EXHIBIT INDEX
EXHIBIT A:
Attachment to item 77Q1: Amended and Restated By-laws
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EXHIBIT A:
(AS OF MAY 23, 2000)
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, subject to procedures set forth in Section
4 and this Section, 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, including, but not limited to, nominations
of persons for election to the Board of Directors, 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 (or
any duly authorized committee thereof), (B) otherwise properly brought before
the meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof), or (C) otherwise properly brought before the
meeting by a stockholder of the Corporation (1) who was a stockholder of
record at the time of giving notice provided for in Section 4(b) below and on
the record date for the determination of stockholders entitled to vote at such
meeting, (2) who is entitled to vote at the meeting and (3) who complied with
the notice(s) procedures set forth in 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, (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 of the Corporation (1) who was a
stockholder of record at the time of giving notice provided for in Section
4(b) below and on the record date for the determination of stockholders
entitled to vote at such meeting, (2) who is entitled to vote at the meeting
and (3) who complied with the notice(s) procedures set forth in Section 4(b)
below, and (ii) a proper subject under applicable law for stockholder action.
(b) For any stockholder proposal to be presented in connection
with an annual or special 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 as provided in this Section 4. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation (a) in the case of an annual
meeting, not less than ninety (90) days nor more than one hundred twenty (120)
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 thirty (30) days or delayed by more than sixty (60) days
from such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the later of the
ninetieth (90th) 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; and (b) in the case of a special meeting of stockholders called for the
purpose of electing directors, not later than the close of business on the
tenth day following the day on which notice of the date of the special meeting
was mailed or public disclosure of the date of the special meeting was made,
whichever first occurs. 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 and the rules and regulations promulgated thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (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, (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, (iii) a description
of all arrangements or understanding between such stockholder and each
proposed nominee or any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy
at the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be made in
connection with solicitations of proxies for election of directors pursuant to
Regulation 14A under the Exchange Act and the rules and regulations
promulgated thereunder.
(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 and no person shall be
eligible for election as a director of the Corporation unless nominated 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. No
adjournment or postponement of a meeting of stockholders shall commence a new
period for the giving of notice of a stockholder proposal hereunder.
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.
