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SIGNATURE MARY JANE MALONEY
TITLE MANAGER
<TABLE> <S> <C>
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<CIK> 0000919898
<NAME> THE CENTRAL EUROPEAN VALUE FUND, INC.
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</TABLE>
EXHIBIT INDEX
EXHIBIT A:
ATTACHMENT TO ITEM 77B: ACCOUNTANT'S REPORT ON INTERNAL CONTROL
EXHIBIT B:
ATTACHMENT TO ITEM 77Q1(a): COPIES OF ANY MATERIAL AMENDMENTS TO THE
REGISTRANT'S CHARTER OR BY-LAWS
- -----------------------------------------------------------------------
EXHIBIT A:
Report of Independent Accountants
To the Board of Directors and Shareholders of
The Central European Value Fund, Inc.
In planning and performing our audit of the financial statements of The
Central European Value Fund, Inc. (the "Fund") for the year ended August 31,
1998, we considered its internal control, including controls for safeguarding
securities, in order to determine our auditing procedures for the purpose of
expressing our opinion on the financial statements and to comply with the
requirements of Form N-SAR, not to provide assurance on internal control.
The management of The Central European Value Fund, Inc. is responsible for
establishing and maintaining internal control. In fulfilling this
responsibility, estimates and judgments by management are required to assess
the expected benefits and related costs of controls. Generally, controls that
are relevant to an audit pertain to the entity's objective of preparing
financial statements for external purposes that are fairly presented in
conformity with generally accepted accounting principles. Those controls
include the safeguarding of assets against unauthorized acquisition, use or
disposition.
Because of inherent limitations in internal control, errors or fraud may occur
and not be detected. Also, projection of any evaluation of internal control
to future periods is subject to the risk that it may become inadequate because
of changes in conditions or that the effectiveness of the design and operation
may deteriorate.
Our consideration of internal control would not necessarily disclose all
matters in internal control that might be material weaknesses under standards
established by the American Institute of Certified Public Accountants. A
material weakness is a condition in which the design or operation of one or
more of the internal control components does not reduce to a relatively low
level the risk that misstatements caused by error or fraud in amounts that
would be material in relation to the financial statements being audited may
occur and not be detected within a timely period by employees in the normal
course of performing their assigned functions. However, we noted no matters
involving internal control and its operation, including controls for
safeguarding securities, that we consider to be material weaknesses as defined
above as of August 31, 1998.
This report is intended solely for the information and use of management and
the Board of Directors of the Fund and the Securities and Exchange Commission.
PricewaterhouseCoopers LLP
New York, New York
October 20, 1998
EXHIBIT B:
Copies of any material amendments to the registrants charter and by-laws.
(AS OF MAY 19, 1998)
AMENDED AND RESTATED BY-LAWS
OF
THE CENTRAL EUROPEAN VALUE FUND, INC.
A Maryland Corporation
ARTICLE I
OFFICES
SECTION 1. Principal Office in Maryland. The Central European Value Fund,
Inc. (the "Corporation") shall have a principal office in the City of
Baltimore, State of Maryland.
SECTION 2. Other Offices. The Corporation may have offices also at such
other places within and without the State of Maryland as the Board of
Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the stockholders of the
Corporation shall be held on a date not less than ninety (90) days nor more
than one hundred twenty (120) days following the end of the Corporation's
fiscal year fixed from time to time by the Board of Directors. An annual
meeting may be held at any place in or out of the State of Maryland and at any
time, each as may be determined by the Board of Directors and designated in
the notice of the meeting. Any business of the Corporation may be transacted
at an annual meeting without the purposes having been specified in the notice
unless otherwise provided by statute, the Corporation's Articles of
Incorporation, as amended from time to time (the "Charter"), or these By-Laws.
SECTION 2. Special Meetings. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's Charter, may be held at any place within the United States, and
may be called at any time by the Board of Directors or by the Chairman or the
President, and shall be called by the Secretary (or in his absence, an
Assistant Secretary) at the request in writing of stockholders entitled to
cast at least a majority of the votes entitled to be cast at the meeting upon
payment by such stockholders to the Corporation of the reasonably estimated
cost of preparing and mailing a notice of the meeting (which estimated cost
shall be provided to such stockholders by the Secretary of the Corporation).
A written request shall state the purpose or purposes of the proposed meeting.
SECTION 3. Notice of Meetings. Written or printed notice of the purpose or
purposes and of the time and place of every meeting of the stockholders shall
be given by the Secretary of the Corporation to each stockholder of record
entitled to vote at or to notice of the meeting, by placing the notice in the
mail at least ten (10) days, but not more than ninety (90) days, prior to the
date designated for the meeting addressed to each stockholder at his address
appearing on the books of the Corporation or supplied by the stockholder to
the Corporation for the purpose of notice. Notice of any meeting of
stockholders shall be deemed waived by any stockholder who attends the meeting
in person or by proxy, or who before or after the meeting submits a signed
waiver of notice that is filed with the records of the meeting.
SECTION 4. Notice of Stockholder Business.
(a) At any annual or special meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, the business must be (i) (A)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (B) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (C) otherwise
properly brought before the meeting by a stockholder in accordance with
Section 4(b) below and (ii) a proper subject under applicable law for
stockholder action. To be properly brought before a special meeting, the
business must be (i) (A) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, or (B)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors and (ii) a proper subject under applicable law for
stockholder action.
(b) For any stockholder proposal to be presented in connection with an annual
meeting of stockholders of the Corporation (other than proposals made under
Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), including any proposal relating to the nomination of a director to be
elected to the Board of Directors of the Corporation, the stockholder must
have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not less than
60 days nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days or delayed by more than 60
days from such anniversary date, notice by the stockholder to be timely must
be so delivered not earlier than the 90th day prior to such annual meeting and
not later than the close of business on the later of the 60th day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including such person's written consent
to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and of the beneficial owner, if any, on whose behalf the proposal
is made; and (c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (i) the
name and address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
stock of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(c) Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at any stockholder meeting except in accordance with the
procedures set forth in this Section 4. The Chairman of the stockholder
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with
the provisions of this Section 4, and if he should so determine, he shall so
declare to the meeting that any such business not properly brought before the
meeting shall not be considered or transacted.
SECTION 5. Quorum; Voting. Except as otherwise provided by statute or by the
Corporation's Charter, the presence in person or by proxy of stockholders of
the Corporation entitled to cast at least a majority of the votes entitled to
be cast shall constitute a quorum at each meeting of the stockholders. A
majority of the votes cast at a meeting at which a quorum is present is
sufficient to approve any matter which properly comes before the meeting,
except that a plurality of the votes cast at a meeting at which a quorum is
present shall be sufficient to elect directors. In the absence of a quorum,
the stockholders present in person or by proxy at the meeting, by majority
vote and without notice other than by announcement at the meeting, may adjourn
the meeting from time to time as provided in this Section 5 until a quorum
shall attend. The stockholders present at any duly organized meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
SECTION 6. Adjournment. Any meeting of the stockholders may be adjourned
from time to time, without notice other than by announcement at the meeting at
which the adjournment is taken. At any adjourned meeting at which a quorum
shall be present any action may be taken that could have been taken at the
meeting originally called. A meeting of the stockholders may not be adjourned
to a date more than one hundred twenty (120) days after the original record
date.
SECTION 7. Organization. At every meeting of the stockholders, the Chairman
of the Board, or in his absence or inability to act, the President, or in his
absence or inability to act, a Vice President, or in the absence or inability
to act of all the Vice Presidents, a chairman chosen by the stockholders,
shall act as chairman of the meeting. The Secretary, or in his or her absence
or inability to act, a person appointed by the chairman of the meeting, shall
act as secretary of the meeting and keep the minutes of the meeting.
SECTION 8. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 9. Proxies. A stockholder may vote the stock he owns of record
either in person or by written proxy signed by the stockholder or by his duly
authorized agent. Stockholders may authorize others to act as proxies by
means of facsimile signatures, electronic transmissions, internet
transmissions, telephone, 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) 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.
ECTION 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.
