Meeting. The annual meeting of the
Board of Directors shall be held immediately following the
adjournment of the annual meeting of stockholders and at the
place thereof. No notice of such meeting other than this Bylaw
to the directors shall be necessary in order legally to
constitute the meeting, provided a quorum shall be present. In
the event such meeting is not so held, the meeting may be held at
such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of
Directors.
Section 5. Other Meetings. The Board of Directors of
the Corporation or any committee thereof may hold meetings, both
regular and special. Special meetings of the Board of Directors
may be called by the chairman, the president or by two or more
directors. The Board of Directors may provide, by resolution, the
time and place for the holding of regular meetings of the Board
of Directors without other notice than such resolution. Notice
of any special meeting of the Board of Directors shall be
delivered personally or by telephone, facsimile transmission,
United States mail or courier to each director at his business or
residence address. Notice by personal delivery, by telephone, by
telegraph or by facsimile transmission shall be given at least
twenty-four hours prior to the meeting. Notice by mail shall be
given at least three days prior to the meeting and shall be
deemed to be given when deposited in the United States mail
properly addressed, with postage thereon prepaid. Telephone
notice shall be deemed to be given when the director or his agent
is personally given such notice in a telephone call to which he
or his agent is a party. 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.
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.
Section 6. Quorum and Voting. During such times when
the Board of Directors shall consist of more than one director, a
quorum for the transaction of business at meetings of the Board
of Directors shall consist of a majority of the entire Board of
Directors, but in no event shall a quorum consist of less than
two directors. If, however, pursuant to the Charter or these
Bylaws, the vote of a majority of a particular group of directors
is required for action, a quorum must also include a majority of
that group. The action of a majority of the directors present at
a meeting at which a quorum is present shall be the action of the
Board of Directors, unless the concurrence of a greater
proportion is required for such action by statute. If a quorum
shall not be present at any meeting of the Board of Directors, a
majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. The directors present
at a meeting which has been duly called and convened may continue
to transact business until adjournment, not withstanding the
withdrawal of enough directors to leave less than a quorum.
Section 7. Committees. The Board of Directors may
appoint from among its members an executive committee and other
committees of the Board of Directors, each committee to be
composed of one or more directors of the Corporation. The Board
of Directors may, to the extent provided in the resolution,
delegate to such committees, in the intervals between meetings of
the Board of Directors, any or all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, except the power to declare dividends, to issue
stock, to recommend to stockholders any action requiring
stockholders' approval, to amend the Bylaws or to approve any
merger or share exchange which does not require stockholders'
approval and except as otherwise prohibited by law. The Board of
Directors may designate a chairman of any committee, and such
chairman or any two members of any committee (if there are at
least two members of the Committee) may set the time and place of
its meeting unless the Board shall otherwise provide. However, a
meeting of any committee of the Board of Directors may not be
called without the consent of the chairman of the committee.
Such committee or committees shall have the name or names as may
be determined from time to time by resolution adopted by the
Board of Directors. Notice of Committee meetings shall be given
in the same manner as notice for special meetings of the Board of
Directors. Unless the Board of Directors designates one or more
directors as alternate members of any committee, who may replace
an absent or disqualified member at any meeting of the committee,
the members of any such committee present at any meeting and not
disqualified from voting may, whether or not they constitute a
quorum, appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member
of such committee. At meetings of any such committee, a majority
of the members or alternate members of such committee shall
constitute a quorum for the transaction of business and the act
of a majority of the members or alternate members present at any
meeting at which a quorum is present shall be the act of the
committee. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the
membership of any committee, to fill vacancies, to designate
alternate members to replace any absent or disqualified member or
to dissolve any such committee.
Section 8. Minutes of Meetings. The Board of
Directors and any committee thereof shall keep regular minutes of
its proceedings.
Section 9. Informal Action by Board of Directors and
Committees. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if a written consent thereto is
signed by each member of the Board of Directors or of such
committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board of Directors or
committee, provided, however, that such written consent shall not
constitute approval of any matter which pursuant to the
Investment Company Act of 1940 and the rules thereunder requires
the approval of directors by vote cast in person at a meeting.
Section 10. Meetings by Conference Telephone. The
members of the Board of Directors or any committee thereof may
participate in a meeting of the Board of Directors or committee
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 and such participation shall
constitute presence in person at such meeting, provided, however,
that such participation shall not constitute presence in person
to the extent deemed not to constitute presence in person for
purposes of those provisions of the Investment Company Act of
1940 and the rules thereunder requiring the approval of directors
by vote cast in person at a meeting.
Section 11. Fees and Expenses. The directors may be
paid their expenses of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors, a stated salary as director or
such other compensation as the Board of Directors may approve.
No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be
allowed like reimbursement and compensation for attending
committee meetings.
Section 12. Loss of Deposits. No director shall be
liable for any loss which may occur by reason of the failure of
any bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
Section 13. Surety Bonds. Unless required by law,
no director shall be obligated to give any bond or surety or
other security for the performance of any of his duties.
Section 14. Reliance. Each director, officer,
employee and agent of the Corporation shall, in the performance
of his duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records
of the Corporation, upon an opinion of counsel or upon reports
made to the Corporation by any of its officers or employees or by
the adviser, accountants, appraisers or other experts or
consultants selected by the Board of Directors or officers of the
Corporation, regardless of whether such counsel or expert may
also be a director.
Section 15. Certain Rights of Directors, Officers,
Employees and Agents. The directors shall have no responsibility
to devote their full time to the affairs of the Corporation. Any
director or officer, employee or agent of the Corporation, in his
personal capacity or in a capacity as an affiliate, employee, or
agent of any other person, or otherwise, may have business
interests and engage in business activities similar to or in
addition to or in competition with those of or relating to the
Corporation.
ARTICLE IV
Waiver of Notice
Whenever any notice is required to be given pursuant to
applicable law, the Charter or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed
the equivalent of notice and such waiver shall be filed with the
records of the meeting. 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 law. Attendance of a
person at any meeting shall constitute a waiver of notice of such
meeting except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened.
ARTICLE V
Officers
Section 1. General. The officers of the Corporation
shall be elected by the Board of Directors at its first meeting
after each annual meeting of stockholders and shall be a chairman
of the Board of Directors, a president, a secretary and a
treasurer. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as may be
convenient. The Board of Directors may elect also such vice
presidents and additional officers or assistant officers with
such powers and duties as it may deem necessary or advisable.
However the chairman of the board may appoint one or more vice
presidents, assistant secretaries and assistant treasurers. In
its discretion, the Board of Directors may leave unfilled any
office except that of president, secretary or treasurer. Any
number of offices, except the offices of president and vice
president, may be held concurrently by the same person. No
officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required by law to
be executed, acknowledged or verified by two or more officers.
Section 2. Other Officers and Agents. The Board of
Directors may elect such other officers and agents as it desires
who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from
time to time by the Board of Directors.
Section 3. Tenure, Removal, Resignation and Vacancies
of Officers. The officers of the Corporation shall hold office
at the pleasure of the Board of Directors. Election of an
officer or agent does not in itself create contract rights
between the Corporation and such officer or agent. Each elected
officer shall hold his office until his successor is elected and
qualifies or until his earlier resignation or removal, in the
manner hereinafter provided, or death. Any officer may resign at
any time upon written notice to the Corporation. Any resignation
shall take effect immediately or at any subsequent time specified
therein. The acceptance of a resignation shall not be necessary
to make it effective unless otherwise stated in the resignation.
Such resignation shall be without prejudice to the rights, if
any, of the Corporation. Any officer elected by the Board of
Directors or appointed by the chairman of the Board of Directors
may be removed at any time by the Board of Directors when, in its
judgment, the best interests of the Corporation will be served
thereby. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled by the
Board of Directors.
Section 4. Chairman of the Board of Directors. The
chairman of the Board of Directors shall preside at all meetings
of the stockholders and of the Board of Directors. He shall be
the chief executive officer, shall have general and active
management of the business of the Corporation, shall see that all
orders and resolutions of the Board of Directors are carried into
effect and shall perform other such duties as may be assigned to
him by the Board of Directors. In the absence or disability of
the president, the chairman shall perform the duties and exercise
the powers of the president. He shall be ex officio a member of
all committees designated by the Board of Directors except as
otherwise determined by the Board of Directors. He may execute
bonds, mortgages, contracts and other instruments, except where
required by law or by these Bylaws to be otherwise signed and
executed and except where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
Section 5. President. The president shall, in the
absence of the chairman, preside at all meetings of the
stockholders or of the Board of Directors. In the absence or
disability of the chairman, the president shall perform the
duties and exercise the powers of the chairman. He may execute
bonds, mortgages, contracts and other instruments, except where
required by law or by these Bylaws to be otherwise signed and
executed and except where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation. Additionally, the president
shall perform all duties incident to the office of president and
such other duties as shall be assigned to him by the Board of
Directors
Section 6. Vice Presidents. The vice presidents shall
act under the direction of the chairman and the president and in
the absence or disability of the chairman and the president shall
perform the duties and exercise the powers of both such offices.
They shall perform such other duties and have such other powers
as the chairman, the president or the Board of Directors may from
time to time assign. The Board of Directors may designate one
or more executive vice presidents or may otherwise specify the
order of seniority of the vice presidents and, in that event, the
duties and powers of the chairman and the president shall descend
to the vice presidents in the specified order of seniority.
Section 7. Secretary. The secretary shall act under
the direction of the chairman and the president. Subject to the
direction of the chairman or the president and except as provided
in Section 8 of this Article V, he shall (a) attend all meetings
of the Board of Directors and all meetings of stockholders and
record the proceedings in one or more books to be kept for that
purpose; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the
Corporation; and (d) in general perform such other duties as from
time to time may be assigned to him by the chairman of the Board
of Directors, the president or by the Board of Directors.
Section 8. Assistant Secretaries. The assistant
secretaries in the order of their seniority, unless otherwise
determined by the chairman, the president or the Board of
Directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary. If
an assistant secretary is unavailable to perform the duties and
exercise the powers of the secretary at a meeting of the Board of
Directors, the chairman of the Board of Directors or the
president may appoint another person to keep the minutes of the
meeting. The assistant secretaries shall perform such other
duties and have such other powers as the chairman, the president
or the Board of Directors may from time to time assign.
Section 9. Treasurer. The treasurer shall act under
the direction of the chairman and the president. Subject to the
direction of the chairman or the president he shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the chairman, the president or
the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the chairman, the president
and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his
transactions as treasurer and of the financial condition of the
Corporation.
Section 10. Assistant Treasurers. The assistant
treasurers in the order of their seniority, unless otherwise
determined by the chairman, the president or the Board of
Directors, shall, in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer.
They shall perform such other duties and have such other powers
as the chairman, the president or the Board of Directors may from
time to time assign.
Section 11. Salaries. The salaries and other
compensation of the officers, if any, shall be fixed from time to
time by the Board of Directors and no officer shall be prevented
from receiving such salary or other compensation by reason of the
fact that he is also a director.
ARTICLE VI
Certificates of Stock
Section 1. General. Every holder of stock of the
Corporation who has made full payment of the consideration for
such stock shall be entitled upon request to have a certificate,
signed by, the chairman of the Board of Directors, the president,
or a vice president and countersigned by the treasurer or an
assistant treasurer or the secretary or an assistant secretary of
the Corporation, certifying the number and class of whole shares
of stock owned by him in the Corporation. Certificates shall be
consecutively numbered; and if the Corporation shall, from time
to time, issue several classes of stock, each class may have its
own number series. Each certificate representing shares which
are restricted as to their transferability or voting powers,
which are preferred or limited as to their dividends or as to
their allocable portion of the assets upon liquidation or which
are redeemable at the option of the Corporation, shall have a
statement of such restriction, limitation, preference or
redemption provision, or a summary thereof, plainly stated on the
certificate. If the Corporation has authority to issue stock of
more than one class, the certificate shall contain on the face or
back a full statement or summary of the designations and any
preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of
redemption of each class of stock and, if the Corporation is
authorized to issue any preferred or special class in series, the
differences in the relative rights and preferences between the
shares of each series to the extent they have been set and the
authority of the Board of Directors to set the relative rights
and preferences of subsequent series. In lieu of such statement
or summary, the certificate may state that the Corporation will
furnish a full statement of such information to any stockholder
upon request and without charge. If any class of stock is
restricted by the Corporation as to transferability, the
certificate shall contain a full statement of the restriction or
state that the Corporation will furnish information about the
restrictions to the stockholder on request and without charge.
Section 2. Fractional Share Interests. The
Corporation may issue fractions of a share of stock to the same
extent as its whole shares. Fractional shares of stock shall
have proportionately to the respective fractions represented
thereby all the rights of whole shares, including without
limitation the right to vote, the right to receive dividends and
distributions, and the right to participate upon liquidation of
the Corporation, excluding, however, the right to receive a stock
certificate representing such fractional shares. Notwithstanding
any other provision of the Charter or these Bylaws, the Board of
Directors may issue units consisting of different securities of
the Corporation. Any security issued in a unit shall have the
same characteristics as any identical securities issued by the
Corporation, except that the Board of Directors may provide that
for a specified period securities of the Corporation issued in
such unit may be transferred on the books of the Corporation only
in such unit.
Section 3. Signatures on Certificates. Any of or all
the signatures on a certificate may be a facsimile. In case any
officer who has signed or whose facsimile signature has been
placed upon a certificate shall cease to be such officer before
such certificate is issued, it may be issued with the same effect
as if he were such officer at the date of issue. The seal of the
Corporation or a facsimile thereof may, but need not, be affixed
to certificates of stock.
Section 4. Lost, Stolen or Destroyed Certificates.
Any officer designated by the Board of Directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates previously issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making
of any affidavit of that fact by the person claiming the
certificate or certificates to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates,
an officer designated by the Board of Directors may, in his
discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate
or certificates, or the owner's legal representative, to
advertise the same in such manner as he shall require and/or to
give the Corporation a bond with sufficient security, to the
Corporation to indemnify it against any loss or claim which may
arise as a result of the issuance of the new security.
Section 5. Transfer of Shares. Upon surrender to the
Corporation or a transfer agent of the Corporation of a
certificate for shares of stock duly endorsed or accompanied by
proper evidence of succession, assignment or authority to
transfer, the Corporation shall record the transaction upon its
books, issue a new certificate to the person entitled thereto
upon request for such certificate, and cancel the old
certificate, if any. Notwithstanding the foregoing, transfers of
shares of any class of stock will be subject in all respects to
the Charter and all of the terms and conditions contained
therein.
Section 6. Registered Owners. The Corporation shall be
entitled to treat the holder of record of any share of stock as
the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such
share or on the part of any other person, whether or not it shall
have the express or other notice thereof, except as otherwise
provided by the laws of the State of Maryland. The Corporation
shall maintain at its principal office or at the office of its
transfer agent, an original or duplicate share ledger containing
the name and address of each stockholder and the number of shares
of each class held by such stockholder.
ARTICLE VII
Net Asset Value
The net asset value of a share of Common Stock of the
Corporation as at the time of a particular determination shall
be the quotient obtained by dividing the value at such time of
the net assets of the Corporation (i.e., the value of the assets
belonging to the Corporation less its liabilities exclusive of
capital and surplus) by the total number of shares of Common
Stock outstanding at such time, all determined and computed as
follows:
(1) The assets of the Corporation shall
be deemed to include (A) all cash on hand, on
deposit, or on call, (B) all bills and notes
and accounts receivable, (C) all securities
owned or contracted for by the Corporation,
other than shares of its own Common Stock,
(D) all interest accrued on any interest
bearing securities owned by the Corporation
and (E) all other property of every kind and
nature including prepaid expenses. Portfolio
securities for which market quotations are
readily available shall be valued at market
value. All other investment assets of the
Corporation, including restricted securities,
shall be valued in such manner as the Board
of Directors of the Corporation in good faith
shall deem appropriate to reflect such
securities' fair value.
(2) The liabilities of the Corporation
shall include (A) all bills and notes and
accounts payable, (B) all administrative
expenses payable and/or accrued (including
management and advisory fees payable and/or
accrued, including in the case of any
contingent feature thereof, an estimate based
on the facts existing at the time), (C) all
contractual obligations for the payment of
money or property, including any amounts
owing under contracts for the purchase of
securities and the amount of any unpaid
dividend declared upon the Corporation's
Common Stock, (D) all reserves, if any,
authorized or approved by the Board of
Directors for taxes, including reserves for
taxes at current rates based on any
unrealized appreciation in the value of the
assets of the Corporation and (E) all other
liabilities of the Corporation of whatsoever
kind and nature except liabilities
represented by outstanding capital stock and
surplus of the Corporation.
(3) For the purposes thereof
(A) Changes in the holdings of the
Corporation's portfolio securities shall be
accounted for on a trade date basis.
(B) Expenses, including management
and advisory fees, shall be included to date
of calculation.
In addition to the foregoing, the Board of Directors is
empowered, subject to applicable legal requirements, in its
absolute discretion, to establish other methods for determining
the net asset value of each share of Common Stock of the
Corporation.
ARTICLE VIII
Miscellaneous
Section 1. Reserves. There may be set aside out of
any assets of the Corporation available for dividends or other
distributions such sum or sums as the Board of Directors from
time to time, in its absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for such other
purpose as the Board of Directors shall determine to be in the
best interest of the Corporation, and the Board of Directors may
modify or abolish any such reserve.
Section 2. Dividends and Other Distributions.
Dividends and other distributions upon the stock by the
Corporation may, subject to the provisions of the Charter and of
the provisions of applicable law, be authorized by the Board of
Directors at any time. Dividends and other distributions may be
paid in cash, property or stock of the Corporation, subject to
the provisions of the Charter and of applicable law.
Section 3. Capital Gains Distributions. The amount
and number of capital gains distributions paid to the
stockholders during each fiscal year shall be determined by the
Board of Directors. Each such payment shall be accompanied by a
statement as to the source of such payment, to the extent
required by law.
Section 4. Checks and Drafts. All checks, drafts or
demands for the payment of money, notes or other evidence of
indebtedness issued in the name of the Corporation shall be
signed by such officer or officers or such other agent or agents
as the Board of Directors may from time to time designate.
Section 5. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of
Directors.
Section 6. Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Maryland." The seal
may be used by causing it or a facsimile thereof to be impressed
or affixed or in another manner reproduced. Whenever the
Corporation is permitted or required to affix its seal to a
document, it shall be sufficient to meet the requirements of any
law, rule or regulation relating to a seal to place the word
"(SEAL)" adjacent to the signature of the person authorized to
execute the document on behalf of the Corporation.
Section 7. Insurance Against Certain Liabilities. The
Corporation shall not bear the cost of insurance that protects or
purports to protect directors and officers of the Corporation
against any liabilities to the Corporation or its security
holders to which any such director or officer would otherwise be
subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his office.
Section 8. Contracts. The Board of Directors may
authorize any officer or agent to enter into any contract or to
execute and deliver any instrument in the name of and on behalf
of the Corporation and such authority may be general or confined
to specific instances. Any agreement, deed, mortgage, lease or
other document executed by an authorized person shall be valid
and binding upon the Board of Directors and upon the Corporation
when authorized or ratified by action of the Board of Directors.
Section 9. Deposits. All funds and assets of the
Corporation not otherwise employed shall be deposited from time
to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may
designate.
ARTICLE IX
Indemnification
Section 1. Indemnification of Directors and Officers
and Other Persons. The Corporation shall indemnify its directors
to the fullest extent that indemnification of directors is
permitted by the Maryland General Corporation Law. The
Corporation shall indemnify its current and former officers to
the same extent as its directors and to such further extent as is
consistent with law. The Corporation shall indemnify its current
and former directors and officers and those persons who, at the
request of the Corporation, serve or have served as a director,
officer, partner, trustee, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan against all expenses,
liabilities and losses (including attorneys' fees, judgments,
fines and amounts paid in settlement) reasonably incurred or
suffered by him in connection with being such a director, officer
or other person serving as described above. The indemnification
and other rights provided by this Article shall continue as to a
person who has ceased to be a director or officer and shall inure
to the benefit of the heirs, executors and administrators of such
a person. This Article shall not protect any such person against
any liability to the Corporation or to its security holders
thereof to which such person would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office
("disabling conduct").
Section 2. Advances. Any current or former director
or officer of the Corporation shall be entitled to advances from
the Corporation for payment of the reasonable expenses incurred
by him in connection with the matter as to which he may be
entitled to indemnification in the manner and, subject to the
conditions described below, to the fullest extent permissible
under the Maryland General Corporation Law. The current or
former director or officer shall provide to the Corporation a
written affirmation of his good faith belief that the standard of
conduct necessary for indemnification by the Corporation has been
met and a written undertaking by him or on his behalf to repay
any such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one
of the following additional conditions shall be met: (a) the
person seeking indemnification shall provide a security in form
and amount acceptable to the Corporation for his undertaking;
(b) the Corporation is insured against losses arising by reason
of the advance; or (c) a majority of a quorum of directors of the
Corporation who are neither "interested persons" as defined in
Section 2(a)(19) of the Investment Company Act of 1940, as
amended, nor parties to the proceeding ("disinterested non-party
directors"), or independent legal counsel, in a written opinion,
shall have determined, based on a review of facts readily
available to the Corporation at the time the advance is proposed
to be made, that there is reason to believe that the person
seeking indemnification will ultimately be found to be entitled
to indemnification.
Section 3. Procedure. At the request of any person
claiming indemnification under this Article, the Board of
Directors shall determine, or cause to be determined, in a manner
consistent with the Maryland General Corporation Law, whether the
standards required by this Article have been met.
Indemnification shall be made only following: (a) a final
decision on the merits by a court or other body before whom the
proceeding was brought that the person to be indemnified was not
liable by reason of disabling conduct or (b) in the absence of
such a decision, a reasonable determination, based upon a review
of the facts, that the person to be indemnified was not liable by
reason of disabling conduct by (i) the vote of a majority of a
quorum of disinterested non-party directors or (ii) an
independent legal counsel in a written opinion.
Section 4. Indemnification of Employees and Agents.
Employees and agents who are not officers or directors of the
Corporation may be indemnified, and reasonable expenses may be
advanced to such employees or agents, as may be provided by
action of the Board of Directors or by contract, subject to any
limitations imposed by the Investment Company Act of 1940.
Section 5. Other Rights. The Board of Directors may
make further provision consistent with law for indemnification
and advance of expenses to directors, officers, employees and
agents by resolution, agreement or otherwise. The
indemnification provided by this Article shall not be deemed
exclusive of any other right, with respect to indemnification or
otherwise, to which those seeking indemnification may be entitled
under any insurance or other agreement or resolution of
stockholders or disinterested directors or otherwise. The rights
provided to any person by this Article 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, officer, employee, or agent as provided above.
Section 6. Amendments. References in this Article are
to the Maryland General Corporation Law and to the Investment
Company Act of 1940 as from time to time amended. No amendment
of these Bylaws shall effect any right of any person under this
Article based on any event, omission or proceeding prior to the
amendment.
ARTICLE X
Amendments
The Board of Directors shall have the exclusive power
to make, alter and repeal Bylaws of the Corporation.
s: ..\ASUTRIA\nsar-exh77Q1a
MD_DOCS_A 1074276 v 6
48
MD_DOCS_A 1074276 v 6
On October 1, 1999, a complaint in a purported class
action on behalf of Fund stockholders, entitled Steiner v. Williams et al.,
99 Civ. 10186 (JSM), was filed in the U.S. District Court for the Southern
District of New York against the Fund and David H. Williams, John D. Carifa,
William H.M. De Gelsey, Reba W. Williams, Hellmut Longin, Peter Mitterbauer,
Peter Nowak, Reinhard Ortner, Andras Simor and Walter Wolfsberger, alleging
that the defendants have breached duties to stockholders under the Investment
Company Act of l940 and Maryland law by, among other things, (i) adopting
certain amendments to the Fund's Bylaws, including provisions increasing the
percentage of the Fund's outstanding shares which stockholders must own to
convene a special meeting of stockholders, fixing qualification requirements
for future independent Directors, and vesting exclusive authority to amend the
Bylaws with the Fund's Directors, (ii) expanding the size of the Board to allow
the appointment to the vacancies of individuals who were defeated for
reelection as Directors at the prior annual meeting of stockholders,
and (iii) failing to take action to open-end the Fund. The principal
relief sought by the plaintiff is that the Bylaw amendments complained
of be declared null and void, that the
defendants be ordered to take all appropriate steps to eliminate the Fund's
market value discount and obstacles to stockholder exercise of voting rights,
and that plaintiff be awarded his costs and attorneys' fees. The defendants
believe that the allegations in the complaint are entirely without merit.
1
Draft - 10/29/99
00250.000 #125941
