AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 2000
INVESTMENT COMPANY ACT FILE NO. 811-5983
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM N-2
REGISTRATION STATEMENT
UNDER THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 9
THE NEW GERMANY FUND, INC.
(Exact Name of Registrant as Specified in Charter)
31 West 52nd Street, New York, New York 10019
(Address of Principal Executive Offices)
(212) 474-7000
(Registrant's Telephone Number, including Area Code)
Robert R. Gambee
The New Germany Fund, Inc.
31 West 52nd Street
New York, New York 10019
(Name and Address of Agent for Service)
If any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with a dividend reinvestment plan, check
the following box. |_|
It is proposed that this filing will become effective when declared effective
pursuant to Section 8(c) of the Securities Act of 1933.
If appropriate, check the following box:
|_| this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
|_| This form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the same offering is -___.
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PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
Amended and rested By-laws of the Registrant, as adopted on January 31,
2000 by the Registrant's Board of Directors, is filed herewith as Exhibit 2.b.
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in The City of New York,
and State of New York, on the 3rd day of February, 2000.
THE NEW GERMANY FUND, INC. By /S/ JOSEPH CHEUNG
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Joseph Cheung
Chief Financial Officer
and Treasurer
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EXHIBIT INDEX
Exhibit No. Description Method of Filing
- ----------- ------------------------------------------- ----------------------
2.b. Amended and restated By-laws of the Filed herewith.
Registrant.
EXHIBIT 2.B.
The New Germany Fund, Inc.
(a Maryland corporation)
Bylaws
(Amended and Restated as of January 31, 2000)
ARTICLE I
Offices
Section 1. Principal Office. The principal office of The New Germany
Fund, Inc. (the "Corporation") shall be located at such place or places as the
Board of Directors may designate.
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 the business of the Corporation may require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. All meetings of the stockholders of the
Corporation shall be held at the principal office of the Corporation or at such
other place as may from time
<PAGE>
to time be set by the Board of Directors and stated in the notice of meeting.
Section 2. Annual Meetings. An annual meeting of the stockholders for
the election of directors and the transaction of any business within the powers
of the Corporation shall be held in the month of June each year on a date and at
the time set by the Board of Directors and stated in the notice of meeting.
Section 3. Special Meetings. (a) General. The President, Chief
Executive Officer 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 fix a record
date to determine the stockholders entitled to request a special meeting (the
"Request Record Date"). The Record Date Request Notice shall set forth the
purpose of the meeting and the matters proposed to be acted on at it, shall be
signed by one or more stockholders of record as of the date of signature (or
their duly
<PAGE>
authorized agents), shall bear the date of signature of each such stockholder
(or other agent) and shall set forth all information relating to each such
stockholder that must be disclosed in solicitations of proxies for election of
directors in an election contest (even if an election contest is not involved),
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder or pursuant to the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and the rules thereunder. Upon receiving the
Record Date Request Notice, the Board of Directors may fix a Request Record
Date. The Request Record Date shall not precede and shall not be more than ten
days after the close of business on the date on which the resolution fixing the
Request Record Date is adopted by the Board of Directors. If the Board of
Directors, within ten days after the date on which a valid Record Date Request
Notice is received, fails to adopt a resolution fixing the Request Record Date
and make a public announcement of such Request Record Date, the Request Record
Date shall be the close of business on the tenth day after the first date on
which the Record Date Request Notice is 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
<PAGE>
authorized agents) as of the Request Record Date entitled to cast not less than
a majority (the "Special Meeting Percentage") of all of the votes entitled to be
cast at such meeting (the "Special Meeting Request") shall be delivered to the
Secretary. In addition, the Special Meeting Request shall set forth the purpose
of the meeting and the matters proposed to be acted on at it (which shall be
limited to the matters set forth in the Record Date Request Notice received by
the Secretary), shall bear the date of signature of each such stockholder (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 60 days after the Request Record Date. Any requesting
stockholder may revoke his, her or its request for a special meeting at any time
by written revocation delivered to the Secretary.
(3) The Secretary shall inform the requesting stockholders of the
reasonably estimated cost of preparing and mailing the notice of meeting
(including the Corporation's proxy materials). The Secretary shall not be
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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
President, Chief Executive Officer 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"), 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 90 days after the record date for such meeting (the
"Meeting Record Date"); and provided further that if the Board of Directors
fails to designate, within ten days after the date that a valid Special Meeting
Request is actually received by the Secretary (the "Delivery Date"), a date and
time for a Stockholder Requested Meeting, then such meeting shall be held at
2:00 p.m. local time on the 90th day after the Meeting Record Date or, if such
90th day is not a Business Day (as defined below), on the first preceding
Business Day; and provided further that in the event that the Board of Directors
fails to designate a place for a
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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
fixing a date for any special meeting, the President, Chief Executive Officer or
Board of Directors may consider such factors as he, she or it deems relevant
within the good faith exercise of business judgment, including, without
limitation, the nature of the matters to be considered, the facts and
circumstances surrounding any request for meeting and any plan of the Board of
Directors to call an annual meeting or a special meeting. In the case of any
Stockholder Requested Meeting, if the Board of Directors fails to fix a Meeting
Record Date that is a date within 30 days after the Delivery Date, then the
close of business on the 30th day after the Delivery Date shall be the Meeting
Record Date.
(5) If at any time as a result of written revocations of requests
for the special meeting, stockholders of record (or their duly authorized
agents) as of the Request Record Date entitled to cast less than the Special
Meeting Percentage shall have delivered and not revoked requests for a 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 before the meeting if the Secretary
has first sent to all other requesting stockholders written notice of such
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revocation and of 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 of the Board of Directors, the President or the
Board of Directors may appoint regionally or nationally recognized independent
inspectors of elections to act as the agent of the Corporation for the purpose
of promptly performing a ministerial review of the validity of any purported
Special Meeting Request received by the Secretary. For the purpose of permitting
the inspectors to perform such review, no such purported request shall be deemed
to have been delivered to the Secretary until the earlier of (i) five Business
Days after receipt by the Secretary of such purported request and (ii) such date
as the independent inspectors certify to the Corporation that the valid requests
received by the Secretary represent at least a majority of the issued and
outstanding shares of stock that would be entitled to vote at such meeting.
Nothing contained in this paragraph (6) shall in any way be construed to suggest
or imply that the 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,
<PAGE>
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 of Stockholders. Not less than ten nor
more than 90 days before each meeting of stockholders, the Secretary shall give
to each stockholder entitled to vote at such meeting and to each stockholder not
entitled to vote who is entitled to notice of the meeting written or printed
notice stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which
the meeting is called, either by mail, presenting it to the stockholder
personally, leaving it at the stockholder's residence or usual place of business
or transmitting the notice to the stockholder in any other manner authorized by
law. If mailed, 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 upon the books of the Corporation. A meeting of
stockholders convened on the date for which it was called may be adjourned from
time to time and place to place
<PAGE>
without further notice to a date not more than 120 days after the original
record date.
Section 5. Scope of Notice. Any business of the Corporation may be
transacted at an annual meeting of stockholders without being specifically
designated in the notice, except such business as is required by any statute to
be stated in such notice. No business shall be transacted at a special meeting
of stockholders except as specifically designated in the notice.
Section 6. Quorum. At any meeting of stockholders, the presence in
person or by proxy of stockholders entitled to cast one-third of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the charter of the
Corporation for the vote necessary for the adoption of any measure. If, however,
such quorum shall not be present at any meeting of the stockholders, the
chairman of the meeting, in accordance with Section 12 of this Article II of
these Bylaws, 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
shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
<PAGE>
Section 7. 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 statute or by the charter of the Corporation. 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 8. Proxies. A stockholder may cast the votes entitled to be
cast by the shares of the stock owned of record by him, her or it either in
person or by proxy executed by the stockholder or the stockholder's duly
authorized agent in any manner authorized by law. Such proxy shall be filed with
the Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 9. 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
<PAGE>
be voted by the President or a Vice President, a general partner or 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 Director or other fiduciary may vote stock registered in his or
her 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
<PAGE>
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.
Section 10. Inspectors. At any meeting of stockholders, the chairman of
the meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
stockholders.
Each report of an inspector shall be in writing and signed by the
inspector 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
<PAGE>
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
Section 11. Presiding Officer - Stockholders Meetings. At every meeting
of stockholders, the Chairman of the Board, if there be one, shall conduct the
meeting or, in the case of vacancy in office or absence of the Chairman of the
Board, one of the following directors or officers present shall conduct the
meeting in the order stated: the Vice Chairman of the Board, if there be one,
the Chief Executive Officer, 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 or her
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.
Section 12. Conduct of Stockholders Meetings. The order of business and
all other matters of procedure at any meeting of stockholders shall be
determined by the chairman of the meeting. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the
discretion of such chairman, are appropriate for the proper conduct of the
meeting, including, without limitation, (a) restricting admission to the time
set for the commencement of the
<PAGE>
meeting; (b) limiting attendance at the meeting to stockholders of record of the
Corporation, their duly authorized proxies or other such persons as the chairman
of the meeting may determine; (c) limiting participation at the meeting on any
matter to stockholders of record of the Corporation entitled to vote on such
matter, their duly authorized proxies or other such persons as the chairman of
the meeting may determine; (d) limiting the time allotted to questions or
comments by participants; (e) maintaining order and security at the meeting; and
(f) recessing or adjourning the meeting to a later date and time and a place
announced at the meeting. Unless otherwise determined by the chairman of the
meeting, meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
THE FOLLOWING SECTION 13 IS EFFECTIVE UNTIL DECEMBER 31, 2000 AND SHALL
HAVE NO FORCE OR EFFECT AS OF JANUARY 1, 2001. Section 13. Advance Notice of
Stockholder Nominees for Director and Other Stockholder Proposals. (a) Annual
Meetings of Stockholders. (1) Nominations of persons for election to the Board
of Directors and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Corporation who was a stockholder
of
<PAGE>
record both at the time of giving of notice provided for in this Section 13(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 13(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 13, 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 the stockholders. 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 date of mailing of the notice for the
preceding year's annual meeting; provided, however, that in the event that the
date of mailing of the notice for the annual meeting is advanced or delayed by
more than 30 days from the first anniversary of the date of mailing of the
notice for the preceding year's annual meeting, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to the date of
mailing of the notice for such annual meeting and not later than the close of
business on the later of the 60th day prior to the date of mailing of the notice
for such annual meeting or the tenth day following the day on which disclosure
of
<PAGE>
the date of mailing of the notice for such meeting is first made. In no event
shall the public announcement of a postponement or adjournment of an annual
meeting commence a new time period for the giving of a stockholder's notice as
described above. 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, (A) the name, age, business address and residence address of such
person, (B) the class and number of shares of stock of the Corporation that are
beneficially owned by such person and (C) all other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or
any successor provision) under the Exchange Act or pursuant to the Investment
Company Act and the rules thereunder (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;
<PAGE>
and (iii) as to the stockholder giving the notice and each beneficial owner, if
any, on whose behalf the nomination or proposal is made, (x) the name and
address of such stockholder, as they appear on the Corporation's stock ledgers
and a current name and address, if different, and of such beneficial owner, and
(y) the class and number of shares of each class of stock of the Corporation
which are owned beneficially and of record by such stockholder and owned
beneficially by such beneficial owner.
(3) Notwithstanding anything in this subsection (a) of this
Section 13 to the contrary, in the event the Board of Directors increases or
decreases the maximum or minimum number of directors in accordance with Article
II, Section 1 of these Bylaws, and there is no public announcement of such
action at least 70 days prior to the first anniversary of the date of mailing of
the preceding year's annual meeting, a stockholder's notice required by this
Section 13(a) 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.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders
<PAGE>
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 13 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 13. 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 as a director
as specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph (a)(2) of this Section 13 shall be delivered to the
Secretary 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 first made of the date of
the special meeting and of the nominees
<PAGE>
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 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 13 and Article III, Section 3 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 13. The
chairman of the meeting shall have the power and duty to determine whether a
nomination or any 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 13 and, if any proposed nomination or business is not in compliance
with this Section 13, to declare that such defective nomination or proposal be
disregarded.
(2) For purposes of this Section 13, (a) the "date of mailing of
the notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of directors and (b) "public announcement" shall mean
disclosure (i) in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or (ii) in a document publicly filed
by the Corporation with the Securities and
<PAGE>
Exchange Commission pursuant to the Exchange Act or the Investment Company Act.
(3) Notwithstanding the foregoing provisions of this Section 13, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the Investment Company Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 13. Nothing in
this Section 13 shall be deemed to affect any right of stockholders to request
inclusion of proposals in, nor the right of the Corporation to omit a proposal
from, the Corporation's proxy statement pursuant to Rule 14a-8 (or any successor
provision) under the Exchange Act.
THE FOLLOWING SECTION 13 IS EFFECTIVE AS OF JANUARY 1, 2001. Section
13. Advance Notice of Stockholder Nominees for Director and Other Stockholder
Proposals. (a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record both at the time of giving of notice provided for in this
Section 13(a) and at the time of the annual meeting, who is
<PAGE>
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Section 13(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 13, 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 the stockholders. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 90 days nor more than 120
days prior to the first anniversary of the date of mailing of the notice for the
preceding year's annual meeting; provided, however, that in the event that the
date of mailing of the notice for the annual meeting is advanced or delayed by
more than 30 days from the first anniversary of the date of mailing of the
notice for the preceding year's annual meeting, notice by the stockholder to be
timely must be so delivered not earlier than the 120th day prior to the date of
mailing of the notice for such annual meeting and not later than the close of
business on the later of the 90th day prior to the date of mailing of the notice
for such annual meeting or the tenth day following the day on which disclosure
of the date of mailing of the notice for such meeting is first made. In no event
shall the public announcement of a postponement or
<PAGE>
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. 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, (A) the name, age, business address and
residence address of such person, (B) the class and number of shares of stock of
the Corporation that are beneficially owned by such person and (C) all other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest (even
if an election contest is not involved), or is otherwise required, in each case
pursuant to Regulation 14A (or any successor provision) under the Exchange Act
or pursuant to the Investment Company Act and the rules thereunder (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
<PAGE>
proposal is made, (x) the name and address of such stockholder, as they appear
on the Corporation's stock ledgers and a current name and address, if different,
and of such beneficial owner, and (y) the class and number of shares of each
class of stock of the Corporation which are owned beneficially and of record by
such stockholder and owned beneficially by such beneficial owner.
(3) Notwithstanding anything in this subsection (a) of this
Section 13 to the contrary, in the event the Board of Directors increases or
decreases the maximum or minimum number of directors in accordance with Article
II, Section 1 of these Bylaws, and there is no public announcement of such
action at least 100 days prior to the first anniversary of the date of mailing
of the preceding year's annual meeting, a stockholder's notice required by this
Section 13(a) 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.
(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
<PAGE>
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 13 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 13. 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 as a director as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (a)(2) of this
Section 13 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 120th day prior to such special
meeting and not later than the close of business on the later of the 90th day
prior to such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of 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
<PAGE>
adjournment of a special meeting 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 13 and Article III, Section 3 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 13. The
chairman of the meeting shall have the power and duty to determine whether a
nomination or any 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 13 and, if any proposed nomination or business is not in compliance
with this Section 13, to declare that such defective nomination or proposal be
disregarded.
(2) For purposes of this Section 13, (a) the "date of mailing of
the notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of directors and (b) "public announcement" shall mean
disclosure (i) in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or (ii) in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to the
Exchange Act or the Investment Company Act.
<PAGE>
(3) Notwithstanding the foregoing provisions of this Section 13, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the Investment Company Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 13. Nothing in
this Section 13 shall be deemed to affect any right of stockholders to request
inclusion of proposals in, nor the right of the Corporation to omit a proposal
from, the Corporation's proxy statement pursuant to Rule 14a-8 (or any successor
provision) under the Exchange Act.
Section 14. Voting by Ballot. Voting on any question or in any election
may be viva voce unless the chairman of the meeting shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors.
Section 2. Number and Tenure. The number of Directors shall be not less
than the minimum number required from time to time by the Maryland General
Corporation Law. Subject to the minimum number of directors described in the
immediately
<PAGE>
preceding sentence, the number of directors of the Corporation shall be fixed
only by a vote of the Board of Directors.
Section 3. Qualifications. Directors need not be stockholders. Each
Director shall hold office until the earlier of: (a) the expiration of his term
and his or her successor shall have been elected and qualifies, (b) his or her
death, (c) his or her resignation, (d) December 31 of the year in which he or
she shall have reached 70 years of age, or (e) his or her removal; provided that
clause (d) shall not apply to any person who was a Director on October 15, 1999
or to any person who the Nominating Committee (or in the absence of such a
Committee, the Board of Directors) determines to except from that clause on the
basis that the person's prior public or government service or other broad-based
activities in the business community make it essential that the Corporation
continue to receive the benefit of the person's services as a Director. The
determination described in the previous sentence shall be made on or before July
31 of the year in which the Director in question reaches the age specified in
clause (d). To be eligible for nomination as a director a person must, at the
time of such person's nomination, have Relevant Experience and Country Knowledge
(as defined below) and must not have any Conflict of Interest (as defined
below). Whether a proposed nominee satisfies the foregoing qualifications shall
be determined by the Nominating Committee or, in the
<PAGE>
absence of such a Committee, by the Board of Directors, each in
its sole discretion.
"Relevant Experience and Country Knowledge" means experience in
business, investment, economic or political matters of Germany or the United
States through service for 10 of the past 20 years (except where a shorter
period is noted) in one or more of the following principal occupations:
(1) senior executive officer or partner of a financial or
industrial business headquartered in Germany that has annual
revenues of at least the equivalent of US $500 million,
(2) senior executive officer or partner of a financial or
industrial business headquartered in the United States that
has annual revenues of at least the equivalent of US $500
million and whose management responsibilities include
supervision of European business operations,
(3) director (or the equivalent) for 5 of the past 10 years of
one or more investment businesses or vehicles (including
this Corporation) a principal focus of which is investment
in Germany and that have at least the equivalent of US $250
million in combined total assets of their own,
(4) senior executive officer or partner of an investment
management business having at least the equivalent of US
$500 million in securities of German companies or securities
principally traded in Germany under discretionary management
for others,
(5) senior executive officer or partner of a business
consulting, accounting or law firm
<PAGE>
having at least 100 professionals and (b) whose principal
responsibility involves or involved providing services
involving European matters for financial or industrial
businesses, investment businesses or vehicles or investment
management businesses as described in (1) - (4) above,
(6) senior official (including ambassador or minister) in the
national government, a government agency or the central bank
of Germany or the United States, in a major supranational
agency or organization of which Germany or the United States
is a member, or in a leading international trade
organization relating to Germany or the United States, in
each case in the area of finance, economics, trade or
foreign relations, or
(7) current director or senior officer (without regard to years
of service) of an investment manager or adviser of the
Corporation, or of any entity controlling or under common
control with an investment manager or adviser of the
Corporation.
"Conflict of Interest" means the presence of a conflict with the
interests of the Corporation or its operations through any of the following:
(1) current position as a director, officer, partner or employee
of another investment vehicle a significant (i.e., 25% or
more of total assets) focus of which is securities of German
companies or securities principally traded in German markets
and that does not have the same investment adviser as the
Corporation or an investment adviser affiliated with an
investment adviser of the Corporation,
(2) current position as a director, officer, partner or employee
of the sponsor or equivalent of an investment vehicle
described in the previous point, or
<PAGE>
(3) current position as an official of a governmental agency or
self-regulatory body having responsibility for regulating
the Corporation or the markets in which it proposes to
invest.
Section 4. Vacancies. Subject to the provisions of the Investment
Company Act, each vacancy on the Board of Directors of the Corporation may be
filled only by the affirmative vote of a majority of the remaining directors in
office, even if the remaining directors do not constitute a quorum. Any director
elected to fill a vacancy shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred and until a successor is
elected and qualifies.
Section 5. Place of Meeting. The Directors may hold their meetings,
have one or more offices, and keep the books of the Corporation at any office or
offices of the Corporation or at any other place as they may from time to time
by resolution determine, or in the case of meetings, as they may from time to
time by resolution determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
Section 6. Annual and Regular Meetings. The annual meeting of the Board
of Directors shall be held as soon as practicable after the annual meeting of
the stockholders. The Board of Directors may provide, by resolution, the time
and place, either within or without the State of Maryland, for the
<PAGE>
holding of regular meetings of the Board of Directors without other notice than
such resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the Chief Executive Officer, the
President, the Secretary or two or more Directors who are then appointed to the
Executive Committee.
Section 8. Notice. 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 or a facsimile transmission
shall be given at least two days prior to the meeting. Notice by mail shall be
given at least five 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
is personally given such notice in a telephone call to which he or she 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
<PAGE>
stated in the notice, unless specifically required by statute or
these Bylaws.
Section 9. Quorum and Voting. A majority of the Board of Directors then
in office shall constitute a quorum for the transaction of business, provided
that, if less than a majority of such Directors are present at said meeting, a
majority of the Directors present may adjourn the meeting from time to time
without further notice, and provided further that if, pursuant to the charter of
the Corporation 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 such
group. The action of the majority of the Directors present at any 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
applicable statute.
Section 10. Telephone Meetings. 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.
<PAGE>
Section 11. Informal Action by the Board of Directors. Any action
required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting, if a written consent to such action is signed by
each Director and such written consent is filed with the minutes of the
proceedings of the Board or such committee; provided that no such action by
written consent may be taken to approve or continue an investment advisory
contract pursuant to Section 15 of the Investment Company Act.
Section 12. Compensation of Directors. Directors shall be entitled to
receive such compensation from the Corporation for their services as may from
time to time be voted by the Board of Directors.
ARTICLE IV
Committees
Section 1. Number, Tenure and Qualifications. The Board of Directors
may appoint from among its members an Audit Committee and other committees,
composed of one or more Directors, to serve at the pleasure of the Board of
Directors. The Board of Directors may appoint from among its members an
Executive Committee composed of two or more Directors, to serve at the pleasure
of the Board of Directors.
<PAGE>
Section 2. Powers. The Board of Directors may
delegate to committees appointed under Section 1 of this Article
any of the powers of the Board of Directors, except as prohibited
by law.
Section 3. Meetings. Notice of committee meetings shall be
given in the same manner as notice for special meetings of the Board of
Directors. Except for the Executive Committee, a majority of the members of the
committee shall constitute a quorum for the transaction of business at any
meeting of the committee. Three, but in no event less than one-third, of the
Directors then appointed to the Executive Committee shall constitute a quorum
for the transaction of business at any meeting of the Executive Committee. The
act of a majority of the committee members present at a meeting shall be the act
of such committee. 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 fix the time and place of its meeting
unless the Board shall otherwise provide. In the absence of any member of any
such committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another Director to act in the place of such
absent member. Each committee shall keep minutes of its proceedings.
<PAGE>
Section 4. Telephone Meetings. Members of 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 5. Informal Action by Committees. Any action required or
permitted to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing to such action is signed
by each member of the committee and such written consent is filed with the
minutes of proceedings of such committee; provided that no such action by
written consent may be taken to approve or continue an investment advisory
contract pursuant to Section 15 of the Investment Company Act.
Section 6. Vacancies. 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 all vacancies, to designate alternate members to replace any
absent or disqualified member or to dissolve any such committee.
<PAGE>
ARTICLE V
Officers
Section 1. General Provisions. The officers of the Corporation shall
include a Chief Executive Officer, a President, a Secretary and a Treasurer and
may include a Chairman of the Board, a Vice Chairman of the Board, one or more
Vice Presidents, a Chief Operating Officer, a Chief Financial Officer, one or
more Assistant Secretaries and one or more Assistant Treasurers. In addition,
the Board of Directors may from time to time appoint such other officers with
such powers and duties as they shall deem necessary or desirable. The officers
of the Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of
stockholders, except that the Chief Executive Officer may appoint one or more
Vice Presidents, Assistant Secretaries and Assistant Treasurers. If the election
of officers shall not be held at such meeting, such election shall be held as
soon thereafter as may be convenient. Each officer shall hold office until his
or her successor is elected and qualifies or until his or her death, resignation
or removal in the manner hereinafter provided. Any two or more offices except
President and Vice President may be held by the same person. In its discretion,
the Board of Directors may leave unfilled any office except that of President,
Treasurer and Secretary. Election of an officer or
<PAGE>
agent shall not of itself create contract rights between the Corporation and
such officer or agent.
Section 2. Removal and Resignation. Any officer or agent of the
Corporation may be removed by the Board of Directors if in its judgment the best
interests of the Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer of the Corporation may resign at any time by giving written notice of
his or her resignation to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall become
effective is not specified therein, immediately upon its receipt. 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
contract rights, if any, of the Corporation.
Section 3. Vacancies. A vacancy in any office may be filled by the
Board of Directors for the balance of the term.
Section 4. Chairman of the Board. The Board of Directors shall
designate a Chairman of the Board. The Chairman of the Board shall preside over
the meetings of the Board of Directors and of the stockholders at which he or
she shall be present. The Chairman of the Board shall perform such other
<PAGE>
duties as may be assigned to him or her by the Board of
Directors.
Section 5. Chief Executive Officer. The Board of Directors may
designate a Chief Executive Officer. In the absence of such designation, the
Chairman of the Board shall be the Chief Executive Officer of the Corporation.
The Chief Executive Officer shall have general responsibility for implementation
of the policies of the Corporation, as determined by the Board of Directors, and
for the management of the business and affairs of the Corporation. He or she may
execute any deed, mortgage, bond, contract or other instrument, except in cases
where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed.
Section 6. President. The President shall have the responsibilities and
duties as set forth by the Board of Directors or, in the event that the offices
of Chief Executive Officer and President are not held by the same person, the
Chief Executive Officer.
Section 7. Chief Operating Officer. The Board of Directors may
designate a Chief Operating Officer. The Chief Operating Officer shall have the
responsibilities and duties as
<PAGE>
set forth by the Board of Directors or the Chief Executive
Officer.
Section 8. Chief Financial Officer. The Board of Directors may
designate a Chief Financial Officer. The Chief Financial Officer shall have the
responsibilities and duties as set forth by the Board of Directors or the Chief
Executive Officer.
Section 9. Vice Presidents. In the absence of the Chief Executive
Officer and the President or in the event of a vacancy in such office, the Vice
President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated at the time of their election or, in the
absence of any designation, then in the order of their election) shall perform
the duties of the Chief Executive Officer and the President and when so acting
shall have all the powers of and be subject to all the restrictions upon the
Chief Executive Officer and the President; and shall perform such other duties
as from time to time may be assigned to him by the President or by the Board of
Directors. The Board of Directors or the Chief Executive Officer may designate
one or more Vice Presidents as executive Vice President or as Vice President for
particular areas of responsibility.
<PAGE>
Section 10. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided 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; (d) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (e)
have general charge of the share transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by
the Chief Executive Officer, the President or by the Board of Directors.
Section 11. Treasurer. The Treasurer shall have the custody of the
funds and securities of the Corporation 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.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and Board of Directors, at the
regular meetings of the
<PAGE>
Board of Directors or whenever it may so require, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, moneys and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation.
Section 12. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries and Assistant Treasurers, in general, shall perform such
duties as shall be assigned to them by the Secretary or Treasurer, respectively,
or by the Chief Executive Officer or the Board of Directors. The Assistant
Treasurers shall, if required by the Board of Directors, give bonds for the
faithful performance of their duties in such sums and with such surety or
sureties as shall be satisfactory to the Board of Directors.
Section 13. Salaries. The salaries and other compensation of the
officers shall be fixed from time to time by the Board of Directors and no
officer shall be prevented from
<PAGE>
receiving such salary or other compensation by reason of the fact that he or she
is also a director.
ARTICLE VI
Contracts, Loans, Checks and Deposits
Section 1. 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 one or more of the directors or 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 2. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or agent of the
Corporation in such manner as shall from time to time be determined by the Board
of Directors.
Section 3. Deposits. All funds 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.
<PAGE>
ARTICLE VII
Stock
Section 1. Certificates for Shares. Each stockholder shall be entitled
to a certificate or certificates which shall represent and certify the number of
shares of each class of stock held by him in the Corporation. Each certificate
shall be signed by the Chief Executive Officer, the President or a Vice
President and countersigned by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer and may be sealed with the seal, if any, of
the Corporation. The signatures may be either manual or facsimile. 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.
A certificate is valid and may be issued whether or not an officer who signed it
is still an officer when it is issued. 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
<PAGE>
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. Transfers of Shares. Shares of the Corporation shall be
transferable on the books of the Corporation by the holder thereof in person or
by the person's 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
<PAGE>
require; in the case of shares not represented by certificates, the same or
similar requirements may be imposed by the Board of Directors. 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 express or other notice thereof,
except as otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the charter of the Corporation and all
of the terms and conditions contained therein.
Section 3. Stock Ledgers. An original or duplicate stock ledger of the
Corporation, containing the names and addresses of the stockholders and the
number of shares held by them respectively, shall be maintained 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. Lost, Stolen or Destroyed Certificates. Any officer
designated by the Board of Directors may direct a new certificate to be issued
in place of any certificate previously issued by the Corporation alleged to have
been lost, stolen or destroyed upon the making of an affidavit of that fact by
the
<PAGE>
person claiming the certificate to be lost, stolen or destroyed. When
authorizing the issuance of a new certificate, an officer designated by the
Board of Directors may, in his or her discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to advertise the same in such
manner as he or she shall require and/or to give bond, with sufficient surety,
to the Corporation to indemnify it against any loss or claim which may arise as
a result of the issuance of a new certificate.
Section 5. Closing of Transfer Books or Fixing of Record Date. The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any
case, shall not be prior to the close of business on the day the record date is
fixed and shall be not more than 90 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting or
particular action requiring such determination of stockholders of record is to
be held or taken.
<PAGE>
In lieu of fixing a record date, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not longer
than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not closed
for the determination of stockholders, (a) the record date for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting, and (b) the record date for the determination of stockholders entitled
to receive payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the directors,
declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (ii) the meeting is adjourned to a date
<PAGE>
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 6. Fractional Stock; Issuance of Units. The Board of Directors
may issue fractional stock or provide for the issuance of scrip, all on such
terms and under such conditions as they may determine. 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.
ARTICLE VIII
Corporate Seal
Section 1. In General. The Board of Directors may provide for a
suitable corporate seal, in such form and bearing such inscriptions as it may
determine.
Section 2. Affixing Seal. 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
<PAGE>
to the signature of the person authorized to execute the document
on behalf of the Corporation.
ARTICLE IX
Fiscal Year
The Board of Directors shall have the power, from time to time, to fix
the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE X
Distributions
Section 1. Authorization. Dividends and other distributions upon the
stock of the Corporation may be authorized by the Board of Directors, subject to
the provisions of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the Corporation, subject
to the provisions of law and the charter.
Section 2. Contingencies. Before payment of any dividends or other
distributions, 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 may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors
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shall determine to be in the best interest of the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE XI
Waiver of Notice
Whenever any notice is required to be given pursuant to the charter of
the Corporation or these Bylaws or pursuant to applicable law, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted at nor the purpose
of any meeting need be set forth in the waiver of notice, unless specifically
required by statute. The attendance of any person at any meeting shall
constitute a waiver of notice of such meeting, except where such person attends
a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE XII
Indemnification
The Corporation shall indemnify to the fullest extent permitted by law
(including the Investment Company Act) as
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currently in effect or as the same may hereafter be amended, any person made or
threatened to be made a party to any action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director or
officer of the Corporation or serves or served at the request of the Corporation
any other enterprise as a director or officer. To the fullest extent permitted
by law (including the Investment Company Act) as currently in effect or as the
same may hereafter be amended, expenses incurred by any such person in defending
any such action, suit or proceeding shall be paid or reimbursed by the
Corporation promptly upon receipt by it of an undertaking of such person to
repay such expenses if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation. The rights provided to any person
by this Article XII shall be enforceable against the Corporation by such person
who shall be presumed to have relied upon it in serving or continuing to serve
as a director or officer as provided above. No amendment of this Article XII
shall impair the rights of any person arising at any time with respect to events
occurring prior to such amendment. For purposes of this Article XII, the term
"Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed by
the Corporation in a consolidation or
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merger; the term "other enterprise" shall include any corporation, partnership,
joint venture, trust or employee benefit plan; service "at the request of the
Corporation" shall include service as a director or officer of the Corporation
which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan shall
be deemed to be indemnifiable expenses; and action by a person with respect to
any employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action not opposed to the best interests of the Corporation.
ARTICLE XIII
Custodian
Section 1. In General. The Corporation shall have as custodian or
custodians (including any sub-custodian) one or more trust companies or banks of
good standing which shall conform to the requirements of Section 17(f) of the
Investment Company Act and the rules promulgated thereunder. To the extent
required by the Investment Company Act and the rules promulgated thereunder, the
funds and securities held by the Corporation shall be kept in the custody of one
or more such custodians (and any sub-
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custodian), provided such custodian or custodians (and any sub-custodian) can be
found ready and willing to act.
Section 2. Resignation, Change or Inability to Serve. The Corporation
shall upon the resignation, change or inability to serve of its custodian (and
any sub-custodian):
(i) in case of such resignation or inability to serve, use its
best efforts to obtain a successor custodian;
(ii) require that the cash and securities owned by the Corporation
be delivered directly to the successor custodian; and
(iii) in the event that no successor custodian can be found,
submit to the stockholders before permitting delivery of the cash and
securities owned by the Corporation otherwise than to a successor
custodian, the question whether or not this Corporation shall be liquidated
or shall function without a custodian.
ARTICLE XIV
Amendment of Bylaws
The Bylaws of the Corporation may be altered, amended, added to or
repealed by a majority vote of the entire Board of
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Directors; the power to alter, amend, add to or repeal the Bylaws is vested
exclusively in the Board of Directors.
