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 INDIA FUND, INC.
A Maryland Corporation
ARTICLE I
OFFICES
SECTION 1. Principal Office in Maryland. The India
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 one (1) 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.
