PILGRIM SMALLCAP ASIA GROWTH FUND, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
Pilgrim SmallCap Asia Growth Fund, Inc., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The Corporation desires to amend and restate its Charter as
currently in effect. Therefore, the Charter of the Corporation is hereby amended
and restated by striking out in its entirety the existing Charter and
substituting in lieu thereof the following:
FIRST: The name of the corporation is "Pilgrim SmallCap Asia Growth
Fund, Inc."
SECOND: The purpose for which the corporation is formed and the
business or objects to be transacted, carried on and promoted by it, is to
act as an open-end investment company of the management type registered as
such with the Securities and Exchange Commission pursuant to the Investment
Company Act of 1940 and to exercise and generally to enjoy all of the
powers, rights and privileges granted to, or conferred upon, corporations
by the general laws of the State of Maryland now or hereafter in force.
THIRD: The address of the principal office of the corporation in the
State of Maryland is 300 East Lombard Street, Suite 1400, Baltimore,
Maryland 21202. The name and address of the resident agent in the State of
Maryland are: CT Corporation Trust, Inc., 300 East Lombard Street, Suite
1400, Baltimore, Maryland 21202.
FOURTH: (1) The total number of shares of stock which the Corporation
has authority to issue is one billion (1,000,000,000) shares of Common
Stock which are designated by series as follows: five hundred million
(500,000,000) shares are designated "Pilgrim Troika Dialog Russia Fund
Series" and five hundred million (500,000,000) shares are unclassified. All
of the shares of Common Stock of each series are designated as one class of
shares. The par value of the shares of each class is one tenth of one cent
($.001) per share.
(2) The aggregate par value of all the authorized shares of
stock is one million dollars ($1,000,000.00).
(3) The Board of Directors of the corporation is authorized,
from time to time, to fix the price or the minimum price or the
consideration or minimum consideration for, and to authorize the issuance
of, the shares of stock of the corporation and securities convertible into
shares of stock of the corporation.
(4) The Board of Directors of the corporation is authorized,
from time to time, to further classify or to reclassify, as the case may
be, any unissued shares of stock of the corporation by setting or changing
the preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms or conditions of
redemption of the stock.
(5) Subject to the power of the Board of Directors to
classify and reclassify unissued shares, the shares of each class of stock
of the corporation shall have the following preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption:
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(6) (a) (i) All consideration received by the corporation
for the issuance or sale of shares of the class together with all income,
earnings, profits and proceeds thereof, shall irrevocably belong to such
class for all purposes, subject only to the rights of creditors and to
effect the conversion of shares of any class of stock into another class of
stock of the corporation, and are herein referred to as "assets belonging
to" such class.
(ii) The assets belonging to such class shall be
charged with the liabilities of the corporation in respect of such class
and with such class' share of the general liabilities of the corporation,
in the latter case in proportion that the net asset value of such class
bears to the net asset value of all classes. The determination of the Board
of Directors shall be conclusive as to the allocation of liabilities,
including accrued expenses and reserves, to a class.
(iii) Dividends or distributions on shares of each
class, whether payable in stock or cash, shall be paid only out of
earnings, surplus or other assets belonging to such class.
(iv) In the event of the liquidation or dissolution of
the corporation, stockholders of each class shall be entitled to receive,
as a class, out of the assets of the corporation available for distribution
to stockholders, the assets belonging to such class and the assets so
distributable to the stockholders of such class shall be distributed among
such stockholders in proportion to the number of shares of such class held
by them.
(b) A series of Common Stock may be further classified by
the Board of Directors into two or more classes of stock that may be
invested together in the common investment portfolio in which the series is
invested. Notwithstanding the provisions of paragraph (5)(a) of this
Article FOURTH, if two or more classes are invested in a common investment
portfolio as a series, the shares of each such class of stock of the
corporation shall be subject to the following preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption, and, if there are
other classes of stock of another series invested in a different investment
portfolio, shall also be subject to the provisions of paragraph (5)(a) of
this Article FOURTH at the series level as if the classes within the series
were one class:
(i) The income and expenses of the series shall be
allocated among the classes in the series in accordance with the number of
shares outstanding of each such class or as otherwise determined by the
Board of Directors in a manner consistent with subparagraph (iii) below.
(ii) As more fully set forth in this paragraph (5)(b)
of Article FOURTH, the liabilities and expenses of the classes in the
series shall be determined separately from those of each other and,
accordingly, the net asset value, the dividends and distributions payable
to holders, and the amounts distributable in the event of liquidation of
the corporation to holders of shares of the corporation's stock may vary
from class to class within the series. Except for these differences and
certain other differences set forth in this paragraph (5) of Article FOURTH
or elsewhere in the Articles of Incorporation, the classes in the me series
shall have the same preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms
and conditions of redemption.
(iii) The dividends and distributions of investment
income and capital gains with respect to the classes in the series shall be
in such amounts as may be declared from time to time by the Board of
Directors, and such dividends and distributions may vary among the classes
in the series to reflect differing allocations of the expenses of the
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corporation among the classes and any resultant differences among the net
asset values per share of the classes, to such extent and for such purposes
as the Board of Directors may deem appropriate. The allocation of
investment income, capital gains, expenses and liabilities of the
corporation among the classes in the series shall be determined by the
Board of Directors in a manner that is consistent with an order, if any,
obtained from the Securities and Exchange Commission or any future
amendment to such order or any rule or interpretation under the Investment
Company Act of 1940, as amended.
(c) Except as provided below, on each matter submitted to a
vote of the stockholders, each holder of a share of stock shall be entitled
to one vote for each share standing in his name on the books of the
corporation irrespective of the class or series thereof. All holders of
shares of stock shall vote as a single class except as may otherwise be
required by law pursuant to any applicable order, rule or interpretation
issued by the Securities and Exchange Commission, or otherwise, or except
with respect to any matter which affects only one or more classes or series
of stock, in which case only the holders of shares of the class, classes or
series affected shall be entitled to vote.
(d) The proceeds of the redemption of shares of any class of
stock of the corporation may be reduced by the amount of any contingent
deferred sales charge or other charge (which charges may vary within and
among the classes) payable on such redemption pursuant to the terms of
issuance of such shares, all in accordance with the Investment Company Act
of 1940, applicable rules and regulations thereunder, and applicable rules
and regulations of the National Association of Securities Dealers, Inc.
("NASD").
(e) At such times as may be determined by the Board of
Directors (or with the authorization of the Board of Directors, by the
officers of the corporation) in accordance with the Investment Company Act
of 1940, applicable rules and regulations thereunder, and applicable rules
and regulations of the NASD and reflected in the corporation's current
registration statement, shares of a particular class of stock of the
corporation may be automatically converted into shares of another class of
stock of the corporation based on the relative net asset values of such
classes at the time of conversion, subject, however, to any conditions of
conversion that may be imposed by the Board of Directors (or with the
authorization of the Board of Directors, by the officers of the
corporation) and reflected in the corporation's current registration
statement as aforesaid.
Except as provided above, all provisions of the Articles of
Incorporation relating to stock of the corporation shall apply to shares
of, and to the holders of, all classes of stock.
(7) Notwithstanding any provisions of the Maryland General
Corporation Law requiring a greater proportion than a majority of the votes
of stockholders of all classes or of any class of stock entitled to be cast
in order to take or authorize any action, any such action may be taken or
authorized upon the concurrence of a majority of the aggregate number of
votes entitled to be cast thereon.
(8) The presence in person or by proxy of the holders of
one-third of the shares of stock of the corporation entitled to vote
(without regard to class) shall constitute a quorum at any meeting of the
stockholders, except with respect to any matter which, under applicable
statutes or regulatory requirements, requires approval by a separate vote
of one or more classes of stock, in which case the presence in person or by
proxy of the holders of one-third of the shares of stock of each class
required to vote as a class on the matter shall constitute a quorum.
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(9) The corporation may issue shares of stock in fractional
denominations to the same extent as its whole shares, and shares in
fractional denominations shall be shares of stock having proportionately to
the respective fractions represented thereby all the rights of whole
shares, including, without limitation, the right to vote, the right to
receive dividends and distributions and the right to participate upon
liquidation of the corporation, but excluding the right to receive a stock
certificate evidencing a fractional share.
(10) No holder of any shares of any class of the corporation
shall be entitled as of right to subscribe for, purchase, or otherwise
acquire any shares of any class which the corporation proposes to issue, or
any rights or options which the corporation proposes to issue or to grant
for the purchase of shares of any class or for the purchase of any shares,
bonds, securities, or obligations of the corporation which are convertible
into or exchangeable for, or which carry any rights to subscribe for,
purchase, or otherwise acquire shares of any class of the corporation; and
any and all of such shares, bonds, securities or obligations of the
corporation, whether now or hereafter authorized or created, may be issued,
or may be reissued if the same have been reacquired, and any and all of
such rights and options may be granted by the Board of Directors to such
persons, firms, corporations and associations, and for such lawful
consideration, and on such terms, as the Board of Directors in its
discretion may determine, without first offering the same, or any thereof,
to any said holder.
FIFTH: (1) The initial number of directors of the corporation is
eleven (11) and the names of those who will serve as such until the first
annual meeting or until their successors are duly elected and qualify are
as follows:
Al Burton
Paul S. Doherty
Robert B. Goode
Alan L. Gosule
Walter H. May
Jock Patton
David W.C. Putnam
John R. Smith
Robert W. Stallings
John G. Turner
David W. Wallace
The By-Laws of the corporation may fix the number of directors at a number
greater or less than that named in these Articles of Incorporation and may
authorize a majority of the entire Board of Directors to increase or
decrease the number of directors. The number of directors shall never be
less than the minimum number prescribed by the Maryland General Corporation
Law.
(2) The initial by-laws of the corporation shall be adopted by
the directors at their organizational meeting or by their informal written
action, as the case may be. Thereafter, the power to make, alter, and
repeal the by-laws of the corporation shall be vested in the Board of
Directors of the corporation.
(3) Any determination made in good faith by or pursuant to the
direction of the Board of Directors, as to: the amount of the assets,
debts, obligations, or liabilities of the corporation; the amount of any
reserves or charges set up and the propriety thereof; the time of or
purpose for creating such reserves or charges; the use, alteration or
cancellation of any reserves or charges (whether or not any debt,
obligation or liability for which such reserves or charges shall have been
created shall have been paid or discharged or shall be then or thereafter
required to be paid or discharged); the value of any investment or fair
value of any other asset of the corporation; the amount of net investment
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income; the number of shares of stock outstanding; the estimated expense in
connection with purchases or redemptions of the corporation's stock; the
ability to liquidate investments in an orderly fashion; the extent to which
it is practicable to deliver a cross-section of the portfolio of the
corporation in payment for any such shares, or as to any other matters
relating to the issue, sale, purchase, redemption and/or other acquisition
or disposition of investments or shares of the corporation, or the
determination of the net asset value of shares of the corporation shall be
final and conclusive, and shall be binding upon the corporation and all
holders of its shares, past, present and future, and shares of the
corporation are issued and sold on the condition and understanding that any
and all such determinations shall be binding as aforesaid.
SIXTH: (1) To the fullest extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation
Law, no director or officer of the corporation shall have any liability to
the corporation or its stockholders for damages. This limitation on
liability applies to events occurring at the time a person serves as a
director or officer of the corporation whether or not such person is a
director or officer at the time of any proceeding in which liability is
asserted.
(2) The corporation shall indemnify and advance expenses to its
currently acting and its former directors to the fullest extent that
indemnification of directors is permitted by the Maryland General
Corporation Law. The corporation shall indemnify and advance expenses to
its officers to the same extent as its directors and to such further extent
as is consistent with law. The Board of Directors may, through a by-law,
resolution or agreement, make further provisions for indemnification of
directors, officers, employees and agents to the fullest extent permitted
by the Maryland General Corporation Law.
(3) No provision of this Article SIXTH shall be effective (i) to
require a waiver of compliance with any provision of the Securities Act of
1933, or of the Investment Company Act of 1940, or of any valid rule,
regulation or order of the Securities and Exchange Commission thereunder or
(ii) to protect or purport to protect any director or officer of the
corporation against any liability to the corporation or its stockholders to
which he would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office.
(4) References to the Maryland General Corporation Law in this
Article SEVENTH are to the law as from time to time amended. No amendment
to the Articles of Incorporation of the corporation shall affect any right
of any person under this Article SIXTH based on any event, omission or
proceeding prior to such amendment.
SEVENTH: (1) Any holder of shares of stock of the corporation may
require the corporation to redeem and the corporation shall be obligated to
redeem at the option of such holder all or any part of the shares of the
corporation owned by said holder, at the redemption price, pursuant to the
method, upon the terms and subject to the conditions hereinafter set forth:
(a) The redemption price per share shall be the net asset
value per share determined at such time or times as the Board of Directors
of the corporation shall designate in accordance with any provision of the
Investment Company Act of 1940, any rule or regulation thereunder or
exemption or exception therefrom, or any rule or regulation made or adopted
by any securities association registered under the Securities Exchange Act
of 1934.
(b) Net asset value per share of a class shall be determined
by dividing:
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(i) The total value of the assets of such class, or in
the case of a series with more than one class, such class's proportionate
share of the total value of the assets of the series, such value determined
as provided in Subsection (c) below less, to the extent determined by or
pursuant to the direction of the Board of Directors, all debts, obligations
and liabilities of such class (which debts, obligations and liabilities
shall include, without limitation of the generality of the foregoing, any
and all debts, obligations, liabilities, or claims, of any and every kind
and nature, fixed, accrued and otherwise, including the estimated accrued
expenses of management and supervision, administration and distribution and
any reserves or charges for any or all of the foregoing, whether for taxes,
expenses or otherwise) but excluding such class's liability upon its shares
and its surplus, by
(ii) The total number of shares of such class outstanding.
The Board of Directors is empowered, in its absolute discretion, to
establish other methods for determining such net asset value whenever
such other methods are deemed by it to be necessary in order to enable
the corporation to comply with, or are deemed by it to be desirable
provided they are not inconsistent with, any provision of the
Investment Company Act of 1940 or any rule or regulation thereunder.
(c) In determining for the purposes of these Articles of
Incorporation the total value of the assets of the corporation at any time,
investments and any other assets of the corporation shall be valued in such
manner as may be determined from time to time by the Board of Directors.
(d) Payment of the redemption price by the corporation may
be made either in cash or in securities or other assets at the time owned
by the corporation or partly in cash and partly in securities or other
assets at the time owned by the corporation. The value of any part of such
payment to be made in securities or other assets of the corporation shall
be the value employed in determining the redemption price. Payment of the
redemption price shall be made on or before the seventh day following the
day on which the shares are properly presented for redemption hereunder,
except that delivery of any securities included in any such payment shall
be made as promptly as any necessary transfers on the books of the issuers
whose securities are to be delivered may be made. The corporation, pursuant
to resolution of the Board of Directors, may deduct from the payment made
for any shares redeemed a liquidating, redemption or similar charge as may
be determined by the Board of Directors from time to time.
(e) Redemption of shares of stock by the corporation is
conditional upon the corporation having funds or property legally available
therefor.
(2) The corporation, either directly or through an agent, may
repurchase its shares, out of funds legally available therefor, upon such
terms and conditions and for such consideration as the Board of Directors
shall deem advisable, by agreement with the owner at a price not exceeding
the net asset value per share as determined by the corporation at such time
or times as the Board of Directors of the corporation shall designate, less
any liquidating, redemption or similar charge as may be fixed by resolution
of the Board of Directors of the corporation from time to time, and take
all other steps deemed necessary or advisable in connection therewith.
(3) The corporation may cause the redemption, upon the terms set
forth in subsections (1)(a) through (e) and subsection 5 of this Article
SEVENTH, of shares of a class of stock held by a stockholder if the net
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asset value of the shares of stock is less than $500 or such other amount
not exceeding $5000 as may be fixed from time to time by the Board of
Directors (the "Minimum Amount") with respect to that class. The Board of
Directors may establish differing Minimum Amounts for each class of the
corporation's stock and for categories of holders of stock based on such
criteria as the Board of Directors may deem appropriate. The corporation
shall give the stockholder notice which shall be in writing personally
delivered or deposited in the mail, at least 30 days (or such other number
of days as may be specified from time to time by the Board of Directors)
prior to such redemption.
Notwithstanding any other provision of this Article SEVENTH, if
certificates representing such shares have been issued, the redemption
price need not be paid by the corporation until such certificates are
presented in proper form for transfer to the corporation or the agent of
the corporation appointed for such purpose; however, the redemption shall
be effective, in accordance with the resolution of the Board of Directors,
regardless of whether or not such presentation has been made.
(4) The obligations set forth in this Article SEVENTH may be
suspended or postponed as may be permissible under the Investment Company
Act of 1940 and the rules and regulations thereunder.
(5) The Board of Directors may establish other terms and
conditions and procedures for redemption, including requirements as to
delivery of certificates evidencing shares, if issued.
EIGHTH: All persons who shall acquire stock or other securities of the
corporation shall acquire the same subject to the provisions of the
corporation's Charter, as from time to time amended.
NINTH: From time to time any of the provisions of the Charter of the
corporation may be amended, altered or repealed, including amendments which
alter the contract rights of any class of stock outstanding, and other
provisions authorized by the Maryland General Corporation Law at the time
in force may be added or inserted in the manner and at the time prescribed
by said Law, and all rights at any time conferred upon the stockholders of
the corporation by its Charter are granted subject to the provisions of
this Article.
SECOND: The amendment and restatement of the Charter of the Corporation
herein made was recommended and advised by a majority of the Board of Directors
of the Corporation of the Corporation at a meeting held on July 26th, 2000, and
was approved by the shareholders of the Corporation at a meeting of such
shareholders held on _________________, 2000.
THIRD: The provisions set forth in the above Articles of Amendment and
Restatement are all of the provisions of the Corporation's Charter currently in
effect as hereby amended.
FOURTH: The current address of the principal office of the Corporation is
300 East Lombard Street, Suite 1400, Baltimore, Maryland 21202, and the
Corporation's current Resident Agent is CT Corporation Trust, Inc., whose
address is 300 East Lombard Street, Suite 1400, Baltimore, Maryland 21202.
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FIFTH: The Corporation currently has eleven (11) Directors; the Directors
currently in office are as follows:
Al Burton
Paul S. Doherty
Robert B. Goode
Alan L. Gosule
Walter H. May
Jock Patton
David W.C. Putnam
John R. Smith
Robert W. Stallings
John G. Turner
David W. Wallace
SIXTH: These Amended and Restated Articles do not increase the authorized
stock of the Corporation or the aggregate par value of such authorized stock.
IN WITNESS WHEREOF, Pilgrim SmallCap Asia Growth Fund, Inc., has caused
these Articles to be signed in its name and on its behalf by its Senior Vice
President, Michael J. Roland, and attested by its Secretary, James M. Hennessy,
on the 26th day of July, 2000.
THE UNDERSIGNED, Senior Vice President acknowledges these Articles of
Amendment and Restatement to be the corporate act of the Corporation and states
that, to the best of his knowledge, information and belief, the matters and
facts set forth herein with respect to the authorization and approval hereof are
true in all material respects and that this statement is made under the
penalties of perjury.
ATTEST: PILGRIM SMALLCAP ASIA GROWTH FUND, INC.
/s/ James M. Hennessy /s/ Michael J. Roland
---------------------------------- ----------------------------------(SEAL)
By: James M. Hennessy By: Michael J. Roland
Secretary Senior Vice President
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