Registration Statement of an Open-End Management Investment Company — Form N-1A
Filing Table of Contents
Document/Exhibit Description Pages Size
1: N-1A EL Registration Statement 60 296K
2: EX-1 Articles of Amendment and Restatement 11 38K
3: EX-2 By-Laws 18 36K
4: EX-5 Investment Management Agreement 5 34K
5: EX-6.A Underwriting Agreement 5 26K
6: EX-11 Independent Auditor's Consent 1 7K
7: EX-15.A Service and Distribution Plan - Class A Shares 4 16K
8: EX-15.B Service and Distribution Plan 4 16K
9: EX-16 Computation of Performance Quotations 1 6K
10: EX-18 Multiple Class Plan 6 22K
11: EX-27 Financial Data Schedule 2± 9K
EX-2 — By-Laws
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PILGRIM AMERICA BANK AND THRIFT FUND, INC.
(a Maryland corporation)
BY-LAWS
(Amended and Restated as of ________, 1997)
ARTICLE I
STOCKHOLDERS
Section 1. Place of Meeting. All meetings of the stockholders
shall be held at the principal office of the Corporation in the State of
Maryland or at such other place within or without the State of Maryland as may
from time to time be designated by the Board of Directors and stated in the
notice of meeting.
Section 2. Annual Meetings. An annual meeting of stockholders
for the election of directors and the transaction of such other business as may
properly come before the meeting shall be held at such time and place as the
Board of Directors shall select. The Corporation shall not be required to hold
an annual meeting of its stockholders in any year in which the election of
directors is not required to be acted upon under the Investment Company Act of
1940, as amended.
Section 3. Special or Extraordinary Meetings. Special or
extraordinary meetings of the stockholders for any purpose or purposes may be
called by the Chairman of the Board of Directors, if any, or by the President or
by the Board of Directors. In addition, such special or extraordinary meetings
shall be called by the Secretary upon receipt of the request in writing
signed by stockholders entitled to cast at least 25% of all the votes entitled
to be cast at the meeting stating the purpose of the meeting and the matters
proposed to be acted on and upon payment by such stockholders of the estimated
costs of preparing and mailing a notice of the meeting.
Section 4. Notice of Meeting of Stockholders. Not less than
ten days' and not more than ninety days' written or printed notice of every
meeting of stockholders, stating the time and place thereof (and the purpose of
any special or extraordinary meeting), shall be given to each stockholder
entitled to vote thereat and each other stockholder entitled to notice, by
leaving the same with him or at his residence or usual place of business or by
mailing it, postage prepaid, and addressed to him at his address as it appears
upon the books of the Corporation.
Each person who is entitled to notice of any meeting waives
notice if he is present at the meeting, attends in person or by proxy or who
either before or after the meeting signs a waiver of notice which is filed with
the records of stockholders meetings.
Section 5. Closing of Transfer Books, Record Dates. The Board
of Directors may direct that the stock transfer books of the Corporation be
closed for a stated period not exceeding twenty days for the purpose of making
any proper determination with respect to stockholders, including which
stockholders are entitled to notice of and to vote at the meeting, receive a
dividend or be allotted other rights. If such books are closed for the purpose
of determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days immediately
preceding such meeting. In lieu of providing for
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the closing of the stock transfer books, the Board of Directors may set a date,
not exceeding ninety days and not less than ten days preceding the date of any
meeting of stockholders, and not exceeding ninety days preceding any dividend
payment date or any date for the allotment of rights, as a record date for the
determination of the stockholders entitled to notice of and to vote at such
meeting, or entitled to receive such dividends or rights, as the case may be;
and only stockholders of record on such date shall be entitled to notice of and
to vote at such meeting or to receive such dividends or rights, as the case may
be.
Section 6. Quorum, Adjournment of Meetings. The presence in
person or by proxy of stockholders entitled to cast a majority of all votes
entitled to be cast at the meeting shall constitute a quorum at all meetings 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 a majority of the shares of stock of each class required to vote
as a class on the matter shall constitute a quorum; and a majority of all votes
cast at a meeting at which a quorum is present is sufficient to approve any
matter which properly comes before the meeting, unless otherwise provided by
applicable law, the Articles of Incorporation or the By-Laws of the Corporation.
If at any meeting of the stockholders there shall be less than a quorum present,
the stockholders present at such meeting may, without further notice, adjourn
the same from time to time (but not more than 120 days after the original record
date for such meeting) until a quorum shall attend, but no business shall be
transacted at any such adjourned meeting except such as might have been lawfully
transacted had the meeting not been adjourned.
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Section 7. Voting and Inspectors. At all meetings of
stockholders every stockholder of record entitled to vote thereat shall be
entitled to vote at such meeting either in person or by proxy appointed by
instrument in writing subscribed by such stockholder or his duly authorized
attorney. Unless a proxy provides otherwise, such proxy is not valid more than
eleven months after its date.
At any election of Directors, the Board of Directors prior
thereto may, or, if they have not so acted, the Chairman of the meeting may, and
upon the request of the holders of ten percent (10%) of the stock entitled to
vote at such election shall, appoint two inspectors of election who shall first
subscribe an oath or affirmation to execute faithfully the duties of inspectors
at such election with strict impartiality and according to the best of their
ability, and shall after the election make a certificate of the result of the
vote taken. No candidate for the office of Director shall be appointed such
Inspector.
The Chairman of the meeting may cause a vote by ballot to be
taken upon any election or matter, and such vote shall be taken upon the request
of the holders of ten percent (10%) of the stock entitled to vote on such
election or matter.
Section 8. Conduct of Stockholders Meetings. The meetings of
the stockholders shall be presided over by the Chairman of the Board, or if he
shall not be present or if there is no Chairman, by the President, or if he
shall not be present, by a Vice-President, or if neither the President nor any
Vice-President is present, by a chairman to be elected at the meeting. The
Secretary of the Corporation, if present, shall act as Secretary of such
meetings, or if he is not
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present, an Assistant Secretary shall so act, if neither the Secretary nor an
Assistant Secretary is present, then the meeting shall elect a secretary.
Section 9. Concerning Validity of Proxies, Ballots, Etc. At
every meeting of the stockholders, all proxies shall be received and taken in
charge of and all ballots shall be received and canvassed by the secretary of
the meeting, who shall decide all questions touching the qualification of
voters, the validity of the proxies, and the acceptance or rejection of votes,
unless inspectors of election shall have been appointed as provided in Section
7, in which event such inspectors of election shall decide all such questions.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office. The business and
property of the Corporation shall be conducted and managed under the direction
of a Board of Directors consisting of six Directors, which number may be
increased and decreased as provided in Section 2 of this Article. Directors
shall be elected annually, by written ballot at the annual meeting of
stockholders or a special meeting held for that purpose; provided, however, that
if no annual meeting of the stockholders of the Corporation is required to be
held in a particular year pursuant to Section 2 of Article I of these By-Laws,
Directors shall be elected at the next annual meeting held. The term of office
of each Director shall be from the time of his or her election and
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qualification until the election of Directors next succeeding his or her
election and until his or her successor shall have been elected and shall have
been qualified.
Section 2. Increase or Decrease in Number of Directors. The
Board of Directors, by the vote of a majority of the entire Board, may increase
the number of Directors to a number not exceeding fifteen, and may elect
Directors to fill the vacancies created by any such increase in the number of
Directors until the next annual meeting held as provided in Article I, Section 2
hereof or until their successors are duly elected and qualify. The Board of
Directors, by the vote of a majority of the entire Board, may decrease the
number of Directors to a number not less than three but any such decrease shall
not affect the term of office of any Director. Vacancies occurring other than by
reason of any such increase shall be filled as provided by the Maryland General
Corporation Law.
Section 3. Place of Meeting. The Directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside the State of Maryland, at any office or offices of the Corporation or at
any such other place as they may from time to time determine, and in the case of
meetings, as they may from time to time determine or as shall be specified in
the respective notices of such meetings or waivers of notice thereof.
Section 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and on such notice, if any, as the
Directors may from time to time determine.
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Section 5. Special Meetings. Special meetings of the Board of
Directors may be held from time to time upon call of the Chairman of the Board
of Directors, if any, the President or two or more of the Directors, by oral or
telegraphic or written notice duly served on each Director not less than one
business day before such meeting or if sent or mailed to each Director not less
than three business days before such meeting. Each Director who is entitled to
notice waives such notice if he either before or after the meeting signs a
waiver of the notice which is filed with the minutes of the meeting or is
present at the meeting. Such notice or waiver of notice need not state the
purpose or purposes of such meeting.
Section 6. Quorum. One third of the Directors then in office
(but in no event less than two Directors), shall constitute a quorum for the
transaction of business. If at any meeting of the Board there shall be less than
a quorum present, a majority of those present may adjourn the meeting from time
to time until a quorum shall have been obtained. The act of the majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Directors, except as may be otherwise specifically provided by applicable
law, by the Articles of Incorporation or by these By-Laws.
Section 7. Telephonic Meetings, Etc. The members of the Board
of Directors or any committee of the Board of Directors may participate in a
meeting by means of a conference telephone or similar communications equipment
if all persons participating in such meeting can hear each other at the same
time, and participation in a meeting by these means constitutes presence in
person at such meeting.
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Section 8. Executive Committee. The Board of Directors may, by
the affirmative vote of a majority of the entire Board, elect from the Directors
an Executive Committee to consist of such number of Directors (but not less than
two) as the Board may from time to time determine. The Board of Directors by
such affirmative vote shall have power at any time to change the members of such
Committee and may fill vacancies in the Committee by election from the
Directors. When the Board of Directors is not in session, the Executive
Committee shall have and may exercise any or all of the powers of the Board of
Directors in the management of the business and affairs of the Corporation
(including the power to authorize the seal of the Corporation to be affixed to
all papers which may require it) except as provided by law and except the power
to increase or decrease the size of, or fill vacancies on the Board. The
Executive Committee may fix its own rules of procedure, and may meet, when and
as provided by such rules or by resolution of the Board of Directors, but in
every case the presence of majority shall be necessary to constitute a quorum.
In the absence of any member of the Executive Committee the members thereof
present at any meeting, whether or not they constitute a quorum, may appoint a
member of the Board of Directors to act in the place of such absent member.
Section 9. Other Committees. The Board of Directors, by the
affirmative vote of a majority of the entire Board, may appoint other committees
which shall in each case consist of such number of members (not less than two)
and shall have and may exercise such powers as the Board may determine in the
resolution appointing them. A majority of all members of any such
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committee may determine its action, and fix the time and place of its meetings,
unless the Board of Directors shall otherwise provide. The Board of Directors
shall have power at any time to change the members and powers of any such
committee, to fill vacancies, and to discharge any such committee.
Section 10. Informal Action by Directors. Except to the extent
otherwise specifically provided by applicable law, any action required or
permitted to be taken at any meeting of the Board of Directors or any Committee
thereof may be taken without a meeting, if a written consent to such action is
signed by all members of the Board or Committee and is filed with the minutes of
proceedings of the Board or Committee.
Section 11. Compensation of Directors. Directors shall be
entitled to receive such compensation from the Corporation for their services as
Directors as may from time to time be voted by the Board of Directors.
ARTICLE III
OFFICERS
Section 1. Executive Officers. The executive officers of the
Corporation shall be chosen by the Board of Directors. These may include a
Chairman of the Board, and shall include a President, one or more Vice
Presidents (the number thereof to be determined by the Board of Directors), a
Secretary and a Treasurer. The Chairman of the Board, if any, shall be selected
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from among the Directors. The Board of Directors may also in its discretion
appoint Assistant Secretaries, Assistant Treasurers, and other officers, agents
and employees, who shall have such authority and perform such duties as the
Board may determine. The Board of Directors may fill any vacancy which may occur
in any office. Any two offices, except those of President and Vice President,
may be held by the same person, but no officer shall execute, acknowledge or
verify any instrument in more than one capacity, if such instrument is required
by law or these By-Laws to be executed, acknowledged or verified by two or more
officers.
Section 2. Term of Office. Unless otherwise specifically
determined by the Board of Directors, the term of office of all officers shall
be one year and until their respective successors are chosen and qualify,
provided, however, that said term of office shall not create any contract rights
in the officer. If the Board of Directors in its judgment finds that the best
interests of the Corporation will be served, the Board of Directors may remove
any officer of the Corporation at any time with or without cause.
Section 3. The President shall be the chief executive officer
and head of the Corporation and, subject to the Board of Directors, shall have
the general control and management of the business and affairs of the
Corporation. If no Chairman of the Board be appointed, or, if appointed, said
Chairman is absent, the President shall, if present, preside at all meetings of
the stockholders and the Board of Directors.
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Section 4. The Chairman of the Board shall preside at all
meetings of the stockholders and the Board of Directors at which he shall be
present. Subject to the provisions of Section 2, he shall have such other powers
and duties as shall be prescribed by the Board of Directors, and shall undertake
such other assignments as may be requested by the President.
Section 5. The Chairman or one or more Vice Presidents shall
have and exercise such powers and duties of the President in the absence or
inability of the President as may be assigned to them, respectively, by
resolution of the Board of Directors or, to the extent not so assigned, as the
President may assign to them, respectively. In the absence or inability of the
President, the powers and duties of the President not assigned by the Board of
Directors or the President shall evolve upon the Chairman or in his absence the
Vice Chairman or in his absence the senior Vice President.
Section 6. The Secretary shall have custody of the seal of the
Corporation. He shall keep the minutes of the meetings of the stockholders,
Board of Directors and any committees thereof, and he shall attend to the giving
and serving of all notices of the Corporation. He shall have charge of the stock
certificate book and such other books and papers as the Board may direct; and he
shall perform such other duties as may be incidental to his office or as may be
assigned to him by the Board of Directors. He shall also keep or cause to be
kept a stock book, containing the names, alphabetically arranged, of all persons
who are stockholders of the Corporation showing their places of residence, the
number and class or series of any class of shares of stock held by them
respectively, and the dates when they respectively became the
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owners of record thereof, and such book shall be open for inspection as
prescribed by the laws of the State of Maryland.
Section 7. The Treasurer shall have the care and custody of
the funds and securities of the Corporation and shall deposit the same in the
name of the Corporation in such bank or banks or other depositories and subject
to withdrawal in such manner as these By-Laws or the Board of Directors may
determine; he shall, if required by the Board of Directors, give such bond for
the faithful discharge of his duties in such form as the Board of Directors may
require.
ARTICLE IV
CAPITAL STOCK
Section 1. Certificates of Shares. Each stockholder of the
Corporation shall be entitled upon request to a certificate or certificates for
the full number of shares of each class of stock of the Corporation owned by him
in such form as the Board of Directors may from time to time prescribe.
Section 2. Transfer of Shares. Shares of the Corporation shall
be transferable on the books of the Corporation by the holder thereof in person
or by his duly authorized attorney or legal representative, upon surrender and
cancellation of certificates, if any, for the same number of shares, duly
endorsed or accompanied by proper instruments of assignment and transfer, with
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such proof of the authenticated of the signature as the Corporation or its
agents may reasonably require. In the case of shares not represented by
certificates, the same or similar requirements may be imposed by the Board of
Directors.
Section 3. Stock Ledgers. The stock ledgers of the
Corporation, containing the names and addresses of the stockholders and the
number of shares held by them respectively, shall be kept at the principal
offices of the Corporation, or if the Corporation employs a transfer agent, at
the offices of the transfer agent of the Corporation.
Section 4. Lost, Stolen or Destroyed Certificates. The Board
of Directors may determine the conditions upon which a new certificate of stock
of the Corporation of any class may be issued in place of a certificate which is
alleged to have been lost, stolen or destroyed; and may, in their discretion,
require the owner of such certificate or his legal representative to give bond,
with sufficient surety to the Corporation and the transfer agent, if any, to
indemnify it and such transfer agent against any and all loss or claims which
may arise by reason of the issue of a new certificate in the place of the one so
lost, stolen or destroyed.
ARTICLE V
CORPORATE SEAL
The Board of Directors shall provide a suitable corporate
seal, in such form and bearing such inscriptions as it may determine.
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ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board
of Directors.
ARTICLE VII
INDEMNIFICATION
Section 1. The Corporation shall indemnify its Directors to
the fullest extent that indemnification of directors is permitted by the
Maryland General Corporation Law. The Corporation shall indemnify its officers
to the same extent as its Directors and to such further extent as is consistent
with law. The Corporation shall indemnify its Directors and officers who while
serving as Directors or officers also serve at the request of the Corporation as
a director, officer, partner, trustee, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan to the fullest extent consistent with law. The indemnification and
other rights provided by this Article 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. This Article 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").
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Section 2. Any current or former director or officer of the
Corporation seeking indemnification within the scope of this Article shall be
entitled to advances from the Corporation for payment of the reasonable expenses
incurred by him in connection with the matter as to which he is seeking
indemnification in the manner and to the fullest extent permissible under the
Maryland General Corporation Law. 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. In
addition, at least one of the following additional conditions shall be 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 the Investment Company Act of 1940, nor parties to the proceeding
("disinterested non-party Directors"), or independent legal counsel, in a
written opinion, shall have determined, 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 seeing indemnification will
ultimately be found to be entitled to indemnification.
Section 3. At the request of any person claiming
indemnification under this Article, the Board of Directors shall determine, or
cause to be determined, in a manner consistent with the Maryland General
Corporation Law, whether the standards required by this Article have
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been met. In addition, 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 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. 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, as may be provided by action of the Board
of Directors or by contract, subject to any limitations imposed by the
Investment Company Act of 1940.
Section 5. The Board of Directors may make further provision
consistent with law for indemnification and advance of expenses to Directors,
officers, employees and agents by resolution, agreement or otherwise. The
indemnification provided by this Article shall not be deemed exclusive of any
other right, with respect to indemnification or otherwise, to which those
seeking indemnification may be entitled under any insurance or other agreement
or resolution of stockholders or disinterested Directors or otherwise. The
rights provided to any person by this Article shall be enforceable against the
Corporation by such person who shall be presumed to have relied upon it in
serving or continuing to serve as a director, officer, employee, or agent as
provided above.
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Section 6. References in this Article are to the Maryland
General Corporation Law and to the Investment Company Act of 1940 as from time
to time amended. No amendment of these By-Laws shall effect any right of any
person under this Article based on any event, omission or proceeding prior to
the amendment.
Section 7. The Corporation may 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, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan against any liability asserted against and incurred by such person
in any such capacity or arising out of such person's position; provided, that no
insurance may be purchased which would indemnify any Director or officer of the
Corporation against any liability to the Corporation or to its security holders
to which he would otherwise be subject by reason of disabling conduct.
ARTICLE VIII
AMENDMENT OF BY-LAWS
The By-Laws of the Corporation may be altered, amended, added
to or repealed by the stockholders or by majority vote of the entire Board of
Directors, but any such alteration,
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amendment, addition or repeal of the By-Laws by the Board of Directors may be
altered or repealed by the stockholders.
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