As filed with the Securities and Exchange Commission on October 15, 1999
File No. 811-06342
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
Amendment No. 4
THE FIRST COMMONWEALTH FUND, INC.
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Registrant's Telephone Number, including Area Code: (609) 282-4600
Sander M. Bieber, Esq.
Dechert Price & Rhoads
1775 Eye Street, N.W.
Washington, DC 20006
(202) 261-3308
(Name and Address of Agent for Service)
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Part C
Registrant's Amended and Restated By-Laws, as adopted by Registrant's
Board of Directors by unanimous written consent effective August 27, 1999, are
filed herewith as Exhibit 2(b)(2).
Registrant's Amended and Restated Management Agreement, dated September
9, 1999, as adopted by Registrant's Board of Directors on September 9, 1999, is
filed herewith as Exhibit 2(g)(3).
Power of Attorney filed herewith as Exhibit 2(s)(2).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this Amendment No. 4 to its Registration Statement
under the Investment Company Act of 1940 to be signed on its behalf by the
undersigned thereunto duly authorized, in the District of Columbia, on the 15th
day of October, 1999.
THE FIRST COMMONWEALTH FUND, INC.
Brian M. Sherman
Chairman
By: /s/Sander M. Bieber
-------------------------
Sander M. Bieber
As Attorney-in-Fact
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EXHIBIT INDEX
Exhibit No. Description
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2(b)(2) Amended and Restated By-Laws
2(g)(3) Amended and Restated Management Agreement
2(s)(2) Power of Attorney
THE FIRST COMMONWEALTH FUND, INC.
A Maryland Corporation
BY-LAWS
Amended and Restated
as of August 27, 1999
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TABLE OF CONTENTS
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Page
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ARTICLE I NAME OF CORPORATION, LOCATION OF OFFICES AND SEAL..............................................1
Section 1. Name....................................................................................1
Section 2. Principal Offices.......................................................................1
Section 3. Seal....................................................................................1
ARTICLE II STOCKHOLDERS..................................................................................1
Section 1. Place of Meeting........................................................................1
Section 2. Annual Meetings.........................................................................2
Section 3. Special Meetings........................................................................2
Section 4. Notice of Meetings......................................................................2
Section 5. Quorum; Adjournment of Meetings.........................................................3
Section 6. Voting and Inspector....................................................................3
Section 7. Stockholders Entitled to Vote...........................................................4
Section 8. Validity of Proxies, Ballots............................................................5
Section 9. Conduct of Stockholders' Meetings.......................................................5
Section 10. Action Without a Meeting................................................................6
Section 11. Stockholder Proposals...................................................................6
ARTICLE III BOARD OF DIRECTORS...........................................................................9
Section 1. Powers..................................................................................9
Section 2. Number..................................................................................9
Section 3. Election................................................................................9
Section 4. Place of Meeting........................................................................9
Section 5. Annual and Regular Meetings.............................................................10
Section 6. Special Meetings........................................................................10
Section 7. Waiver of Notice........................................................................10
Section 8. Quorum and Voting.......................................................................11
Section 9. Action Without a Meeting................................................................11
Section 10. Compensation of Directors...............................................................11
ARTICLE IV COMMITTEES....................................................................................11
Section 1. Organization............................................................................11
Section 2. Proceedings and Quorum..................................................................12
ARTICLE V OFFICERS.......................................................................................12
Section 1. General.................................................................................12
Section 2. Election, Tenure and Qualifications.....................................................13
Section 3. Removal and Resignation.................................................................13
Section 4. President...............................................................................13
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Section 5. Chairman ...............................................................................14
Section 6. Vice President..........................................................................14
Section 7. Treasurer and Assistant Treasurers......................................................14
Section 8. Secretary and Assistant Secretaries.....................................................15
Section 9. Subordinate Officers....................................................................15
Section 10. Remuneration............................................................................15
Section 11. Surety Bonds............................................................................16
ARTICLE VI CAPITAL STOCK.................................................................................16
Section 1. Certificates of Stock...................................................................16
Section 2. Transfer of Shares......................................................................16
Section 3. Stock Ledgers...........................................................................17
Section 4. Transfer Agents and Registrars..........................................................17
Section 5. Fixing of Record Date...................................................................17
Section 6. Lost, Stolen or Destroyed Certificates..................................................17
ARTICLE VII INDEMNIFICATION..............................................................................18
Section 1. Indemnification of Directors, Officers, Employees and Agents............................18
ARTICLE VIII AMENDMENTS..................................................................................20
Section 1. General.................................................................................20
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BY-LAWS
THE FIRST COMMONWEALTH FUND, INC.
(A MARYLAND CORPORATION)
ARTICLE I
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NAME OF CORPORATION, LOCATION OF
OFFICES AND SEAL
----------------
Section 1. Name. The name of the Corporation is The First Commonwealth Fund,
Inc.
Section 2. Principal Offices. The principal office of the Corporation in the
State of Maryland shall be located in Baltimore, Maryland. The Corporation may,
in addition, establish and maintain such other offices and places of business as
the Board of Directors may, from time to time, determine.
Section 3. Seal. The corporate seal of the Corporation shall be circular in form
and shall bear the name of the Corporation, the year of its incorporation, and
the word "Maryland." The form of the seal shall be subject to alteration by the
Board of Directors and the seal may be used by causing it or a facsimile to be
impressed or affixed or printed or otherwise reproduced. Any officer or Director
of the Corporation shall have authority to affix the corporate seal of the
Corporation to any document requiring the same.
ARTICLE II
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STOCKHOLDERS
------------
Section 1. Place of Meeting. All meetings of the stockholders shall be held at
the principal office of the Corporation in the State of Maryland or at such
other place within the United States
<PAGE>
as may from time to time be designated by the Board of Directors and stated in
the notice of such meeting.
Section 2. Annual Meetings. An annual meeting of stockholders for election of
Directors and the transaction of such other business as may properly come before
the meeting shall be held at such time and place within the United States as the
Board of Directors, or any duly constituted committee of the Board, shall select
between February 25th and March 25th; provided, however, that the date to be
selected for the annual meeting to be held in 1998 shall be between April 25th
and May 25th; and provided, further, that the date to be selected for the annual
meeting to be held in 1999 shall be between March 25th and April 25th.
Section 3. Special Meetings. Special meetings of stockholders may be called at
any time by the President or a majority of the Board of Directors and shall be
held at such time and place as may be stated in the notice of the meeting.
Special meetings of the stockholders shall be called by the Secretary upon
receipt of the written request of the holders of shares entitled to not less
than a majority of all the votes entitled to be cast at such meeting, provided
that (1) the information specified in Article II, Section 11 is given; and (2)
the stockholders requesting such meeting shall have paid to the Corporation the
reasonably estimated cost of preparing and mailing the notice thereof, which the
Secretary shall determine and specify to such stockholders. No special meeting
shall be called upon the request of stockholders to consider any matter which is
substantially the same as a matter voted upon at any special meeting of the
stockholders held during the preceding 12 months, unless requested by the
holders of a majority of all shares entitled to be voted at such meeting.
Section 4. Notice of Meetings. The Secretary shall cause written or printed
notice of the place, date and hour, and, in the case of a special meeting, the
purpose or purposes for which the
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meeting is called, to be given, not less than 10 and not more than 90 days
before the date of the meeting, to each stockholder entitled to vote at, or
entitled to notice of, such meeting by leaving the same with such stockholder or
at such stockholder's residence or usual place of business or by mailing it,
postage prepaid, and addressed to such stockholder at his address as it appears
on the records of the Corporation at the time of such mailing. If mailed, notice
shall be deemed to be given when deposited in the United States mail addressed
to the stockholder as aforesaid. Notice of any stockholders' meeting need not be
given to any stockholder who shall sign a written waiver of such notice either
before or after the time of such meeting, which waiver shall be filed with the
records of such meeting, or to any stockholder who is present at such meeting in
person or by proxy. Notice of adjournment of a stockholders' meeting to another
time or place need not be given if such time and place are announced at the
meeting.
Section 5. Quorum; Adjournment of Meetings. The presence at any stockholders'
meeting, in person or by proxy, of stockholders entitled to cast a majority of
all votes entitled to be cast constitutes a quorum for the transaction of
business. In the absence of a quorum, the holders of a majority of shares
entitled to vote at the meeting and present in person or by proxy, or, if no
stockholder entitled to vote is present in person or by proxy, any officer
present entitled to preside or act as Secretary of such meeting may adjourn the
meeting without determining the date of the new meeting or from time to time
without further notice to a date not more than 120 days after the original
record date. Any business that might have been transacted at the meeting
originally called may be transacted at any such adjourned meeting at which a
quorum is present.
Section 6. Voting and Inspector. Unless otherwise provided by the Charter, at
each stockholders' meeting, each stockholder entitled to vote thereat shall be
entitled to one vote for each share of stock of the Corporation validly issued
and outstanding and standing in his name on
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the books of the Corporation on the record date fixed in accordance with Section
5 of Article VI hereof (and each stockholder of record holding fractional
shares, if any, shall have proportionate voting rights). Stockholders may vote
their shares owned of record either in person or by proxy appointed by
instrument in writing subscribed by such stockholder or his duly authorized
attorney. Unless a proxy otherwise provides, it is not valid for more than
eleven months after its date. Except as otherwise specifically provided in the
Charter or these By-Laws or as required by provisions of the Investment Company
Act of 1940, as amended from time to time, all matters shall be decided by a
vote of the majority of all votes validly cast at a meeting at which a quorum is
present. The vote upon any question shall be by ballot whenever requested by any
person entitled to vote, but, unless such a request is made, voting may be
conducted in any way approved by the meeting.
At any election of Directors, the Chairman of the meeting may, and upon the
request of the holders of ten percent (10%) of the stock entitled to vote at
such election shall, appoint one inspector of election who shall first subscribe
an oath or affirmation to execute faithfully the duties of inspector at such
election with strict impartiality and according to the best of his ability, and
shall after the election make a certificate of the result of the vote taken. No
candidate for the office of Director shall be appointed such Inspector.
Section 7. Stockholders Entitled to Vote. If the Board of Directors sets a
record date for the determination of stockholders entitled to notice of or to
vote at any stockholders' meeting in accordance with Section 5 of Article VI
hereof, each stockholder of the Corporation shall be entitled to vote, in person
or by proxy, each share of stock standing in his name on the books of the
Corporation on such record date. If no record date has been fixed, the record
date for the determination of stockholders entitled to notice of or to vote at a
meeting of stockholders shall be
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the later of the close of business on the day on which notice of the meeting is
mailed or the thirtieth day before the meeting, or, if notice is waived by all
stockholders, at the close of business on the tenth day next preceding the day
on which the meeting is held.
Section 8. Validity of Proxies, Ballots. The right to vote by proxy shall exist
only if the instrument authorizing such proxy to act shall have been signed by
the stockholder or by his duly authorized attorney. Unless a proxy provides
otherwise, it shall not be valid more than eleven months after its date. At
every meeting of the stockholders, all proxies shall be received and taken in
charge of and all ballots shall be received and canvassed by the Secretary of
the Corporation or the person acting as Secretary of the meeting before being
voted, who shall decide all questions touching the qualification of voters, the
validity of the proxies and the acceptance or rejection of votes, unless an
inspector of election has been appointed by the Chairman of the meeting in which
event such inspector of election shall decide all such questions. A proxy with
respect to stock held in the name of two or more persons shall be valid if
executed by one of them unless at or prior to exercise of such proxy the
Corporation receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a stockholder shall
be deemed valid unless challenged at or prior to its exercise.
Section 9. Conduct of Stockholders' Meetings. The meetings of the stockholders
shall be presided over by the President, or if he is not present, by the
Chairman, or if he is not present, by any Vice President, or if none of them is
present, then by any other officer of the Corporation appointed by the President
to act on his behalf shall preside over the meeting. The Secretary of the
Corporation, if present, shall act as a Secretary of such meeting, or if he is
not present, an Assistant Secretary shall so act; if neither the Secretary nor
any Assistant Secretary is present,
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then any such person appointed by the Secretary to act on his behalf shall act
as the Secretary of such meeting.
Section 10. Action Without a Meeting. Any action to be taken by stockholders may
be taken without a meeting if (1) all stockholders entitled to vote on the
matter consent to the action in writing, (2) all stockholders entitled to notice
of the meeting but not entitled to vote at it sign a written waiver of any right
to dissent and (3) said consents and waivers are filed with the records of the
meetings of stockholders. Such consent shall be treated for all purposes as a
vote at the meeting.
Section 11. Stockholder Proposals.
(a) No business proposed by a stockholder to be considered at an annual
meeting of stockholders shall be considered by the stockholders at that meeting
unless no less than 90 days nor more than 120 days prior to the first
anniversary date ("anniversary date") of the annual meeting for the preceding
year, or, with respect to annual meetings not scheduled to be held within a
period that commences 30 days before the anniversary date and ends 30 days after
the anniversary date, by the later of the close of business on the date 90 days
prior to such meeting or 14 days following the date such meeting is first
publicly announced or disclosed, the Secretary of the Corporation receives a
written notice from the stockholder proposing a business matter to be considered
at an annual meeting that sets forth the information required by Section 11(c)
of this Article II.
(b) No business matter shall be considered at a special meeting of
stockholders unless such matter is specifically listed as a purpose of the
special meeting and listed as a matter proposed to be acted on at the special
meeting pursuant to the Corporation's notice of meeting.
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(i) In the event a special meeting is called at the request of
stockholders, pursuant to Section 3 of this Article II, the written request
shall be delivered to the Secretary of the Corporation, and shall state the
business proposed by stockholders to be the purpose of the meeting and the
matters proposed to be acted upon, and shall set forth the information
required by Section 11(c) of this Article II.
(ii) In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any stockholder may nominate a person or persons (as the case
may be) for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder delivers a written notice to the
Secretary of the Corporation, which shall set forth the information
required by Section 11(c) of this Article II, not later than the close of
business 21 days following the day on which the date of the special meeting
and the nominees proposed by the Board of Directors to be elected at such
meeting are publicly announced or disclosed.
(c) The written notice or written request to the Secretary of the
Corporation, required to be provided pursuant to Section 11(a) or 11(b) of this
Article II, shall include the following information: (1) the nature of the
proposed business with reasonable particularity, including the exact text of any
proposal to be presented for adoption, and the reasons for conducting that
business at the meeting of stockholders, (2) with respect to each such
stockholder, that stockholder's name and address (as they appear on the records
of the Corporation), business address and telephone number, residence address
and telephone number, and the number of shares of each class of stock of the
Corporation beneficially owned by that stockholder, (3) any interest
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of the stockholder in the proposed business, (4) the name or names of each
person nominated by the stockholder to be elected or reelected as a director, if
any, and (5) with respect to each nominee, that nominee's name, business address
and telephone number, and residence address and telephone number, the number of
shares, if any, of each class of stock of the Corporation owned directly and
beneficially by that nominee, and all information relating to that nominee that
is required to be disclosed in solicitations of proxies for elections of
directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended ("Exchange Act") (or any provisions
of law subsequently replacing Regulation 14A), together with a notarized letter
signed by the nominee stating his or her acceptance of the nomination by that
stockholder, stating his or her intention to serve as director if elected, and
consenting to being named as a nominee for director in any proxy statement
relating to such election.
(d) The chairman of the annual or special meeting shall determine whether
notice of matters proposed to be brought before a meeting has been duly given in
the manner provided by this Section 11. If the facts warrant, the chairman shall
declare to the meeting that business has not been properly brought before the
meeting in accordance with the provisions of this Section 11, and, it,
therefore, shall not be considered or transacted.
(e) The requirement of the Corporation to include in the Corporation's
proxy statement a stockholder proposal shall be governed by Rule 14a-8 under the
Exchange Act (or any provisions of law subsequently replacing Rule 14a-8) ("Rule
14a-8"). Accordingly, the deadline for including a stockholder proposal in the
Corporation's proxy statement shall be governed by Rule 14a-8.
(f) The adjournment of an annual or special meeting, or any announcement
thereof, shall not commence a new period for the giving of notice as provided in
this Section 11.
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(g) For purposes of this Section 11, a meeting date shall be deemed to have
been "publicly announced or disclosed" if such date is disclosed in a press
release disseminated by the Corporation to a national news service or contained
in a document publicly filed by the Corporation with the Securities and Exchange
Commission.
ARTICLE III
-----------
BOARD OF DIRECTORS
------------------
Section 1. Powers. Except as otherwise provided by law, by the Charter or by
these By-Laws, the business and affairs of the Corporation shall be managed
under the discretion of, and all the powers of the Corporation shall be
exercised by or under the authority of, its Board of Directors.
Section 2. Number. The Board of Directors shall consist of at least one, but not
more than 20 Directors, as specified by resolution of the majority of the entire
Board of Directors, provided that at least 40% of the entire Board of Directors
shall be persons who are not interested persons of the Corporation as defined in
the Investment Company Act of 1940.
Section 3. Election. At the first annual meeting of stockholders and at each
annual meeting thereafter, Directors shall be elected by vote of the holders of
a majority of the shares present in person or by proxy and entitled to vote
thereon.
Section 4. Place of Meeting. The Directors may hold their meetings, have one or
more offices, and keep the books of the Corporation, outside the State of
Maryland, and within or without the United States of America, at any office or
offices of the Corporation or at any other place as they may from time to time
by resolution determine, or in the case of meetings, as they may from time to
time by resolution determine or as shall be specified or fixed in the respective
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notices or waivers of notice thereof; provided, however, that Board meetings
shall not be held in Australia.
Section 5. Annual and Regular Meetings. The annual meeting of the Board of
Directors for choosing officers and transacting other proper business shall be
held immediately after the annual stockholders' meeting at the place of such
meeting or at such other time and place as the Board may determine. The Board of
Directors from time to time may provide by resolution for the holding of regular
meetings and fix their time and place as the Board of Directors may determine.
Notice of such annual and regular meetings need not be in writing, provided that
notice of any change in the time or place of such meetings shall be communicated
promptly to each Director not present at the meeting at which such change was
made in the manner provided in Section 8 of this Article III for notice of
special meetings. Members of the Board of Directors or any committee designated
thereby may participate in a meeting of such Board or committee by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
held at any time or place and for any purpose when called by the President, the
Secretary or two or more of the Directors. Notice of special meetings, stating
the time and place, shall be communicated to each Director personally by
telephone or transmitted to him by telegraph, telefax, telex, cable or wireless
at least one day before the meeting.
Section 7. Waiver of Notice. No notice of any meeting of the Board of Directors
or a committee of the Board need be given to any Director who is present at the
meeting or who
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waives notice of such meeting in writing (which waiver shall be filed with the
records of such meeting), either before or after the meeting.
Section 8. Quorum and Voting. At all meetings of the Board of Directors, the
presence of a majority of the number of Directors then in office shall
constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of the Directors present may adjourn the meeting, from time to time,
until a quorum shall be present. 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 law, by the Charter or by these By-Laws.
Section 9. Action Without a Meeting. 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 to such action is signed by all
members of the Board or of any committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 10. Compensation of Directors. Directors shall be entitled to receive
such compensation from the Corporation for their services as may from time to
time be determined by resolution of the Board of Directors.
ARTICLE IV
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COMMITTEES
----------
Section 1. Organization. By resolution adopted by the Board of Directors, the
Board may designate one or more committees, including an Executive Committee,
composed of two or more Directors. The Chairmen of such committees shall be
elected by the Board of Directors. The Board of Directors shall have the power
at any time to change the members of such committees
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and to fill vacancies in the committees. The Board may delegate to these
committees any of its powers, except the power to authorize the issuance of
stock (other than as provided in the next sentence), declare a dividend or
distribution on stock, recommend to stockholders any action requiring
stockholder approval, amend these By-Laws, or approve any merger or share
exchange which does not require stockholder approval. If the Board of Directors
has given general authorization for the issuance of stock, a committee of the
Board, in accordance with a general formula or method specified by the Board by
resolution or by adoption of a stock option or other plan, may fix the terms of
stock subject to classification or reclassification and the terms on which any
stock may be issued, including all terms and conditions required or permitted to
be established or authorized by the Board of Directors.
Section 2. Proceedings and Quorum. In the absence of an appropriate resolution
of the Board of Directors, each committee, consistent with law, may adopt such
rules and regulations governing its proceedings, quorum and manner of acting as
it shall deem proper and desirable. In the event any member of any committee is
absent from any meeting, the members thereof present at the meeting, whether or
not they constitute a quorum, may appoint a member of the Board of Directors to
act in the place of such absent member.
ARTICLE V
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OFFICERS
--------
Section 1. General. The officers of the Corporation shall be a President (who
shall be a Director), a Chairman (who shall be a Director), a Secretary and a
Treasurer, and may include one or more Vice Presidents, Assistant Secretaries or
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 9 of this Article.
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Section 2. Election, Tenure and Qualifications. The officers of the Corporation,
except those appointed as provided in Section 9 of this Article V, shall be
elected by the Board of Directors at its first meeting or such meetings as shall
be held prior to its first annual meeting, and thereafter annually at its annual
meeting. If any officers are not chosen at any annual meeting, such officers may
be chosen at any subsequent regular or special meeting of the Board. Except as
otherwise provided in this Article V, each officer chosen by the Board of
Directors shall hold office until the next annual meeting of the Board of
Directors and until his successor shall have been elected and qualified. Any
person may hold one or more offices of the Corporation except the offices of
President and Vice President.
Section 3. Removal and Resignation. Whenever in the judgment of the Board of
Directors the best interest of the Corporation will be served thereby, any
officer may be removed from office by the vote of a majority of the members of
the Board of Directors given at a regular meeting or any special meeting called
for such purpose. Any officer may resign his office at any time by delivering a
written resignation to the Board of Directors, the President, the Secretary, or
any Assistant Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
Section 4. President. The President shall be the chief executive officer of the
Corporation and he shall preside at all stockholders' meetings. Subject to the
supervision of the Board of Directors, he shall have general charge of the
business, affairs and property of the Corporation and general supervision over
its officers, employees and agents. Except as the Board of Directors may
otherwise order, he may sign in the name and on behalf of the Corporation all
deeds, bonds, contracts, or agreements. He shall exercise such other powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
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Section 5. Chairman. The Chairman shall be the Chairman of the Board of
Directors and shall preside at all Directors' meetings. Except as the Board of
Directors may otherwise order, he may sign in the name and on behalf of the
Corporation all deeds, bonds, contracts, or agreements. He shall exercise such
other powers and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
Section 6. Vice President. The Board of Directors may from time to time elect
one or more Vice Presidents who shall have such powers and perform such duties
as from time to time may be assigned to them by the Board of Directors or the
President. At the request or in the absence or disability of the President, the
Vice President (or, if there are two or more Vice Presidents, then the senior of
the Vice Presidents present and able to act) may perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
Section 7. Treasurer and Assistant Treasurers. The Treasurer shall be the
principal financial and accounting officer of the Corporation and shall have
general charge of the finances and books of account of the Corporation. Except
as otherwise provided by the Board of Directors, he shall have general
supervision of the funds and property of the Corporation and of the performance
by the Custodian of its duties with respect thereto. He shall render to the
Board of Directors, whenever directed by the Board, an account of the financial
condition of the Corporation and of all his transactions as Treasurer; and as
soon as possible after the close of each fiscal year he shall make and submit to
the Board of Directors a like report for such fiscal year. He shall perform all
acts incidental to the Office of Treasurer, subject to the control of the Board
of Directors.
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Any Assistant Treasurer may perform such duties of the Treasurer as the
Treasurer or the Board of Directors may assign, and, in the absence of the
Treasurer, he may perform all the duties of the Treasurer.
Section 8. Secretary and Assistant Secretaries. The Secretary shall attend to
the giving and serving of all notices of the Corporation and shall record all
proceedings of the meetings of the stockholders and Directors in books to be
kept for that purpose. He shall keep in safe custody the seal of the
Corporation, and shall have charge of the records of the Corporation, including
the stock books and such other books and papers as the Board of Directors may
direct and such books, reports, certificates and other documents required by law
to be kept, all of which shall at all reasonable times be open to inspection by
any Director. He shall perform such other duties as appertain to his office or
as may be required by the Board of Directors. Any Assistant Secretary may
perform such duties of the Secretary as the Secretary or the Board of Directors
may assign, and, in the absence of the Secretary, he may perform all the duties
of the Secretary.
Section 9. Subordinate Officers. The Board of Directors from time to time may
appoint such other officers or agents as it may deem advisable, each of whom
shall have such title, hold office for such period, have such authority and
perform such duties as the Board of Directors may determine. The Board of
Directors from time to time may delegate to one or more officers or agents the
power to appoint any such subordinate officers or agents and to prescribe their
respective rights, terms of office, authorities and duties.
Section 10. Remuneration. The salaries or other compensation of the officers of
the Corporation shall be fixed from time to time by resolution of the Board of
Directors, except that the Board of Directors may by resolution delegate to any
person or group of persons the power to
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fix the salaries or other compensation of any subordinate officers or agents
appointed in accordance with the provisions of Section 9 of this Article V.
Section 11. Surety Bonds. The Board of Directors may require any officer or
agent of the Corporation to execute a bond (including, without limitation, any
bond required by the Investment Company Act of 1940, as amended, and the rules
and regulations of the Securities and Exchange Commission) to the Corporation in
such sum and with such surety or sureties as the Board of Directors may
determine, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting of
any of the Corporation's property, funds or securities that may come into his
hands.
ARTICLE VI
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CAPITAL STOCK
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Section 1. Certificates of Stock. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. No certificate shall
be valid unless it is signed by the President or a Vice President and
countersigned by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and sealed with its seal, or bears the
facsimile signatures of such officers and a facsimile of such seal.
Section 2. Transfer of Shares. Shares of the Corporation shall be transferable
on the books of the Corporation by the holder thereof in person or by his duly
authorized attorney or legal representative upon surrender and cancellation of a
certificate or certificates for the same number of shares of the same class,
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
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may reasonably require. The Board of Directors may, from time to time, adopt
rules and regulations with reference to the method of transfer of the shares of
stock of the Corporation.
Section 3. Stock Ledgers. The stock ledgers of the Corporation, containing the
names and addresses of the stockholders and the number of shares held by them
respectively, shall be kept at the principal offices of the Corporation or, if
the Corporation employs a transfer agent, at the offices of the transfer agent
of the Corporation.
Section 4. Transfer Agents and Registrars. The Board of Directors may from time
to time appoint or remove transfer agents and/or registrars of transfers of
shares of stock of the Corporation, and it may appoint the same person as both
transfer agent and registrar.
Section 5. Fixing of Record Date. The Board of Directors may fix in advance a
date as a record date for the determination of the stockholders entitled to
notice of, or to vote at, any stockholders' meeting or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or to
receive payment of any dividend or other distribution or to be allotted any
other rights, or for the purpose of any other lawful action, provided that (1)
such record date shall not exceed 90 days preceding the date on which the
particular action requiring such determination will be taken; (2) the transfer
books shall remain open regardless of the fixing of a record date; (3) in the
case of a meeting of stockholders, the record date shall be at least 10 days
before the date of the meeting; and (4) in the event a dividend or other
distribution is declared, the record date for stockholders entitled to a
dividend or distribution shall be at least 10 days after the date on which the
dividend is declared (declaration date).
Section 6. Lost, Stolen or Destroyed Certificates. Before issuing a new
certificate for stock of the Corporation alleged to have been lost, stolen or
destroyed, the Board of Directors or any officer authorized by the Board may, in
its discretion, require the owner of the lost, stolen or
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destroyed certificate (or his legal representative) to give the Corporation a
bond or other indemnity, in such form and in such amount as the Board or any
such officer may direct and with such surety or sureties as may be satisfactory
to the Board or any such officer, sufficient to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VII
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INDEMNIFICATION
---------------
Section 1. Indemnification of Directors, Officers, Employees and Agents. The
Corporation shall indemnify each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal administrative or investigative
("Proceeding"), by reason of the fact that he is or was a Director, Officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all expenses
(including attorneys' fees), judgment, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such Proceeding to
the maximum extent permitted by the laws of the State of Maryland.
Notwithstanding the foregoing, the following provisions shall apply with respect
to indemnification of the Corporation's Directors, Officers, and, except as may
otherwise be provided by an agreement, investment adviser (as defined in the
Investment Company Act of 1940, as amended) and principal underwriter:
(a) Whether or not there is an adjudication of liability in such
Proceeding, the Corporation shall not indemnify any such person for any
liability arising by reason of such person's willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties
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involved in the conduct of his office or under any contract or agreement with
the Corporation ("disabling conduct").
(b) The Corporation shall not indemnify any such person unless:
(i) the court or other body before which the Proceeding was brought
(a) dismisses the Proceeding for insufficiency of evidence of any disabling
conduct, or (b) reaches a final decision on the merits that such person was
not liable by reason of disabling conduct; or
(ii) absent such a decision, a reasonable determination is made, based
upon a review of the facts, by (a) the vote of a majority of a quorum of
the Directors of the Corporation who are neither interested persons of the
Corporation as defined in the Investment Company Act of 1940, as amended,
nor parties to the Proceeding, or (b) if such quorum is not obtainable, or
even if obtainable, if a majority quorum of Directors described in
paragraph (B)(ii)(a) above so directs, by independent legal counsel in a
written opinion, that such person was not liable by reason of disabling
conduct.
(c) Expenses (including attorneys' fees) incurred in defending a Proceeding
involving any such person will be paid by the Corporation in advance of the
final disposition thereof upon an undertaking by such person to repay such
expenses (unless it is ultimately determined that he is entitled to
indemnification), if:
(i) such person shall provide adequate security for his undertaking;
(ii) the Corporation shall be insured against losses arising by reason
of such advance; or
(iii) a majority of a quorum of the Directors of the Corporation who
are neither interested person of the Corporation as defined in the
Investment Company Act of 1940,
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as amended, nor parties to the Proceeding, or independent legal counsel in
a written opinion, shall determine, based on a review of readily available
facts, that there is reason to believe that such person will be found
entitled to indemnification.
ARTICLE VIII
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AMENDMENTS
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Section 1. General. All By-Laws of the Corporation, whether adopted by the Board
of Directors or the stockholders, shall be subject to amendment, alteration or
repeal, and new By-Laws may be made by the affirmative vote of a majority of
either: (a) the holders of record of the outstanding shares of stock of the
Corporation entitled to vote, at any annual or special meeting, the notice or
waiver of notice of which shall have specified or summarized the proposed
amendment, alteration, repeal or new By-Law; or (b) the Directors, at any
regular or special meeting the notice or waiver of notice of which shall have
specified or summarized the proposed amendment, alteration, repeal or new
By-Law.
AMENDED AND RESTATED
THE FIRST COMMONWEALTH FUND, INC.
MANAGEMENT AGREEMENT
AGREEMENT executed this 9th day of September, between The First
Commonwealth Fund, Inc. (the "Fund"), a Maryland corporation registered under
the Investment Company Act of 1940 (the "1940 Act"), and EquitiLink
International Management Limited, a Jersey, Channel Islands corporation (the
"Investment Manager").
WHEREAS, the Fund is a closed-end management investment company; and
WHEREAS, the Fund engages in the business of investing its assets in
the manner and in accordance with its stated current investment objective and
restrictions;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Obligations.
-----------
1.1 The Investment Manager will manage, in accordance with the
Fund's stated investment objective, policies and limitations and subject to the
supervision of the Fund's Board of Directors, the Fund's investments. The
Investment Manager will make investment decisions on behalf of the Fund
including the selection of and placing of orders with brokers and dealers to
execute portfolio transactions on behalf of the Fund. The Investment Manager
shall give the Fund the benefit of the Investment Manager's best judgment and
efforts in rendering services under this Agreement.
1.2 The Fund will pay the Investment Manager a fee at the annual
rate of 0.65% of the Fund's average weekly net assets applicable to shares of
common stock and shares of preferred stock up to $200 million, 0.60% of such
amounts between $200 million and $500 million and 0.55% of such assets in excess
of $500 million, computed based upon net asset value applicable to shares of
common stock and shares of preferred stock determined weekly and payable on the
first business day of each calendar month it being understood that the portion
of the fee which is equal to the percentage of the Fund's net assets, measured
at the end of each week, held in securities (or cash) denominated in the
currencies of Australia and New Zealand, Canada, and the United Kingdom shall be
paid to the Investment Manager in, respectively, the currencies of Australia,
Canada and the United Kingdom. For the purpose of determining the fees payable
to the Investment Manager hereunder, the value of the Fund's net assets shall be
computed initially at the times and in the manner specified in the Fund's
registration statement on Form N-2, as such times and manner may be amended from
time to time by action of the Fund's Board.
1.3 In rendering the services required under this Agreement, the
Investment Manager may, at its expense, employ, consult or associate with itself
such person or persons as it believes necessary to assist it in carrying out its
obligations under this Agreement. However, the
<PAGE>
Investment Manager may not retain any person or company that would be an
"investment adviser," as that term is defined in the 1940 Act, to the Fund
unless (i) the Fund is a party to the contract with such person or company and
(ii) such contract is approved by a majority of the Fund's Board of Directors
and a majority of Directors who are not parties to any agreement or contract
with such company and who are not "interested persons," as defined in the 1940
Act, of the Fund, the Investment Manager, or any such person or company retained
by the Investment Manager, and is approved by the vote of a majority of the
outstanding voting securities of the Fund to the extent required by the 1940
Act.
2. Expenses. The Investment Manager shall bear all expenses of its
employees and overhead incurred in connection with its duties under this
Agreement and shall pay all salaries and fees of the Fund's Directors and
officers who are interested persons (as defined in the 1940 Act) of the
Investment Manager. The Fund will bear all of its own expenses, including:
expenses of organizing the Fund; fees of the Fund's Directors who are not
interested persons (as defined in the 1940 Act) of any other party;
out-of-pocket travel expenses for all Officers and Directors and other expenses
incurred by the Fund in connection with meetings of directors; interest expense;
taxes and governmental fees including any original issue taxes or transfer taxes
applicable to the sale or delivery of shares or certificates therefor; brokerage
commissions and other expenses incurred in acquiring or disposing of the Fund's
portfolio securities; expenses in connection with the issuance, offering,
distribution, sale or underwriting of securities issued by the Fund; expenses of
registering and qualifying the Fund's shares for sale with the Securities and
Exchange Commission and in various states and foreign jurisdictions; auditing,
accounting, insurance and legal costs; custodian, dividend disbursing and
transfer agent expenses; and the expenses of shareholders' meetings and of the
preparation and distribution of proxies and reports to shareholders.
3. Liability. The Investment Manager shall not be liable for any error
of judgment or for any loss suffered by the Fund in connection with the matters
to which this Agreement relates, except a loss resulting from a breach of
fiduciary duty with respect to receipt of compensation for services (in which
case any award of damages shall be limited to the period and the amount set
forth in Section 36(b)(3) of the 1940 Act) or a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the performance of, or
from reckless disregard by it of its obligations and duties under, this
Agreement.
4. Services Not Exclusive. It is understood that the services of the
Investment Manager are not deemed to be exclusive, and nothing in this Agreement
shall prevent the Investment Manager or any affiliate, from providing similar
services to other investment companies and other clients (whether or not their
investment objectives and policies are similar to those of the Fund) or from
engaging in other activities. When other clients of the Investment Manager
desire to purchase or sell a security at the same time such security is
purchased or sold for the Fund, such purchases and sales will be allocated among
the Investment Manager's clients, including the Fund, in a manner that is fair
and equitable in the judgment of the Investment Manager in the exercise of its
fiduciary obligations to the Fund and to such other clients.
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<PAGE>
5. Scope of Engagement. The Investment Manager hereby agrees that the
Fund, may, at any time, upon at least 60 days' notice, advise the Investment
Manager that it wishes to limit the scope of the Investment Manager's engagement
hereunder to that of managing the Fund's investments solely with respect to
securities denominated in certain stipulated currencies, in which case the fee
otherwise payable to the Investment Manager as provided in Paragraph 1.2 hereof
shall be reduced to reflect the proportion of the Fund's aggregate net assets
measured at the end of each week which are denominated in the stipulated
currencies.
6. Duration and Termination. This Agreement shall become effective
upon shareholder approval thereof as required under the 1940 Act and shall
continue in effect for two (2) years from the date of its execution. If not
sooner terminated, this Agreement shall continue in effect with respect to the
Fund for successive periods of twelve months thereafter, provided that each such
continuance shall be specifically approved annually by the vote of a majority of
the Fund's Board of Directors who are not parties to this Agreement or
interested persons (as defined in the 1940 Act) of any such party, cast in
person at a meeting called for the purpose of voting on such approval and either
(a) the vote of a majority of the outstanding voting securities of the Fund, or
(b) the vote of a majority of the Fund's entire Board of Directors.
Notwithstanding the foregoing, this Agreement may be terminated with respect to
the Fund at any time, without the payment of any penalty, by a vote of a
majority of the Fund's Board of Directors or a majority of the outstanding
voting securities of the Fund upon at least sixty (60) days' written notice to
the Investment Manager or by the Investment Manager upon at least ninety (90)
days' written notice to the Fund. This Agreement shall automatically terminate
in the event of its assignment (as defined in the 1940 Act).
7. Miscellaneous.
7.1 This Agreement shall be construed in accordance with the laws
of the State of New York, provided that nothing herein shall be construed as
being inconsistent with the 1940 Act and any rules, regulations and orders
thereunder.
7.2 The captions in this Agreement are included for convenience
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
7.3 If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby and, to that extent, the provisions of
this Agreement shall be deemed to be severable.
7.4 Nothing herein shall be construed as constituting the
Investment Manager an agent of the Fund.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
THE FIRST COMMONWEALTH FUND, INC.
By: /s/ Laurence S. Freedman
--------------------------
Title: President
EQUITILINK INTERNATIONAL
MANAGEMENT LIMITED
By: /s/ David Manor
--------------------------
Title: Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes
and appoints Margaret A. Bancroft, Allan S. Mostoff, Sander M. Bieber, Jennifer
O. Epstein and Michael J. Andersen and each of them, as his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for such attorney-in-fact in such attorney-in-fact's name, place and stead, to
sign any and all registration statements applicable to The First Commonwealth
Fund, Inc. (the "Fund"), and any amendments or supplements thereto, and to file
the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person in his capacity as a Director or Officer of
the Fund, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Signature Title Date
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Brian M. Sherman President September 28, 1999
