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ARTICLES OF INCORPORATION
OF
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
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ARTICLE I.
THE UNDERSIGNED, Janet T. Yeung, whose post office address is c/o
Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd Street, New York
10022, being at least eighteen years of age, does hereby act as an
incorporator and form a corporation under and by virtue of the Maryland
General Corporation Law.
ARTICLE II.
NAME
The name of the Corporation is THE EMERGING MARKETS INFRASTRUCTURE
FUND, INC.
ARTICLE III.
PURPOSES AND POWERS
The Corporation is formed to conduct and carry on the business of a
closed-end investment company registered under the Investment Company Act of
1940, as amended.
ARTICLE IV.
PRINCIPAL OFFICE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in
the State of Maryland is c/o The Corporation Trust Company Incorporated, 32
South Street, Baltimore, Maryland 21202. The name of the resident agent of
the Corporation in the State of Maryland is The Corporation Trust Company
Incorporated. The post office address of the resident agent is 32 South
Street, Baltimore, Maryland 21202.
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ARTICLE V.
CAPITAL STOCK
(1) The total number of shares of capital stock that the Corporation
shall have authority to issue is one hundred million (100,000,000) shares, of
the par value of one tenth of one cent ($.001) per share and of the aggregate
par value of one hundred thousand dollars ($100,000), all of which one
hundred million (100,000,000) shares are initially designated Common Stock.
(2) The Corporation may issue fractional shares. Any fractional share
shall carry proportionally the rights of a whole share including, without
limitation, the right to vote and the right to receive dividends. A
fractional share shall not, however, have the right to receive a certificate
evidencing it.
(3) All persons who shall acquire stock in the Corporation shall
acquire the same subject to the provisions of these Articles of Incorporation
and the Bylaws of the Corporation, as from time to time amended.
(4) No holder of stock of the Corporation by virtue of being such a
holder shall have any right to purchase or subscribe for any shares of the
Corporation's capital stock or any other security that the Corporation may
issue or sell other than a right that the Board of Directors in its
discretion may determine to grant.
(5) The Board of Directors shall have authority by resolution to
classify and reclassify any authorized but unissued shares of capital stock
from time to time by setting or changing in any one or more respects the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or terms or conditions of
redemption of the capital stock.
(6) Notwithstanding any provision of law requiring any action to be
taken or authorized by the affirmative vote of the holders of a greater
proportion of the votes of all classes or of any class of stock of the
Corporation, such action shall be effective and valid if taken or authorized
by the affirmative vote of a majority of the total number of votes entitled
to be cast thereon, except as otherwise provided in these Articles of
Incorporation.
ARTICLE VI.
BOARD OF DIRECTORS
(1) The initial number of directors of the Corporation shall be two.
The number of directors of the Corporation may be changed by the Bylaws or
by the Board of Directors pursuant to the Bylaws. The number of directors
shall in no event be greater than nine (9).
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The names of the directors who shall act until the first annual meeting of
shareholders or until their successors are duly chosen and qualified are:
Emilio Bassini
Piers Playfair
(2) Beginning with the first annual meeting of stockholders held
after the initial public offering of the shares of the Corporation (the
"initial annual meeting"), the Board of Directors shall be divided into three
classes: Class I, Class II and Class III. The terms of office of the classes
of Directors elected at the initial annual meeting shall expire at the times
of the annual meetings of the stockholders as follows: Class I on the next
annual meeting, Class II on the second next annual meeting and Class III on
the third next annual meeting, or thereafter in each case when their
respective successors are elected and qualified. At each subsequent annual
election, 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, or thereafter in each case when
their respective successors are elected and qualified. The number of
Directorships shall be apportioned among the classes so as to maintain the
classes as nearly equal in number as possible.
(3) A Director may be removed with or without cause, but only by
action of the stockholders taken by the holders of at least seventy-five
percent (75%) of the votes entitled to be cast.
(4) In furtherance, and not in limitation, of the powers conferred by
the laws of the State of Maryland, the Board of Directors is expressly
authorized:
(i) To make, alter or repeal the Bylaws of the Corporation,
except as otherwise required by the Investment Company Act of 1940, as
amended.
(ii) From time to time to determine whether and to what extent
and at what times and places and under what conditions and regulations the
books and accounts of the Corporation, or any of them other than the stock
ledger, shall be open to the inspection of the stockholders. No stockholder
shall have any right to inspect any account or book or document of the
Corporation, except as conferred by law or authorized by resolution of the
Board of Directors.
(iii) Without the assent or vote of the stockholders, to
authorize the issuance from time to time of shares of the stock of any class
of the Corporation, whether now or hereafter authorized, and securities
convertible into shares
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of stock of the Corporation of any class or classes,
whether now or hereafter authorized, for such consideration as the Board of
Directors may deem advisable.
(iv) Without the assent or vote of the stockholders, to
authorize and issue obligations of the Corporation, secured and unsecured, as
the Board of Directors may determine, and to authorize and cause to be
executed mortgages and liens upon the real or personal property of the
Corporation.
(v) In addition to the powers and authorities granted
herein and by statute expressly conferred upon it, the Board of Directors is
authorized to exercise all powers and do all acts that may be exercised or
done by the Corporation pursuant to the provisions of the laws of the State
of Maryland, these Articles of Incorporation and the Bylaws of the
Corporation.
(5) Any determination made in good faith by or pursuant to the
direction of the Board of Directors, with respect to the amount of assets,
obligations or liabilities of the Corporation, as to the amount of net income
of the Corporation from dividends and interest for any period or amounts at
any time legally available for the payment of dividends, as to the amount of
any reserves or charges set up and the propriety thereof, as to the time of
or purpose for creating reserves or as to the use, alteration or cancellation
of any reserves or charges (whether or not any obligation or liability for
which the reserves or charges have been created has been paid or discharged
or is then or thereafter required to be paid or discharged), as to the value
of any security owned by the Corporation or as to the determination of the
net asset value of shares of any class of the Corporation's capital stock,
shall be final and conclusive, and shall be binding upon the Corporation and
all holders of its capital stock, past, present and future, and shares of the
capital stock of the Corporation are issued and sold on the condition and
understanding, evidenced by the purchase of shares of capital stock or
acceptance of share certificates, that any and all such determinations shall
be binding as aforesaid. No provision of these Articles of Incorporation of
the Corporation shall be effective to (i) require a waiver of compliance with
any provision of the Securities Act of 1933, as amended, or the Investment
Company Act of 1940, as amended, or of any valid rule, regulation or order of
the Securities and Exchange Commission under those Acts or (ii) protect or
purport to protect any director or officer of the Corporation against any
liability to the Corporation or its security holders to which he 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.
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ARTICLE VII.
CERTAIN TRANSACTIONS
(1) Except as otherwise provided in this Article VII, at least 75% of
the votes entitled to be cast by stockholders, in addition to the affirmative
vote of at least 75% of the entire Board of Directors, shall be necessary to
effect any of the following actions:
(i) any amendment to these Articles to make the Corporation's
Common Stock a "redeemable security" or to convert the corporation from a
"closed-end company" to an "open-end company" (as such terms are defined in
the Investment Company Act of 1940, as amended) or any amendment to Article
III, unless the Continuing Directors (as hereinafter defined) of the
Corporation, by a vote of at least 75% of such Directors, approve such
amendments in which case the affirmative vote of the holders of a majority of
the votes entitled to be cast by stockholders shall be required to approve
such transaction;
(ii) any stockholder proposal as to specific investment
decisions made or to be made with respect to the Corporation's assets;
(iii) any proposal as to the voluntary liquidation or
dissolution of the Corporation or any amendment to these Articles of
Incorporation to terminate the existence of the Corporation, unless the
Continuing Directors of the Corporation, by a vote of at least seventy-five
percent (75%) of such Directors, approve such proposals in which case the
affirmative vote of a majority of the votes entitled to be cast by
stockholders shall be required to approve such transaction; or
(iv) any Business Combination (as hereinafter defined) unless
either the condition in clause (A) below is satisfied or all of the
conditions in clauses (B), (C), (D), (E) and (F) below are satisfied, in
which case paragraph (c) below shall apply.
(A) The Business Combination shall have been approved by
a vote of at least 75% of the Continuing Directors.
(B) The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received per
share by holders of any class of outstanding Voting Stock (as hereinafter
defined) in such Business Combination shall be at least equal to the higher
of the following:
(x) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers fees) paid by an
Interested Party (as
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hereinafter defined) for any shares of such Voting Stock acquired by it (aa)
within the two-year period immediately prior to the first public announcement
of the proposal of the Business Combination (the "Announcement Date"), or
(bb)(i) in the Threshold Transaction (as hereinafter defined), or (ii) in any
period between the Threshold Transaction and the consummation of the Business
Combination, whichever is higher; and
(y) the net asset value per share of such
Voting Stock on the Announcement Date or on the date of the Threshold
Transaction, whichever is higher.
(C) The consideration to be received by holders of
the particular class of outstanding Voting Stock shall be in cash or in the
same form as the Interested Party has previously paid for shares of any class
of Voting Stock. If the Interested Party has paid for shares of any class of
Voting Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting Stock previously
acquired by it.
(D) After the occurrence of the Threshold Transaction,
and prior to the consummation of such Business Combination, such Interested
Party shall not have become the beneficial owner of any additional shares of
Voting Stock except by virtue of the Threshold Transaction.
(E) After the occurrence of the Threshold Transaction,
such Interested Party shall not have received the benefit, directly or
indirectly (except proportionately as a shareholder of the Corporation), of
any loans, advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(F) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (or any subsequent
provisions replacing such Acts, rules or regulations) shall be prepared and
mailed by the Interested Party, at such Interested Party's expense, to the
shareholders of the Corporation at least 30 days prior to the consummation of
such Business Combination (whether or not such proxy or information statement
is required to be mailed pursuant to such Acts or subsequent provisions).
(b) For the purposes of this Article and Article IX:
(i) "Business Combination" shall mean any of the
transactions described or referred to in any one or more of the following
subparagraphs:
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(A) any merger, consolidation or share exchange of the
Corporation with or into any other person;
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions
in any 12 month period) to or with any other person of any assets of the
Corporation having an aggregate Fair Market Value of $1,000,000 or more
except for portfolio transactions of the Corporation effected in the ordinary
course of the Corporation's business;
(C) the issuance or transfer by the Corporation (in one
transaction or a series of transactions in any 12 month period) of any
securities of the Corporation to any other person in exchange for cash,
securities or other property (or a combination thereof) having an aggregate
Fair Market Value of $1,000,000 or more excluding (x) sales of any securities
of the Corporation in connection with a public offering thereof, (y)
issuances of any securities of the Corporation pursuant to a dividend
reinvestment plan adopted by the Corporation or pursuant to a stock dividend
and (z) issuances of any securities of the Corporation upon the exercise of
any stock subscription rights distributed by the Corporation;
(ii) "Continuing Director" means any member of the Board of
Directors of the Corporation who is not an Interested Party or an Affiliate
(as hereinafter defined) of an Interested Party and has been a member of the
Board of Directors for a period of at least 12 months (or since the
Corporation's commencement of operations, if that period is less than 12
months) or is a successor of a Continuing Director who is unaffiliated with
an Interested Party and is recommended to succeed a Continuing Director by a
majority of the Continuing Directors then on the Board of Directors.
(iii) "Interested Party" shall mean any person, other than an
investment company advised by the Corporation's initial investment manager or
any of its Affiliates, which enters, or proposes to enter, into a Business
Combination with the Corporation.
(iv) "Person" shall mean an individual, a corporation, a trust or
a partnership.
(v) "Voting Stock" shall mean capital stock of the Corporation
entitled to vote generally in the election of directors.
(vi) A person shall be a "beneficial owner" of any Voting Stock:
(A) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns directly or indirectly;
or
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(B) which such person or any of its Affiliates or
Associates has the right to acquire (whether such right is excercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or
(C) which is beneficially owned, directly or indirectly,
by any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
(vii) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934.
(viii) "Fair Market Value" means
(A) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the relevant date of a share
of such stock on the New York Stock Exchange, or if such stock is not listed
on such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the highest
closing sale price (if such stock is a National Market System security) or
the highest closing bid quotation (if such stock is not a National Market
System security) with respect to a share of such stock during the 30-day
period preceding the relevant date on the National Association of Securities
Dealers, Inc. Automated Quotation Systems (NASDAQ) or any system then in use,
or if no such quotations are available, the fair market value on the relevant
date of the share of such stock as determined by at least 75% of the
Continuing Directors in good faith, and
(B) in the case of property other than cash or stock, the
fair market value of such property on the relevant date as determined by at
least 75% of the Continuing Directors in good faith.
(ix) "Threshold Transaction" means the transaction by or as a
result of which an Interested Party first becomes the beneficial owner of
Voting Stock.
(x) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraph (a)(iv)(B) above shall include the shares
of Common Stock and/or the shares of any other class of outstanding Voting
Stock retained by the holders of such shares.
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(xi) Continuing Directors of the Corporation, acting by a vote
of at least 75%, shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine (a) the number of shares of Voting Stock beneficially owned by any
person, (b) whether a person is an Affiliate or Associate of another, (c)
whether the requirements of subparagraph (a)(iv) above have been met with
respect to any Business Combination, and (d) whether the assets which are the
subject of any Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation in any Business
Combination has, an aggregate Fair Market Value of $1,000,000 or more.
(c) if any Business Combination described in paragraph (b)(i)(A)
or (B) (if the merger, consolidation, share exchange or transfer or other
disposition of assets constitutes a merger, consolidation, share exchange or
transfer of all or substantially all of the assets of the Corporation with
respect to which stockholder approval is required under Maryland law) is
approved by a vote of 75% of the Continuing Directors or all of the
conditions in paragraph (a)(iv)(B), (C), (D), (E) and (F) are satisfied, a
majority of the votes entitled to be cast by stockholders shall be required
to approve such transaction. If any other Business Combination is approved by
a vote of 75% of the Continuing Directors or all of the conditions in
paragraph (a)(iv)(B), (C), (D), (E) and (F) are satisfied, no stockholder
vote shall be required to approve such transaction unless otherwise provided
in these Articles of Incorporation or required by law.
ARTICLE VIII.
LIMITATIONS ON LIABILITY; INDEMNIFICATION
(1) To the fullest extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation Law,
no director or officer of the Corporation shall have any liability to the
Corporation or its stockholders for damages. This limitation on liability
applies to events occurring at the time a person serves as a director or
officer of the Corporation whether or not such person is a director or
officer at the time of any proceeding in which liability is asserted.
(2) 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,
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settlements and reasonable expenses (including attorneys' fees) actually
incurred by such person in connection with such action, suit or proceeding to
the fullest extent permissible under the Maryland General Corporation Law,
the Securities Act of 1933 and the Investment Company Act of 1940, as such
statutes are now or hereafter in force. In addition, the Corporation shall
also advance expenses to its currently acting and its former directors and
officers to the fullest extent that such advances of expenses is
permitted by the Maryland General Corporation Law, the Securities Act of 1933
and the Investment Company Act of 1940. The Board of Directors may by Bylaw,
resolution or agreement make further provision for indemnification of
directors, officers, employees and agents to the fullest extent permitted by
the Maryland General Corporation Law.
(3) No provision of this Article shall be effective to protect or
purport to protect any director or officer of the Corporation against any
liability to the Corporation or its security holders to which he 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.
(4) References to the Maryland General Corporation Law in this
Article are to that law as from time to time amended. No amendment to the
charter of the Corporation shall affect any right of any person under this
Article based on any event, omission or proceeding prior to the amendment.
ARTICLE IX.
AMENDMENTS
(1) The Corporation reserves the right from time to time to make any
amendment to its Charter, now or hereafter authorized by law, including any
amendment that alters the contract rights, as expressly set forth in its
Charter, of any outstanding stock.
(2) Notwithstanding Paragraph (1) of this Article or any other
provision of these Articles of Incorporation, no amendment to these Articles
of Incorporation shall amend, alter, change or repeal any of the provisions
of paragraph (1), (2) or (3) of Article VI unless the amendment effecting
such amendment, alteration, change or repeal shall receive the affirmative
vote of at least seventy-five percent (75%) of the votes entitled to be cast
by stockholders and the affirmative vote of at least seventy-five percent
(75%) of the entire Board of Directors, unless the amendment shall have been
approved by at least 75% of the Continuing Directors, in which case the
affirmative vote of a majority of the votes entitled to be cast shall be
sufficient to approve the amendment, and no amendment to these Articles of
Incorporation shall amend, alter, change or repeal Articles VII or IX unless
the amendment effecting such amendment, alteration, change or repeal shall
receive the affirmative vote of at least seventy-five percent (75%) of the
votes entitled to be cast by stockholders and a vote of at least seventy-five
percent (75%) of the entire Board of Directors.
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IN WITNESS WHEREOF, I have adopted and signed these Articles of
Incorporation and do hereby acknowledge that the adoption and signing are my
act.
Dated the 12th day of October, 1990.
/S/ JANET T. YEUNG
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Janet T. Yeung,
Incorporator
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