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SIGNATURE MARY JANE MALONEY
TITLE MANAGER
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<NAME> THE ASIA TIGERS FUND, INC.
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EXHIBIT INDEX
Exhibit A:
Attachment to item 77B: Accountant's report on internal
control.
Exhibit B:
Attachment to item 77C: Submission of matters to a vote of
security holders
Exhibit C:
Attachment to item 77Q1(a): Copies of any material amendments
to the registrant's charter or by-laws
Exhibit D:
Attachment to item 77Q1(e): Copies of any new or amended
Registrant investment advisory contracts
- -----------------------------------------------------------
Exhibit A:
Report of Independent Accountants
To the Shareholders and Board of Directors of
The Asia Tigers Fund, Inc.
In planning and performing our audit of the financial statements
of The Asia Tigers Fund, Inc. (the "Fund") for the year ended
October 31, 1998, we considered its internal control, including
control activities for safeguarding securities, in order to
determine our auditing procedures for the purpose of expressing
our opinion on the financial statements and to comply with the
requirements of Form N-SAR, not to provide assurance on internal
control.
The management of the Fund is responsible for establishing and
maintaining internal control. In fulfilling this responsibility,
estimates and judgments by management are required to assess the
expected benefits and related costs of controls. Generally,
controls that are relevant to an audit pertain to the entity's
objective of preparing financial statements for external purposes
that are fairly presented in conformity with generally accepted
accounting principles. Those controls include the safeguarding
of assets against unauthorized acquisition, use or disposition.
Because of inherent limitations in internal control, errors or
fraud may occur and not be detected. Also, projection of any
evaluation of internal control to future periods is subject to
the risk that it may become inadequate because of changes in
conditions or that the effectiveness of the design and operation
may deteriorate.
Our consideration of internal control would not necessarily
disclose all matters in internal control that might be material
weaknesses under standards established by the American Institute
of Certified Public Accountants. A material weakness is a
condition in which the design or operation of one or more of the
internal control components does not reduce to a relatively low
level the risk that misstatements caused by error or fraud in
amounts that would be material in relation to the financial
statements being audited may occur and not be detected within a
timely period by employees in the normal course of performing
their assigned functions. However, we noted no matters involving
internal control and its operation, including control activities
for safeguarding securities, that we consider to be material
weaknesses as defined above as of October 31, 1998.
This report is intended solely for the information and use of
management and the Board of Directors of the Fund and the
Securities and Exchange Commission.
PricewaterhouseCoopers LLP
December 8, 1998
Exhibit B:
Results of Special Meeting
The Asia Tigers Fund Inc. held a Special Meeting of Stockholders
on August 7, 1998, at which a new Investment Advisory Agreement
among Advantage Advisers, Inc., AXA Asset Management Partenaires
and the Fund was approved. Certain amendments to the existing
Management Agreement between Advantage Advisers, Inc. and the
Fund were also approved.
With respect to the new Investment Advisory Agreement, 11,133,990
votes were cast in favor of approval, 843,705 votes were cast
against approval and 251,295 votes abstained. With respect to
the amendments to the Management Agreement, 9,136,091 votes were
cast for approval, 794,399 votes were cast against approval and
2,298,500 votes abstained.
Exhibit C:
(AS OF MAY 20, 1998)
AMENDED AND RESTATED BY-LAWS
OF
THE ASIA TIGERS FUND, INC.
A Maryland Corporation
ARTICLE I
OFFICES
SECTION 1. Principal Office in Maryland. The Asia Tigers Fund,
Inc. (the "Corporation") shall have a principal office in the
City of Baltimore, State of Maryland.
SECTION 2. Other Offices. The Corporation may have offices also
at such other places within and without the State of Maryland as
the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the
stockholders of the Corporation shall be held on a date not less
than ninety (90) days nor more than one hundred twenty (120) days
following the end of the Corporation's fiscal year fixed from
time to time by the Board of Directors. An annual meeting may be
held at any place in or out of the State of Maryland and at any
time, each as may be determined by the Board of Directors and
designated in the notice of the meeting. Any business of the
Corporation may be transacted at an annual meeting without the
purposes having been specified in the notice unless otherwise
provided by statute, the Corporation's Articles of Incorporation,
as amended from time to time (the "Charter"), or these By-Laws.
SECTION 2. Special Meetings. Special meetings of the
stockholders for any purpose or purposes, unless otherwise
prescribed by statute or by the Corporation's Charter, may be
held at any place within the United States, and may be called at
any time by the Board of Directors or by the Chairman or the
President, and shall be called by the Secretary (or in his
absence, an Assistant Secretary) at the request in writing of
stockholders entitled to cast at least a majority of the votes
entitled to be cast at the meeting upon payment by such
stockholders to the Corporation of the reasonably estimated cost
of preparing and mailing a notice of the meeting (which estimated
cost shall be provided to such stockholders by the Secretary of
the Corporation). A written request shall state the purpose or
purposes of the proposed meeting.
SECTION 3. Notice of Meetings. Written or printed notice of the
purpose or purposes and of the time and place of every meeting of
the stockholders shall be given by the Secretary of the
Corporation to each stockholder of record entitled to vote at or
to notice of the meeting, by placing the notice in the mail at
least ten (10) days, but not more than ninety (90) days, prior to
the date designated for the meeting addressed to each stockholder
at his address appearing on the books of the Corporation or
supplied by the stockholder to the Corporation for the purpose of
notice. Notice of any meeting of stockholders shall be deemed
waived by any stockholder who attends the meeting in person or by
proxy, or who before or after the meeting submits a signed waiver
of notice that is filed with the records of the meeting.
SECTION 4. Notice of Stockholder Business.
(a) At any annual or special meeting of the stockholders, only
such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an
annual meeting, the business must be (i) (A) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (B) otherwise properly
brought before the meeting by or at the direction of the Board of
Directors, or (C) otherwise properly brought before the meeting
by a stockholder in accordance with Section 4(b) below and (ii) a
proper subject under applicable law for stockholder action. To
be properly brought before a special meeting, the business must
be (i) (A) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors,
or (B) otherwise properly brought before the meeting by or at the
direction of the Board of Directors and (ii) a proper subject
under applicable law for stockholder action.
(b) For any stockholder proposal to be presented in connection
with an annual meeting of stockholders of the Corporation (other
than proposals made under Rule 14a-8 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including any
proposal relating to the nomination of a director to be elected
to the Board of Directors of the Corporation, the stockholder
must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices
of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than
the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such
annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or re-election
as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including such person's
written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any
other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such
business of such stockholder and of the beneficial owner, if any,
on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made, (i) the name
and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the
class and number of shares of stock of the Corporation which are
owned beneficially and of record by such stockholder and such
beneficial owner.
(c) Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at any stockholder meeting except in
accordance with the procedures set forth in this Section 4. The
Chairman of the stockholder meeting shall, if the facts warrant,
determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the
provisions of this Section 4, and if he should so determine, he
shall so declare to the meeting that any such business not
properly brought before the meeting shall not be considered or
transacted.
SECTION 5. Quorum; Voting. Except as otherwise provided by
statute or by the Corporation's Charter, the presence in person
or by proxy of stockholders of the Corporation entitled to cast
at least a majority of the votes entitled to be cast shall
constitute a quorum at each meeting of the stockholders. A
majority of the votes cast at a meeting at which a quorum is
present is sufficient to approve any matter which properly comes
before the meeting, except that a plurality of the votes cast at
a meeting at which a quorum is present shall be sufficient to
elect directors. In the absence of a quorum, the stockholders
present in person or by proxy at the meeting, by majority vote
and without notice other than by announcement at the meeting, may
adjourn the meeting from time to time as provided in this Section
5 until a quorum shall attend. The stockholders present at any
duly organized meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 6. Adjournment. Any meeting of the stockholders may be
adjourned from time to time, without notice other than by
announcement at the meeting at which the adjournment is taken.
At any adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting
originally called. A meeting of the stockholders may not be
adjourned to a date more than one hundred twenty (120) days after
the original record date.
SECTION 7. Organization. At every meeting of the stockholders,
the Chairman of the Board, or in his absence or inability to act,
the President, or in his absence or inability to act, a Vice
President, or in the absence or inability to act of all the Vice
Presidents, a chairman chosen by the stockholders, shall act as
chairman of the meeting. The Secretary, or in his or her absence
or inability to act, a person appointed by the chairman of the
meeting, shall act as secretary of the meeting and keep the
minutes of the meeting.
SECTION 8. Order of Business. The order of business at all
meetings of the stockholders shall be as determined by the
chairman of the meeting.
SECTION 9. Proxies. A stockholder may vote the stock he owns of
record either in person or by written proxy signed by the
stockholder or by his duly authorized agent. Stockholders may
authorize others to act as proxies by means of facsimile
signatures, electronic transmissions, internet transmissions,
telegrams, datagrams, proxygrams and other reasonable means
authorized or accepted by the Corporation, subject to the
reasonable satisfaction of the Corporation that the stockholder
has authorized the creation of the proxy. No proxy shall be
valid after the expiration of eleven (11) months from the date
thereof, unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the stockholder executing
it, except in those cases in which the proxy states that it is
irrevocable and in which an irrevocable proxy is permitted by
law.
SECTION 10. Fixing of Record Date for Determining Stockholders
Entitled to Vote at Meeting. The Board of Directors shall set a
record date for the purpose of determining stockholders entitled
to vote at any meeting of the stockholders. The record date for
a particular meeting shall be not more than ninety (90) nor fewer
than ten (10) days before the date of the meeting. All persons
who were holders of record of shares as of the record date of a
meeting, and no others, shall be entitled to notice of and to
vote at such meeting and any adjournment thereof.
SECTION 11. Inspectors. The Board of Directors may, in advance
of any meeting of stockholders, appoint one (1) or more
inspectors to act at the meeting or at any adjournment of the
meeting. If the inspectors shall not be so appointed or if any
of them shall fail to appear or act, the chairman of the meeting
may appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall, if required by the chairman of
the meeting, take and sign an oath to execute faithfully the
duties of inspector at the meeting with strict impartiality and
according to the best of his ability. The inspectors, if
appointed, shall determine the number of shares outstanding and
the voting power of each share, the number of shares represented
at the meeting, the existence of a quorum and the validity and
effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do those acts as
are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting or any
stockholder entitled to vote at the meeting, the inspectors shall
make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact
found by them. No director or candidate for the office of
director shall act as inspector of an election of directors.
Inspectors need not be stockholders of the Corporation.
SECTION 12. Consent of Stockholders in Lieu of Meeting. Except
as otherwise provided by statute or the Corporation's Charter,
any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if the following are
filed with the records of stockholders' meetings: (a) a
unanimous written consent that sets forth the action and is
signed by each stockholder entitled to vote on the matter and (b)
a written waiver of any right to dissent signed by each
stockholder entitled to notice of the meeting but not entitled to
vote at the meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. Except as otherwise provided in the
Corporation's Charter, the business and affairs of the
Corporation shall be managed under the direction of the Board of
Directors. All powers of the Corporation may be exercised by or
under authority of the Board of Directors except as conferred on
or reserved to the stockholders by law, by the Corporation's
Charter or by these By-Laws.
SECTION 2. Number, Election and Term of Directors. The number
of directors constituting the entire Board of Directors (which
initially was fixed at two (2) in the Corporation's Charter) may
be changed from time to time by a majority of the entire Board of
Directors; provided, however, that the number of directors shall
in no event be fewer than that required by law, nor more than
twelve (12). Beginning with the first annual meeting of
stockholders of the Corporation and if at such time, the number
of directors shall be three (3) or more, (the "First Annual
Meeting"), the Board of Directors of the Corporation shall be
divided into three classes: Class I, Class II and Class III. At
the First Annual Meeting, directors of Class I shall be elected
to the Board of Directors for a term expiring at the next
succeeding annual meeting of stockholders, directors of Class II
shall be elected to the Board of Directors for a term expiring at
the second succeeding annual meeting of stockholders and
directors of Class III shall be elected to the Board of Directors
for a term expiring at the third succeeding annual meeting of
stockholders. At each subsequent annual meeting of stockholders,
the directors chosen to succeed those whose terms are expiring
shall be identified as being of the same class as the directors
whom they succeed and shall be elected for a term expiring at the
time of the third succeeding annual meeting of stockholders
subsequent to their election. The directors shall be elected at
the annual meeting of the stockholders, except as provided in
Section 5 of this Article III, and each director elected shall
hold office for the term provided above and until his successor
shall have been elected and shall have qualified, or until his
death, or until he shall have resigned or have been removed as
provided in these By-Laws, or as otherwise provided by statute or
the Corporation's Charter. Any vacancy created by an increase in
directors may be filled in accordance with Section 5 of this
Article III. No reduction in the number of directors shall have
the effect of removing any director from office prior to the
expiration of his term unless the director is specifically
removed pursuant to Section 4 of this Article III at the time of
the decrease.
SECTION 3. Resignation. A director of the Corporation may
resign at any time by giving written notice of his resignation to
the Board of Directors or the Chairman of the Board or to the
Vice-Chairman of the Board or the President or the Secretary of
the Corporation. Any resignation shall take effect at the time
specified in it or, should the time when it is to become
effective not be specified in it, immediately upon its receipt.
Acceptance of a resignation shall not be necessary to make it
effective unless the resignation states otherwise.
SECTION 4. Removal of Directors. A director of the Corporation
may be removed from office only for cause and then only by vote
of the holders of at least seventy-five percent (75%) of the
votes entitled to be cast for the election of directors.
SECTION 5. Vacancies. Subject to the provisions of the
Investment Company Act of 1940 (the "1940 Act"), any vacancies in
the Board of Directors, whether arising from death, resignation,
removal or any other cause except an increase in the number of
directors, shall be filled by a vote of the majority of the
remaining Directors whether or not sufficient to constitute a
quorum. A majority of the entire Board may fill a vacancy that
results from an increase in the number of directors.
Notwithstanding the foregoing, if the stockholders of any class
of the Corporation's capital stock are entitled separately to
elect one or more directors, a majority of the remaining
directors elected by that class or the sole remaining director
elected by that class may fill any vacancy among the number of
directors elected by that class. Any director appointed by the
Board of Directors to fill a vacancy shall hold office only until
the next annual meeting of stockholders of the Corporation and
until a successor has been elected and qualifies. Any director
elected by the stockholders to fill a vacancy shall hold office
for the balance of the term of the director he replaced.
SECTION 6. Place of Meetings. Meetings of the Board may be held
at any place that the Board of Directors may from time to time
determine or that is specified in the notice of the meeting.
SECTION 7. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at the time and place
determined by the Board of Directors.
SECTION 8. Special Meetings. Special meetings of the Board of
Directors may be called by two (2) or more directors of the
Corporation or by the Chairman of the Board or the President.
SECTION 9. Annual Meeting. The annual meeting of the newly
elected and other directors shall be the first meeting after the
meeting of the stockholders at which the newly elected directors
were elected. No notice of such annual meeting shall be
necessary if such meeting is held immediately after the
adjournment, and at the site, of the meeting of stockholders. If
not so held, notice shall be given as hereinafter provided for
special meetings of the Board of Directors.
SECTION 10. Notice of Special Meetings. Notice of each special
meeting of the Board of Directors shall be given by the Secretary
as hereinafter provided. Each notice shall state the time and
place of the meeting and shall be delivered to each director,
either personally or by telephone or other standard form of
telecommunication, at least twenty-four (24) hours before the
time at which the meeting is to be held, or by first-class mail,
postage prepaid, addressed to the director at his residence or
usual place of business, and mailed at least three (3) days
before the day on which the meeting is to be held.
SECTION 11. Waiver of Notice of Meetings. Notice of any special
meeting need not be given to any director who shall, either
before or after the meeting, sign a written waiver of notice that
is filed with the records of the meeting or who shall attend the
meeting.
SECTION 12. Quorum and Voting. A majority of the entire Board
of Directors shall constitute a quorum for the transaction of
business, and except as otherwise expressly required by statute,
the Corporation's Charter or these By-Laws, the act of a majority
of the directors present at any meeting at which a quorum is
present shall be the act of the Board.
SECTION 13. Organization. The Chairman of the Board shall
preside at each meeting of the Board. In the absence or
inability of the Chairman of the Board to act, the President (if
he is a director), or, in his absence or inability to act,
another director chosen by a majority of the directors present,
shall act as chairman of the meeting and preside at the meeting.
The Secretary (or, in his or her absence or inability to act, any
person appointed by the chairman) shall act as secretary of the
meeting and keep the minutes of the meeting.
SECTION 14. Committees. The Board of Directors may designate
one (1) or more committees of the Board of Directors, including
an executive committee, each consisting of one (1) or more
directors. To the extent provided in the resolutions adopted by
the Board of Directors, and permitted by law, the committee or
committees shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation. Any committee or committees shall have the name or
names determined from time to time by resolution adopted by the
Board of Directors. Each committee shall keep regular minutes of
its meetings and provide those minutes to the Board of Directors
when required. The members of a committee present at any
meeting, whether or not they constitute a quorum, may appoint a
director to act in the place of an absent member.
SECTION 15. Written Consent of Directors in Lieu of a Meeting.
Subject to the provisions of the 1940 Act, any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee of the Board may be taken without a meeting if
all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board or committee.
SECTION 16. Telephone Conference. Members of the Board of
Directors or any committee of the Board may participate in any
Board or committee meeting 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. Participation by such means shall constitute presence in
person at the meeting, provided, however, that such participation
shall not constitute presence in person with respect to matters
which the 1940 Act, and the rules thereunder require the approval
of directors by vote cast in person at a meeting.
SECTION 17. Compensation. Each director shall be entitled to
receive compensation, if any, as may from time to time be fixed
by the Board of Directors, including a fee for each meeting of
the Board or any committee thereof, regular or special, he
attends. Directors may also be reimbursed by the Corporation for
all reasonable expenses incurred in traveling to and from the
place of a Board or committee meeting.
ARTICLE IV
OFFICERS, AGENTS AND EMPLOYEES
SECTION 1. Number and Qualifications. The officers of the
Corporation shall be a Chairman, a President, a Secretary, a
Treasurer, and an Assistant Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may
elect or appoint a Chairman of the Board of Directors, and one
(1) or more Vice Presidents and may also appoint any other
officers, assistant officers, agents and employees it deems
necessary or proper. Any two (2) or more offices may be held by
the same person, except the offices of President and Vice
President, but no officer shall execute, acknowledge or verify in
more than one (1) capacity any instrument required by law to be
executed, acknowledged or verified by more than one officer.
Officers shall be elected by the Board of Directors each year at
its first meeting held after the annual meeting of stockholders,
each to hold office until the meeting of the Board following the
next annual meeting of the stockholders and until his successor
shall have been duly elected and shall have qualified, or until
his death, or until he shall have resigned or have been removed,
as provided in these By-Laws. The Board of Directors may from
time to time elect such officers (including one or more Assistant
Vice Presidents, one or more Assistant Treasurers and one or more
Assistant Secretaries) and may appoint, or delegate to the
President the power to appoint, such agents as may be necessary
or desirable for the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their
offices for such terms as may be prescribed by the Board or by
the appointing authority.
SECTION 2. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to
the Board of Directors, the Chairman of the Board, the President
or the Secretary. Any resignation shall take effect at 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.
SECTION 3. Removal of Officer, Agent or Employee. Any officer,
agent or employee of the Corporation may be removed by the Board
of Directors with or without cause at any time, and the Board may
delegate the power of removal as to agents and employees not
elected or appointed by the Board of Directors. Removal shall be
without prejudice to the person's contract rights, if any, but
the appointment of any person as an officer, agent or employee of
the Corporation shall not of itself create contract rights.
SECTION 4. Vacancies. A vacancy in any office, whether arising
from death, resignation, removal or any other cause, may be
filled for the unexpired portion of the term of the office that
shall be vacant, in the manner prescribed in these By-Laws for
the regular election or appointment to the office.
SECTION 5. Compensation. The compensation of the officers of
the Corporation shall be fixed by the Board of Directors, but
this power may be delegated to any officer with respect to other
officers under his control.
SECTION 6. Bonds or Other Security. If required by the Board,
any officer, agent or employee of the Corporation shall give a
bond or other security for the faithful performance of his
duties, in an amount and with any surety or sureties as the Board
may require.
SECTION 7. Chairman of the Board of Directors. The Chairman of
the Board of Directors shall be the chief executive officer of
the Corporation and shall have, subject to the control of the
Board of Directors, general and active management and supervision
of the business, affairs, and property of the Corporation and its
several officers and may employ and discharge employees and
agents of the Corporation, except those elected or appointed by
the Board, and he may delegate these powers. The Chairman shall
preside at all meetings of the stockholders and of the Board of
Directors. He shall execute on behalf of the Corporation all
instruments requiring such execution except to the extent that
signing and execution thereof shall be required by the President
of the Corporation or shall be expressly delegated by the Board
of Directors to some other officer or agent of the Corporation.
SECTION 8. Vice-Chairman of the Board of the Directors. The
Vice-Chairman of the Board of Directors shall, in the absence of
the Chairman of the Board, preside at all meetings of the
stockholders and directors. He shall have and exercise all the
powers and authority of the Chairman of the Board in the event of
the Chairman's absence or inability to act or during a vacancy in
the office of Chairman of the Board. He shall also have such
other duties and responsibilities as shall be assigned to him by
the Chairman or the Board of Directors.
SECTION 9. President. The President shall, in the absence of
the Chairman and Vice-Chairman of the Board of Directors, preside
at all meetings of the stockholders and directors. He shall have
and exercise all the powers and authority of the Chairman of the
Board in the event of the Chairman's and Vice-Chairman's absence
or inability to act or during a vacancy in the offices of
Chairman and Vice-Chairman of the Board. He shall sign and
execute all instruments required to be signed and executed by the
President of the Corporation. He shall also have such other
duties and responsibilities as shall be assigned to him by the
Chairman or the Board of Directors.
SECTION 10. Vice President. Each Vice President shall have the
powers and perform the duties that the Board of Directors or the
Chairman of the Board may from time to time prescribe.
SECTION 11. Treasurer. Subject to the provisions of any
contract that may be entered into with any custodian pursuant to
authority granted by the Board of Directors, the Treasurer shall
have charge of all receipts and disbursements of the Corporation
and shall have or provide for the custody of the Corporation's
funds and securities; he shall have full authority to receive and
give receipts for all money due and payable to the Corporation,
and to endorse checks, drafts, and warrants, in its name and on
its behalf and to give full discharge for the same; he shall
deposit all funds of the Corporation, except those that may be
required for current use, in such banks or other places of
deposit as the Board of Directors may from time to time
designate; and, in general, he shall perform all duties incident
to the office of Treasurer and such other duties as may from time
to time be assigned to him by the Board of Directors or the
Chairman of the Board.
SECTION 12. Assistant Treasurers. The Assistant Treasurers in
the order of their seniority, unless otherwise determined by the
Chairman of the Board or the Board of Directors, shall, in the
absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer. They shall perform such
other duties and have such other powers as the Chairman or the
Board of Directors may from time to time prescribe.
SECTION 13. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board of
Directors, the committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and
affix and attest the seal to all other documents to be executed
on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed
are properly kept and filed; and
(e) in general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the Board of Directors or the Chairman of the
Board.
SECTION 14. Assistant Secretaries. The Assistant Secretaries in
the order of their seniority, unless otherwise determined by the
Chairman of the Board or the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary. They shall perform such
other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe.
SECTION 15. Delegation of Duties. In case of the absence of any
officer of the Corporation, or for any other reason that the
Board of Directors may deem sufficient, the Board may confer for
the time being the powers or duties, or any of them, of such
officer upon any other officer or upon any director.
ARTICLE V
STOCK
SECTION 1. Stock Certificates. Unless otherwise provided by the
Board of Directors and permitted by law, each holder of stock of
the Corporation shall be entitled upon specific written request
to such person as may be designated by the Corporation to have a
certificate or certificates, in a form approved by the Board,
representing the number of shares of stock of the Corporation
owned by him; provided, however, that certificates for fractional
shares will not be delivered in any case. The certificates
representing shares of stock shall be signed by or in the name of
the Corporation by the Chairman of the Board, the Vice-Chairman
of the Board, the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer and may be sealed with the seal of the
Corporation. Any or all of the signatures or the seal on the
certificate may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before the certificate is
issued, it may be issued by the Corporation with the same effect
as if the officer, transfer agent or registrar was still in
office at the date of issue.
SECTION 2. Stock Ledger. There shall be maintained a stock
ledger containing the name and address of each stockholder and
the number of shares of stock of each class the shareholder
holds. The stock ledger may be in written form or any other form
which can be converted within a reasonable time into written form
for visual inspection. The original or a duplicate of the stock
ledger shall be kept at the principal office of the Corporation
or at any other office or agency specified by the Board of
Directors.
SECTION 3. Transfers of Shares. Transfers of shares of stock of
the Corporation shall be made on the stock records of the
Corporation only by the registered holder of the shares, or by
his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary or with a transfer agent or
transfer clerk, and on surrender of the certificate or
certificates, if issued, for the shares properly endorsed or
accompanied by a duly executed stock transfer power and the
payment of all taxes thereon. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the
record of stockholders as the owner of the share or shares for
all purposes, including, without limitation, the rights to
receive dividends or other distributions and to vote as the
owner, and the Corporation shall not be bound to recognize any
equitable or legal claim to or interest in any such share or
shares on the part of any other person.
SECTION 4. Regulations. The Board of Directors may authorize
the issuance of uncertificated securities if permitted by law.
If stock certificates are issued, the Board of Directors may make
any additional rules and regulations, not inconsistent with these
By-Laws, as it may deem expedient concerning the issue, transfer
and registration of certificates for shares of stock of the
Corporation. The Board may appoint, or authorize any officer or
officers to appoint, one or more transfer agents or one or more
transfer clerks and one or more registrars and may require all
certificates for shares of stock to bear the signature or
signatures of any of them.
SECTION 5. Lost, Destroyed or Mutilated Certificates. The
holder of any certificate representing shares of stock of the
Corporation shall immediately notify the Corporation of its loss,
destruction or mutilation and the Corporation may issue a new
certificate of stock in the place of any certificate issued by it
that has been alleged to have been lost or destroyed or that
shall have been mutilated. The Board may, in its discretion,
require the owner (or his legal representative) of a lost,
destroyed or mutilated certificate to give to the Corporation a
bond in a sum, limited or unlimited, and in a form and with any
surety or sureties, as the Board in its absolute discretion shall
determine, to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or
destruction of any such certificate, or issuance of a new
certificate. Anything herein to the contrary notwithstanding,
the Board of Directors, in its absolute discretion, may refuse to
issue any such new certificate, except pursuant to legal
proceedings under the laws of the State of Maryland.
SECTION 6. Fixing of Record Date for Dividends, Distributions,
etc. The Board may fix, in advance, a date not more than ninety
(90) days preceding the date fixed for the payment of any
dividend or the making of any distribution or the allotment of
rights to subscribe for securities of the Corporation, or for the
delivery of evidences of rights or evidences of interests arising
out of any change, conversion or exchange of common stock or
other securities, as the record date for the determination of the
stockholders entitled to receive any such dividend, distribution,
allotment, rights or interests, and in such case only the
stockholders of record at the time so fixed shall be entitled to
receive such dividend, distribution, allotment, rights or
interests.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
SECTION 1. Indemnification of Directors and Officers. Any
person who was or is a party or is threatened to be made a party
in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is a
current or former director or officer of the Corporation, or is
or was serving while a director or officer of the Corporation at
the request of the Corporation as a director, officer, partner,
trustee, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust, enterprise or employee benefit
plan, shall be indemnified by the Corporation against judgments,
penalties, fines, excise taxes, settlements and reasonable
expenses (including attorneys' fees) actually incurred by such
person in connection with such action, suit or proceeding to the
full extent permissible under the Maryland General Corporation
Law, the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act, as those statutes are now or hereafter in force,
except that such indemnity shall not protect any such person
against any liability to the Corporation or any stockholder
thereof to which such person would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office
("disabling conduct"). Any repeal or modification of the 1933
Act, the 1940 Act or these By-Laws shall not in any way diminish
any rights to indemnification hereunder except as required by
law.
SECTION 2. Advances. Any current or former director or officer
of the Corporation claiming indemnification within the scope of
this Article VI shall be entitled to advances from the
Corporation for payment of the reasonable expenses incurred by
him in connection with proceedings to which he is a party in the
manner and to the full extent permissible under the Maryland
General Corporation Law, the 1933 Act, and the 1940 Act, as those
statutes are now or hereafter in force; provided, however, that
the person seeking indemnification shall provide to the
Corporation a written affirmation of his good faith belief that
the standard of conduct necessary for indemnification by the
Corporation has been met and a written undertaking to repay any
such advance, if it should ultimately be determined that the
standard of conduct has not been met, and provided further that
at least one of the following additional conditions is met: (a)
the person seeking indemnification shall provide a security in
form and amount acceptable to the Corporation for his
undertaking; (b) the Corporation is insured against losses
arising by reason of the advance; or (c) a majority of a quorum
of directors of the Corporation who are neither "interested
persons" as defined in Section 2(a)(19) of the 1940 Act, nor
parties to the proceeding ("disinterested non-party directors"),
or independent legal counsel, in a written opinion, shall
determine, based on a review of facts readily available to the
Corporation at the time the advance is proposed to be made, that
there is reason to believe that the person seeking
indemnification will ultimately be found to be entitled to
indemnification.
SECTION 3. Procedure. At the request of any current or former
director or officer, or any employee or agent whom the
Corporation proposes to indemnify, the Board of Directors shall
determine, or cause to be determined, in a manner consistent with
the Maryland General Corporation Law, the 1933 Act, and the 1940
Act, as those statutes are now or hereafter in force, whether the
standards required by this Article VI have been met; provided,
however, that indemnification shall be made only following: (a)
a final decision on the merits by a court or other body before
whom the proceeding was brought, finding that the person to be
indemnified was not liable by reason of disabling conduct or (b)
in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the person to be
indemnified was not liable by reason of disabling conduct, by (i)
the vote of a majority of a quorum of disinterested non-party
directors or (ii) an independent legal counsel in a written
opinion.
SECTION 4. Indemnification of Employees and Agents. Employees
and agents who are not officers or directors of the Corporation
may be indemnified, and reasonable expenses may be advanced to
such employees or agents, in accordance with the procedures set
forth in this Article VI to the extent permissible under the
Maryland General Corporation Law, the 1933 Act, and the 1940 Act,
as those statutes are now or hereafter in force, and to such
further extent, consistent with the foregoing, as may be provided
by action of the Board of Directors or by contract.
SECTION 5. Other Rights. The indemnification provided by this
Article VI shall not be deemed exclusive of any other right, with
respect to indemnification or otherwise, to which those seeking
such indemnification may be entitled under any insurance or other
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action by a director or officer of the
Corporation in his official capacity and as to action by such
person in another capacity while holding such office or position,
and shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
SECTION 6. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or
who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, agent or
fiduciary of another corporation, partnership, joint venture,
trust, enterprise or employee benefit plan, against any liability
asserted against and incurred by him in any such capacity, or
arising out of his status as such, provided that no insurance may
be obtained by the Corporation for liabilities against which it
would not have the power to indemnify him under this Article VI
or applicable law.
ARTICLE VII
SEAL
The seal of the Corporation shall be circular in form and shall
bear the name of the Corporation, the year of its incorporation,
the words "Corporate Seal" and "Maryland" and any emblem or
device approved by the Board of Directors. The seal may be used
by causing it or a facsimile to be impressed or affixed or in any
other manner reproduced. In lieu of affixing the seal, it shall
be sufficient to meet the requirements of any law, rule or
regulation relating to a corporate seal to place the word
"(seal)" adjacent to the signature of the person authorized to
sign the document on behalf of the Corporation.
ARTICLE VIII
AMENDMENTS
These By-Laws may be amended by the Board of Directors, subject
to the requirements of the 1940 Act; provided, however, that no
amendment of these By-Laws shall affect any right of any person
under Article VI hereof based on any event, omission or
proceeding prior to the amendment. These By-Laws may not be
amended by the stockholders of the Corporation.
Exhibit D:
INVESTMENT ADVISORY AGREEMENT
Advantage Advisers, Inc.
CIBC Oppenheimer Tower
One World Financial Center
New York, New York 10281
June 9, 1998
AXA Asset Management Partenaires
46 Avenue De La Grande Armee
75017 Paris, France
Dear Sirs:
This will confirm the agreement among the undersigned (the
"Investment Manager"), you (the "Investment Adviser") and the
Fund (but only with respect to subparagraph 3(b) and paragraphs
6, 7, 10 and 11 of this agreement) as follows:
1. The Investment Manager has been employed by The Asia Tigers
Fund, Inc. (the "Fund") pursuant to a management agreement
between the Fund and the Investment Manager (the "Management
Agreement"). The Fund is a closed-end, non-diversified
management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"). The Fund
engages in the business of investing and reinvesting its assets
in the manner and in accordance with the investment objective and
limitations specified in the Fund's Articles of Incorporation, as
amended from time to time (the "Articles"), in the Registration
Statement on Form N-2, as in effect from time to time (the
"Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC") by the Fund under the 1940 Act and the
Securities Act of 1933, as amended, and in such manner and to
such extent as may from time to time be authorized by the Board
of Directors of the Fund. Copies of the documents referred to in
the preceding sentence have been furnished to the Investment
Adviser. Any amendments to these documents shall be furnished to
the Investment Adviser.
2. The Investment Manager employs the Investment Adviser,
subject to the direction and control of the directors of the
Fund, including without limitation any approval of the directors
of the Fund required by the 1940 Act, to (a) make, in
consultation with the Investment Manager and the Fund's Board of
Directors, investment strategy decisions for the Fund, (b) manage
the investing and reinvesting of the Fund's assets as specified
in paragraph 1, (c) place purchase and sale orders on behalf of
the Fund, (d) provide or procure the provision of research and
statistical data to the Fund in relation to investing and other
matters within the scope of the investment objective and
limitations of the Fund and (e) be responsible for compliance by
the Fund with U.S. federal, state and other applicable laws and
regulations.
3. (a) The Investment Adviser shall, at its expense, provide
the Fund with office space, office facilities and personnel
reasonably necessary for performance of the services to be
provided by the Investment Adviser pursuant to this Agreement.
(b) Except as provided in subparagraph 3(a) hereof and
Section 1 of the Management Agreement, the Fund shall be
responsible for all of the Fund's expenses and liabilities,
including organizational and offering expenses (which include
out-of-pocket expenses, but not overhead or employee costs of the
Investment Adviser); expenses for legal, accounting and auditing
services; taxes and governmental fees; dues and expenses incurred
in connection with membership in investment company
organizations; fees and expenses incurred in connection with
listing the Fund's shares on any stock exchange; costs of
printing and distributing shareholder reports, proxy materials,
prospectuses, stock certificates and distribution of dividends;
charges of the Fund's custodians and sub-custodians,
administrators and sub-administrators, registrars, transfer
agents, dividend disbursing agents and dividend reinvestment plan
agents; payment for portfolio pricing services to a pricing
agent, if any; registration and filing fees of the Securities and
Exchange Commission; expenses of registering or qualifying
securities of the Fund for sale in the various states; freight
and other charges in connection with the shipment of the Fund's
portfolio securities; fees and expenses of non-interested
directors; travel expenses or an appropriate portion thereof of
directors and officers of the Fund who are directors, officers or
employees of the Investment Adviser to the extent that such
expenses relate to attendance at meetings of the Board of
Directors or any committee thereof; salaries of shareholder
relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary
or non-recurring expenses.
4. The Investment Adviser shall have discretion over investment
decisions for the Fund and shall make investments for the Fund's
account in accordance with the investment objective and
limitations set forth in the Articles, the Registration
Statement, the 1940 Act, the provisions of the Internal Revenue
Code of 1986, as amended relating to regulated investment
companies, and policy decisions adopted by the Fund's Board of
Directors from time to time. The Investment Adviser shall advise
the Fund's officers and Board of Directors, at such times as the
Fund's Board of Directors may specify, of investments made for
the Fund's account and shall, when requested by the Fund's
officers or Board of Directors, supply the reasons for making
such investments.
5. The Investment Adviser may contract with or consult with such
banks, other securities firms, brokers or other parties, without
additional expense to the Fund, as it may deem appropriate
regarding investment advice, research and statistical data or
otherwise.
6. The Investment Adviser is authorized on behalf of the Fund,
from time to time when deemed to be in the best interests of the
Fund and to the extent permitted by applicable law, to purchase
and/or sell securities in which the Investment Adviser or the
Investment Manager or any of their affiliates underwrites, deals
in and/or makes a market and/or may perform or seek to perform
investment banking services for issuers of such securities. The
Investment Adviser is further authorized, to the extent permitted
by applicable law, to select brokers (including CIBC Oppenheimer
Corp. or any other brokers affiliated with the Investment Adviser
or the Investment Manager) for the execution of trades for the
Fund.
7. The Investment Adviser is authorized, for the purchase and
sale of the Fund's portfolio securities, to employ such dealers
and brokers as may, in the judgment of the Investment Adviser,
implement the policy of the Fund to obtain the best results
taking into account such factors as price, including dealer
spread, the size, type and difficulty of the transaction
involved, the firm's general execution and operational facilities
and the firm's risk in positioning the securities involved.
Consistent with this policy, the Investment Adviser is authorized
to direct the execution of the Fund's portfolio transactions to
dealers and brokers furnishing statistical information or
research deemed by the Investment Adviser to be useful or
valuable to the performance of its investment advisory functions
for the Fund. It is understood that in these circumstances, as
contemplated by Section 28(e) of the Securities Exchange Act of
1934, the commissions paid may be higher than those which the
Fund might otherwise have paid to another broker if those
services had not been provided. Information so received will be
in addition to and not in lieu of the services required to be
performed by the Investment Adviser. It is understood that the
expenses of the Investment Adviser will not necessarily be
reduced as a result of the receipt of such information or
research. Research services furnished to the Investment Adviser
by brokers who effect securities transactions for the Fund may be
used by the Investment Adviser in servicing other investment
companies and accounts which it manages. Similarly, research
services furnished to the Investment Adviser by brokers who
effect securities transactions for other investment companies and
accounts which the Investment Adviser manages may be used by the
Investment Adviser in servicing the Fund. It is understood that
not all of these research services are used by the Investment
Adviser in managing any particular account, including the Fund.
8. In consideration of the services to be rendered by the
Investment Adviser under this agreement, the Investment Manager
shall pay the Investment Adviser a monthly fee in United States
dollars on the fifth business day of each month for the previous
month at an annual rate of 0.50% of the Fund's average weekly net
assets; provided, however, that during the period of time
commencing on the date of this agreement and continuing until the
issuance of the Securities and Exchange Commission Order on the
requested exemptive relief pursuant to Section 6(c) of the 1940
Act, the Investment Adviser shall be entitled only to
reimbursement of its reasonable costs for providing services to
the Fund, which shall be certified to the satisfaction of the
Investment Manager; and provided further, that during the period
of time commencing on the date hereof and continuing until the
earlier of (a) such time as this agreement is approved by a vote
of a majority of the Fund's outstanding voting securities (as
defined in the 1940 Act) or (b) October 1, 1998, the fees payable
to the Investment Adviser under this agreement shall be paid into
an interest-bearing account (the "Account") maintained by an
escrow agent. Such escrow agent shall not be an "affiliated
person" (as defined in the 1940 Act) of any of the parties
hereto. All amounts paid into the Account (including interest
earned on such fees) may be paid to the Investment Adviser upon
the approval of a majority of the Fund's outstanding voting
securities (as defined in the 1940 Act) of this agreement. In
the event that the stockholders of the Fund fail to approve this
agreement prior to October 1, 1998, all amounts in the Account
shall be paid to the Fund. The parties hereto expressly
acknowledge that the escrow agent may release the moneys in the
Account only upon receipt of a certificate from an officer of the
Company (who shall not be an "interested person" (as defined in
the 1940 Act) of the Investment Adviser) stating that the moneys
are to be delivered to the Investment Adviser and that this
agreement has been approved by a majority of the outstanding
voting securities of the Fund (as defined in the 1940 Act) or, in
the event that the shareholders of the Fund failed to approve the
agreement prior to the date specified above, that the moneys in
the Account are to be delivered to the Fund. If the fee payable
to the Investment Adviser pursuant to this paragraph 8 begins to
accrue before the end of any month or if this agreement
terminates before the end of any month, the fee for the period
from such date to the end of such month or from the beginning of
such month to the date of termination, as the case may be, shall
be prorated according to the proportion which such period bears
to the full month in which such effectiveness or termination
occurs. For purposes of calculating each such monthly fee, the
value of the Fund's net assets shall be computed at the time and
in the manner specified in the Registration Statement.
9. The Investment Adviser represents and warrants that it is
duly registered and authorized as an investment adviser under the
Investment Advisers Act of 1940, as amended, and the Investment
Adviser agrees to maintain effective all requisite registrations,
authorizations and licenses, as the case may be, until
termination of this Agreement.
10. The Investment Adviser shall exercise its best judgment in
rendering the services in accordance with the terms of this
agreement. The Investment Adviser shall not be liable for any
error of judgment or mistake of law or for any act or omission or
any loss suffered by the Fund in connection with the matters to
which this agreement relates, provided that nothing herein shall
be deemed to protect or purport to protect the Investment Adviser
against any liability to the Fund or its shareholders to which
the Investment Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or from reckless disregard by it of
its obligations and duties under this agreement ("disabling
conduct"). The Fund will indemnify the Investment Adviser
against, and hold it harmless from, any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel
fees and expenses), including any amounts paid in satisfaction of
judgments, in compromise or as fines or penalties, not resulting
from disabling conduct by the Investment Adviser.
Indemnification shall be made only following: (i) a final
decision on the merits by a court or other body before whom the
proceeding was brought that the Investment Adviser was not liable
by reason of disabling conduct, or (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the
facts, that the Investment Adviser was not liable by reason of
disabling conduct by (a) the vote of a majority of a quorum of
directors of the Fund who are neither "interested persons" of the
Fund (as defined in the 1940 Act) nor parties to the proceeding
("disinterested non-party directors"), or (b) an independent
legal counsel in a written opinion. The Investment Adviser shall
be entitled to advances from the Fund for payment of the
reasonable expenses incurred by it in connection with the matter
as to which it is seeking indemnification in the manner and to
the fullest extent permissible under law. The Investment Adviser
shall provide to the Fund a written affirmation of its good faith
belief that the standard of conduct necessary for indemnification
by the Fund has been met and a written undertaking to repay any
such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one
of the following additional conditions shall be met: (a) the
Investment Adviser shall provide security in form and amount
acceptable to the Fund for its undertaking; (b) the Fund is
insured against losses arising by reason of the advance; or (c) a
majority of a quorum of disinterested non-party directors, or
independent legal counsel, in a written opinion, shall have
determined, based on a review of facts readily available to the
Fund at the time the advance is proposed to be made, that there
is reason to believe that the Investment Adviser will ultimately
be found to be entitled to indemnification.
11. Except as otherwise provided herein, this agreement shall
continue in effect until November 2, 1999, and thereafter for
successive annual periods, provided that such continuance is
specifically approved at least annually (a) by the vote of a
majority of the Fund's outstanding voting securities (as defined
in the 1940 Act) or by the Fund's Board of Directors and (b) by
the vote, cast in person at a meeting called for the purpose, of
a majority of the Fund's directors who are not parties to this
agreement or "interested persons" (as defined in the 1940 Act) of
any such party. Notwithstanding the above, this Agreement (a)
may nevertheless be terminated at any time, without penalty, by
the Fund's Board of Directors, by the vote of holders of a
majority of the outstanding voting securities (as defined in the
1940 Act) of the Fund or by the Investment Manager or the
Investment Adviser, upon 60 days' written notice delivered to
each party hereto, and (b) shall automatically be terminated in
the event of its assignment (as defined in the 1940 Act). Any
such notice shall be deemed given when received by the addressee.
12. Nothing herein shall be deemed to limit or restrict the
right of the Investment Adviser, or any affiliate of the
Investment Adviser, or any employee of the Investment Adviser, to
engage in any other business or to devote time and attention to
the management or other aspects of any other business, whether of
a similar or dissimilar nature, or to render services of any kind
to any other corporation, firm, individual or association.
Nothing herein shall be construed as constituting the Investment
Adviser an agent of the Investment Manager or the Fund.
13. This Agreement shall be governed by the laws of the State of
New York; provided, however, that nothing herein shall be
construed as being inconsistent with the 1940 Act.
14. Notices. Any notice hereunder shall be in writing and shall
be delivered in person or by telex or facsimile (followed by
delivery in person) to the parties at the addresses set forth
below.
If to the Investment Adviser:
AXA Asset Management Partenaires
46 Avenue De La Grande Armee
75017 Paris, France
Tel: 011-31-1-5537-5000
Attn: Jean-Pierre Hellebucyk
If to the Investment Manager:
Advantage Advisers, Inc.
CIBC Oppenheimer Tower
One World Financial Center
New York, New York 10281
Tel: 212-667-5014
Fax: 212-667-7950
Attn: Alan H. Rappaport
with a copy to:
CIBC Oppenheimer Corp.
CIBC Oppenheimer Tower
One World Financial Center
New York, New York 10281
Tel: 212-667-5014
Fax: 212-667-7950
Attn: Alan H. Rappaport
or to such other address as to which the recipient shall have
informed the other party in writing.
Unless specifically provided elsewhere, notice given as provided
above shall be deemed to have been given, if by personal
delivery, on the day of such delivery, and, if by facsimile and
mail, on the date on which such facsimile is sent or mailed.
15. Counterparts. This agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
If the foregoing correctly sets forth the agreement between the
Investment Manager and the Investment Adviser, please so indicate
by signing and returning to the Investment Manager the enclosed
copy hereof.
Very truly yours,
ADVANTAGE ADVISERS, INC.
By:_________________________________
Name:
Title:
ACCEPTED:
AXA ASSET MANAGEMENT PARTENAIRES
By:_________________________________
Name:
Title:
The Asia Tigers Fund, Inc. hereby
acknowledges and agrees to the
provisions of subparagraph 3(b)
and paragraphs 6, 7, 10 and
11 of this agreement.
THE ASIA TIGERS FUND, INC.
By:_________________________________
Name:
Title:
AMENDED MANAGEMENT AGREEMENT
Agreement dated and effective as of August 7, 1998 between The
Asia Tigers Fund, Inc., a Maryland corporation (herein referred
to as the "Fund"), and Advantage Advisers, Inc., a Delaware
corporation (herein referred to as the "Investment Manager").
1. Appointment of Investment Manager. The Investment Manager
hereby undertakes and agrees, upon the terms and conditions
herein set forth, to (i) supervise the Fund's investment program,
including advising and consulting with the Fund's Board of
Directors regarding the Fund's overall investment strategy; (ii)
make, in consultation with the Fund's Board of Directors,
investment strategy decisions for the Fund; (iii) manage the
investing and reinvesting of the Fund's assets; (iv) place
purchase and sale orders on behalf of the Fund; (v) provide or
procure the provision of research and statistical data to the
Fund in relation to investing and other matters within the scope
of the investment objective and limitations of the Fund (vi)
advise the Fund with respect to all matters relating to the
Fund's use of leveraging techniques; (vii) monitor the
performance of the Fund's outside service providers, including
the Fund's administrator, transfer agent and custodian; and
(viii) pay the salaries, fees and expenses of such of the Fund's
officers, directors or employees who are directors, officers or
employees of the Investment Manager or any of its affiliates,
except that the Fund will bear travel expenses or an appropriate
portion thereof of directors and officers of the Fund who are
directors, officers or employees of the Investment Manager. The
Investment Manager may delegate any of the foregoing
responsibilities to a third party with the consent of the Fund.
2. In connection herewith, the Investment Manager agrees to
maintain a staff within its organization to furnish the above
services to the Fund. The Investment Manager shall bear all
expenses arising out of its duties hereunder.
Except as provided in Section 1 hereof, the Fund shall be
responsible for all of the Fund's expenses and liabilities,
including organizational and offering expenses (which include
out-of-pocket expenses, but not overhead or employee costs of the
Investment Manager); expenses for legal, accounting and auditing
services; taxes and governmental fees; dues and expenses incurred
in connection with membership in investment company
organizations; fees and expenses incurred in connection with
listing the Fund's shares on any stock exchange; costs of
printing and distributing shareholder reports, proxy materials,
prospectuses, stock certificates and distribution of dividends;
charges of the Fund's custodians and sub-custodians,
administrators and sub-administrators, registrars, transfer
agents, dividend disbursing agents and dividend reinvestment plan
agents; payment for portfolio pricing services to a pricing
agent, if any; registration and filing fees of the Securities and
Exchange Commission; expenses of registering or qualifying
securities of the Fund for sale in the various states; freight
and other charges in connection with the shipment of the Fund's
portfolio securities; fees and expenses of non-interested
directors; travel expenses or an appropriate portion thereof of
directors and officers of the Fund who are directors, officers or
employees of the Investment Manager to the extent that such
expenses relate to attendance at meetings of the Board of
Directors or any committee thereof; salaries of shareholder
relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary
or non-recurring expenses.
3. Transactions with Affiliates. The Investment Manager is
authorized on behalf of the Fund, from time to time when deemed
to be in the best interests of the Fund and to the extent
permitted by applicable law, to purchase and/or sell securities
in which the Investment Manager or any of its affiliates
underwrites, deals in and/or makes a market and/or may perform or
seek to perform investment banking services for issuers of such
securities. The Investment Manager is further authorized, to the
extent permitted by applicable law, to select brokers (including
CIBC Oppenheimer Corp. or any other brokers affiliated with the
Investment Manager) for the execution of trades for the Fund.
4. Best Execution; Research Services. The Investment Manager is
authorized, for the purchase and sale of the Fund's portfolio
securities, to employ such dealers and brokers as may, in the
judgment of the Investment Manager, implement the policy of the
Fund to obtain the best results taking into account such factors
as price, including dealer spread, the size, type and difficulty
of the transaction involved, the firm's general execution and
operational facilities and the firm's risk in positioning the
securities involved. Consistent with this policy, the Investment
Manager is authorized to direct the execution of the Fund's
portfolio transactions to dealers and brokers furnishing
statistical information or research deemed by the Investment
Manager to be useful or valuable to the performance of its
investment advisory functions for the Fund. It is understood
that in these circumstances, as contemplated by Section 28(e) of
the Securities Exchange Act of 1934, the commissions paid may be
higher than those which the Fund might otherwise have paid to
another broker if those services had not been provided.
Information so received will be in addition to and not in lieu of
the services required to be performed by the Investment Manager.
It is understood that the expenses of the Investment Manager will
not necessarily be reduced as a result of the receipt of such
information or research. Research services furnished to the
Investment Manager by brokers who effect securities transactions
for the Fund may be used by the Investment Manager in servicing
other investment companies and accounts which it manages.
Similarly, research services furnished to the Investment Manager
by brokers who effect securities transactions for other
investment companies and accounts which the Investment Manager
manages may be used by the Investment Manager in servicing the
Fund. It is understood that not all of these research services
are used by the Investment Manager in managing any particular
account, including the Fund.
5. Remuneration. In consideration of the services to be
rendered by the Investment Manager under this Agreement, the Fund
shall pay the Investment Manager a monthly fee in United States
dollars on the fifth business day of each month for the previous
month at an annual rate of 1.00% of the Fund's average weekly net
assets. If the fee payable to the Investment Manager pursuant to
this paragraph 5 begins to accrue before the end of any month or
if this Agreement terminates before the end of any month, the fee
for the period from such date to the end of such month or from
the beginning of such month to the date of termination, as the
case may be, shall be prorated according to the proportion which
such period bears to the full month in which such effectiveness
or termination occurs. For purposes of calculating each such
monthly fee, the value of the Fund's net assets shall be computed
at the time and in the manner specified in the Registration
Statement.
6. Representations and Warranties. The Investment Manager
represents and warrants that it is duly registered and authorized
as an investment adviser under the Investment Advisers Act of
1940, as amended, and the Investment Manager agrees to maintain
effective all requisite registrations, authorizations and
licenses, as the case may be, until the termination of this
Agreement.
7. Services Not Deemed Exclusive. The services provided
hereunder by the Investment Manager are not to be deemed
exclusive and the Investment Manager and any of its affiliates or
related persons are free to render similar services to others and
to use the research developed in connection with this Agreement
for other clients or affiliates. Nothing herein shall be
construed as constituting the Investment Manager an agent of the
Fund.
8. Limit of Liability. The Investment Manager shall exercise
its best judgment in rendering the services in accordance with
the terms of this Agreement. The Investment Manager shall not be
liable for any error of judgment or mistake of law or for any act
or omission or any loss suffered by the Fund in connection with
the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect
the Investment Manager against any liability to the Fund or its
shareholders to which the Investment Manager would otherwise be
subject by reason of willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement ("disabling conduct"). The Fund will indemnify the
Investment Manager against, and hold it harmless from, any and
all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses), including any amounts paid
in satisfaction of judgments, in compromise or as fines or
penalties, not resulting from disabling conduct by the Investment
Manager. Indemnification shall be made only following: (i) a
final decision on the merits by a court or other body before whom
the proceeding was brought that the Investment Manager was not
liable by reason of disabling conduct, or (ii) in the absence of
such a decision, a reasonable determination, based upon a review
of the facts, that the Investment Manager was not liable by
reason of disabling conduct by (a) the vote of a majority of a
quorum of directors of the Fund who are neither "interested
persons" of the Fund nor parties to the proceeding
("disinterested non-party directors"), or (b) an independent
legal counsel in a written opinion. The Investment Manager shall
be entitled to advances from the Fund for payment of the
reasonable expenses incurred by it in connection with the matter
as to which it is seeking indemnification in the manner and to
the fullest extent permissible under law. Prior to any such
advance, the Investment Manager shall provide to the Fund a
written affirmation of its good faith belief that the standard of
conduct necessary for indemnification by the Fund has been met
and a written undertaking to repay any such advance if it should
ultimately be determined that the standard of conduct has not
been met. In addition, at least one of the following additional
conditions shall be met: (a) the Investment Manager shall
provide a security in form and amount acceptable to the Fund for
its undertaking; (b) the Fund is insured against losses arising
by reason of the advance; or (c) a majority of a quorum of
disinterested non-party directors, or independent legal counsel,
in a written opinion, shall have determined, based on a review of
facts readily available to the Fund at the time the advance is
proposed to be made, that there is reason to believe that the
Investment Manager will ultimately be found to be entitled to
indemnification.
9. Duration and Termination. This Agreement shall remain in
effect until November 2, 1999, and shall continue in effect
thereafter for successive annual periods, but only so long as
such continuance is specifically approved at least annually by
the affirmative vote of (i) a majority of the members of the
Fund's Board of Directors who are not parties to this Agreement
or "interested persons" (as defined in the Investment Company Act
of 1940, as amended (the "1940 Act")) of any such party, cast in
person at a meeting called for the purpose of voting on such
approval, and (ii) the Fund's Board of Directors or the holders
of a majority of the outstanding voting securities (as defined in
the 1940 Act) of the Fund.
Notwithstanding the above, this Agreement (a) may nevertheless be
terminated at any time, without penalty, by the Fund's Board of
Directors, by vote of holders of a majority of the outstanding
voting securities (as defined in the 1940 Act) of the Fund or by
the Investment Manager, upon 60 days' written notice delivered to
each party hereto, and (b) shall automatically be terminated in
the event of its assignment (as defined in the 1940 Act). Any
such notice shall be deemed given when received by the addressee.
10. Governing Law. This Agreement shall be governed, construed
and interpreted in accordance with the laws of the State of New
York, provided, however, that nothing herein shall be construed
as being inconsistent with the 1940 Act.
11. Notices. Any notice hereunder shall be in writing and shall
be delivered in person or by telex or facsimile (followed by
delivery in person) to the parties at the addresses set forth
below.
If to the Fund:
The Asia Tigers Fund, Inc.
CIBC Oppenheimer Tower
One World Financial Center
200 Liberty Street
New York, New York 10281
Tel: (212) 667-5000
Fax: (212) 667-7950
Attn: Alan H. Rappaport
Chairman
If to the Investment Manager:
Advantage Advisers, Inc.
CIBC Oppenheimer Tower
One World Financial Center
200 Liberty Street
New York, New York 10281
Tel: (212) 667-5000
Fax: (212) 667-7950
Attn: Alan H. Rappaport
President
with a copy to:
CIBC Oppenheimer Corp.
CIBC Oppenheimer Tower
One World Financial Center
200 Liberty Street
New York, New York 10281
Tel: (212) 667-7300
Fax: (212) 667-6908
Attn: General Counsel
or to such other address as to which the recipient shall have
informed the other party in writing.
Unless specifically provided elsewhere, notice given as provided
above shall be deemed to have been given, if by personal
delivery, on the day of such delivery, and, if by facsimile and
mail, on the date on which such facsimile or mail is sent.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto caused their duly
authorized signatories to execute this Agreement as of the day
and year first written above.
THE ASIA TIGERS FUND, INC.
By:________________________________
Name:
Title:
ADVANTAGE ADVISERS, INC.
By:________________________________
Name:
Title:
