Annual Report by a Registered Investment Company — Form N-CEN
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MATERIAL AMENDMENTS — Material Amendment
ARTICLE I STOCKHOLDERS 1
Section 1.1. Place of Meeting 1
Section 1.2. Annual Meetings 1
Section 1.3. Special Meetings 1
Section 1.4. Notice of Meetings of
Stockholders 2
Section 1.5. Record Dates 2
Section 1.6. Quorum; Adjournment of
Meetings 2
Section 1.7. Voting and Inspectors 3
Section 1.8. Conduct of Stockholders'
Meetings 4
Section 1.9. Concerning Validity of Proxies,
Ballots, etc. 4
Section 1.10. Action Without Meeting 4
Section 1.11. Matters to be Acted on at
Stockholders Meetings. 4
ARTICLE II BOARD OF DIRECTORS 7
Section 2.1. Function of Directors 7
Section 2.2. Number of Directors 7
Section 2.3. Classes of Directors 7
Section 2.4. Vacancies 8
Section 2.5. Increase or Decrease in Number
of Directors 8
Section 2.6. Place of Meeting 8
Section 2.7. Regular Meetings 8
Section 2.8. Special Meetings 8
Section 2.9. Notices 8
Section 2.10. Quorum 9
Section 2.11. Executive Committee 9
Section 2.12. Other Committees 9
Section 2.13. Telephone Meetings 10
Section 2.14. Action Without a Meeting 10
Section 2.15. Compensation of Director 10
Section 2.16. Director Retirement Policy 10
ARTICLE III OFFICERS 10
Section 3.1. Executive Officers 10
Section 3.2. Term of Office 11
Section 3.3. Powers and Duties 11
Section 3.4. Surety Bonds 11
ARTICLE IV CAPITAL STOCK 11
Section 4.1. Certificates for Shares 12
Section 4.2. Transfer of Shares 12
Section 4.3. Stock Ledgers 12
Section 4.4. Transfer Agents and Registrars 12
Section 4.5. Lost, Stolen or Destroyed
Certificates 12
ARTICLE V CORPORATE SEAL; LOCATION
OF OFFICES; BOOKS; NET
ASSET VALUE 13
Section 5.1. Corporate Seal 13
Section 5.2. Location of Offices 13
Section 5.3. Books and Records 13
Section 5.4. Annual Statement of Affairs 13
Section 5.5. Net Asset Value 13
ARTICLE VI FISCAL YEAR AND
ACCOUNTANT 14
Section 6.1. Fiscal Year 14
Section 6.2. Accountant 14
ARTICLE VII INDEMNIFICATION AND
INSURANCE 14
Section 7.1. General 14
Section 7.2. Indemnification of Directors
and Officers 14
Section 7.3. Insurance 15
ARTICLE VIII CUSTODIAN 15
ARTICLE IX ACTIONS TO ELIMINATE
DISCOUNT 16
ARTICLE X AMENDMENT OF BY-LAWS 16
THE CHINA FUND, INC.
Amended and Restated By-Laws
ARTICLE I
Stockholders
Section 1.1. Place of Meeting. All
meetings of the stockholders should be held at the
principal office of the Corporation in the State of
Maryland or at such other place within the United States
as may from time to time be designated by the Board of
Directors and stated in the notice of such meeting.
Section 1.2. Annual Meetings. An
annual meeting of the stockholders for the election of
directors and the transaction of any business within the
power of the Corporation shall be held on the date and at
the time and place set by the Board of Directors.
Section 1.3. Special
Meetings. Special meetings of the stockholders for any
purpose or purposes may be called by the Chairman of
the Board, the President, or a majority of the Board of
Directors. Special meetings of stockholders shall also be
called by the Secretary upon receipt of the request in
writing signed by stockholders holding not less than a
majority of the votes entitled to be cast thereat. Such
request shall state the purpose or purposes of the
proposed meeting and the matters proposed to be acted
on at such proposed meeting. The Secretary shall inform
such stockholders of the reasonably estimated costs of
preparing and mailing such notice of meeting and upon
payment to the Corporation of such costs, the Secretary
shall give notice as required in this Article to all
stockholders entitled to notice of such meeting. No
special meeting of stockholders need be called upon the
request of the holders of common stock entitled to cast
less than a majority of all votes entitled to be cast at such
meeting to consider any matter which is substantially the
same as a matter voted upon at any special meeting of
stockholders held during the preceding twelve months.
Section 1.4. Notice of Meetings 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 meeting), shall be given to each
stockholder entitled to vote thereat and to each other
stockholder entitled to notice of the meeting by leaving
the same with such stockholder or at such stockholder's
residence or usual place of business or by mailing it,
postage prepaid, and addressed to such stockholder at
such stockholder's address as it appears upon the books
of the Corporation. If mailed, notice shall be deemed to
be given when deposited in the mail addressed to the
stockholder as aforesaid.
No notice of the time, place or purpose
of any meeting of stockholders need be given to any
stockholder who attends in person or by proxy or to any
stockholder who, in writing executed and filed with the
records of the meeting, either before or after the holding
thereof, waives such notice.
The Corporation may postpone or cancel
a meeting of stockholders by making a public
announcement of such postponement or cancellation
prior to the meeting. Notice of the date, time and place to
which the meeting is postponed shall be given not less
than ten days prior to such date and otherwise in the
manner set forth in this Section.
Section 1.5. Record Dates. The
Board of Directors may fix, in advance, a record date for
the determination of stockholders entitled to notice of or
to vote at any stockholders meeting or to receive a
dividend or be allotted rights or for the purpose of any
other proper determination with respect to stockholders
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 or otherwise, as the case
may be; provided, however, that such record date shall
not be prior to ninety days preceding the date of any
such meeting of stockholders, dividend payment date,
date for the allotment of rights or other such action
requiring the determination of a record date; and further
provided that such record date shall not be prior to the
close of business on the day the record date is fixed, that
the transfer books shall not be closed for a period longer
than 20 days, and that in the case of a meeting of
stockholders, the record date or the closing of the
transfer books shall not be less than ten days prior to the
date fixed for such meeting.
Section 1.6. Quorum; Adjournment
of Meetings. The presence in person or by proxy of
stockholders entitled to cast one third of the votes
entitled to be cast thereat shall constitute a quorum at all
meetings of the stockholders, except as otherwise
provided in the Articles of Incorporation. The Chairman
of the Meeting or the holders of a majority of the stock
present in person or by proxy shall have power to
adjourn any meeting of stockholders from time to time
(a) without notice other than announcement at the
meeting, to a date not more than 120 days after the
original record date; or (b) provided that a new notice is
given in accordance with Section 1.4 of this Article I and
a new record date is set in accordance with Section 1.5
of this Article I, to a date more than 120 days after the
original record date. At the adjourned meeting, any
business may be transacted which might have been
transacted at the meeting as originally notified.
Section 1.7. Voting and
Inspectors. At all meetings, stockholders of record
entitled to vote thereat shall have one vote for each share
of common stock standing in his name on the books of
the Corporation (and such stockholders of record
holding fractional shares, if any, shall have proportionate
voting rights) on the date for the determination of
stockholders 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.
All elections shall be had and all
questions decided by a majority of the votes cast at a
duly constituted meeting, except as otherwise provided
by statute or by the Articles of Incorporation or by these
By-Laws.
At any election of Directors, 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.
Section 1.8. Conduct of
Stockholders' Meetings. The meetings of the
stockholders shall be presided over by the Chairman of
the Board, or if be is not present, by the President, or if
he is not present, by a vice-president, or if none of them
is present, by a Chairman to be elected at the meeting.
The Secretary of the Corporation, if present, shall act as
a Secretary of such meetings, or if he is not present, an
Assistant Secretary shall so act; if neither the Secretary
nor the Assistant Secretary is present, then the meeting
shall elect its Secretary. The chairman of an annual or
special meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly
brought before the meeting in accordance with the
provisions of Section 1.11 of this Article I, and if he
should so determine, he shall so declare to the meeting
and any such business not properly brought before the
meeting shall not be transacted.
Section 1.9. 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 by the Chairman of the meeting, in which
event such inspectors of election shall decide all such
questions. Unless a proxy provides otherwise, it is not
valid for more than eleven months after its date.
Subject to the foregoing sentence, if a new
record date (the "New Record Date") is set for a meeting
of stockholders that is adjourned or postponed to a date
that is more than 120 days after the original record date
for the meeting, a proxy granted by a stockholder as of
the original record date for the meeting remains valid
with respect to the shares held by such stockholder as of
the New Record Date, unless the proxy is revoked by the
stockholder prior to being exercised at the adjourned or
postponed meeting.
Section 1.10. Action Without
Meeting. Any action to be taken by stockholders may be
taken without a meeting if (1) all stockholders entitled to
vote on the matter consent to the action in writing, (2) all
stockholders entitled to notice of the meeting but not
entitled to vote at it sign a written waiver of any right to
dissent and (3) said consents and waivers are filed with
the records of the meetings of stockholders. Such
consent shall be treated for all purposes as a vote at the
meeting.
Section 1.11. Matters to be Acted on
at Stockholders Meetings.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting
of Stockholders only if made (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the
direction of the Board of Directors or (iii) by any
stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this
Section 1.11 (a), who is entitled to vote at the meeting
and who complied with the notice procedures set forth in
this Section 1.11 (a). (2) For nominations or other
business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of
paragraph (a) (1) of this Section 1.11, 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 (i) as to each
person whom the stockholder proposes to nominate for
election or reelection 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 Securities Exchange Act of 1934, as
amended (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); (ii) 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 owners, if any, on
whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owners,
if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such stockholder, as
they appear on the Corporation's books, and of such
beneficial owners, if any, and (y) the class and number
of shares of stock of the Corporation which are owned
beneficially and of record by such stockholder and such
beneficial owners, if any. (3) Notwithstanding anything
in the second sentence of paragraph (a) (2) of this
Section 1.11 to the contrary, in the event that the number
of directors to be elected to the Board of Directors is
increased and there is no public announcement naming
all of the nominees for director or specifying the size of
the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary
of the preceding year's annual meeting, a stockholder's
notice required by paragraph (a) (2) of this Section 1.11
shall also be considered timely, but only with respect to
nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the
principal executive offices of the Corporation not later
than the close of business on the tenth day following the
day on which such public announcement is first made by
the Corporation.
(b) Special Meetings of Stockholders.
(1) Only such business shall be conducted at a special
meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice
of meeting. (2) Nominations of persons for election to
the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected (i)
pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the Board of Directors or (iii)
provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any
stockholder of the Corporation who (x) has given timely
notice thereof meeting the requirements of Section 1.11
(b) (3), (y) is a stockholder of record at the time of
giving of such notice, and (z) is entitled to vote at the
meeting. (3) To be timely, a stockholder's notice
referred to in Section 1.11 (b) (2) must have been
delivered to the secretary of the Corporation at the
principal executive offices of the Corporation not earlier
that the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th
day prior to such special meeting or the tenth day
following the day on which public announcement is
made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be
elected at such meeting. Such stockholder's notice shall
set forth (i) as to each person whom the stockholder
proposes to nominate for election ore reelection 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); and (ii) as to the
stockholder giving the notice and the beneficial owners,
if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such stockholder, as
they appear o the Corporation's books and of such
beneficial owners, if any and (y) the class and number of
shares of stock of the Corporation which are owned
beneficially and of record by such stockholder and such
beneficial owners, if any.
ARTICLE II
Board of Directors
Section 2.1. Function of
Directors. The business and affairs of the Corporation
shall be conducted and managed under the direction of
its Board of Directors. All powers of the Corporation
shall be exercised by or under authority of the Board of
Directors except as conferred on or reserved to the
stockholders by statute.
Section 2.2. Number of
Directors. The Board of Directors shall consist of not
more than fourteen Directors nor less than such number
of Directors as may be permitted under Maryland law, as
may be determined from time to time by vote of a
majority of the Directors then in office. Directors need
not be stockholders.
Section 2.3. Classes of
Directors. The Directors shall be divided into three
classes, designated Class I, Class II and Class III. All
classes shall be as nearly equal in number as possible.
The Directors as initially classified shall hold office for
terms as follows: the Class I Directors shall hold office
until the date of the annual meeting of stockholders in
1993 or until their successors shall be elected and
qualified; the Class II Directors shall hold office until
the date of the annual meeting of stockholders in 1994 or
until their successors shall be elected and qualified; and
the Class III Directors shall hold office until the date of
the annual meeting of stockholders in 1995 or until their
successors shall be elected and qualified. Upon
expiration of the term of office of each class as set forth
above, the Directors in each such class shall be elected
for a term of three years to succeed the Directors whose
terms of office expires. Each Director shall hold office
until the expiration of his term and until his successor
shall have been elected and qualified.
Section 2.4. Vacancies; Tender or
Resignation. In case of any vacancy in the Board of
Directors through death, resignation or other cause, other
than an increase in the number of Directors, subject to
the provisions of law, a majority of the remaining
Directors, although a majority is less than a quorum, by
an affirmative vote, may elect a successor to hold office
for the remainder of the full term of the class of
Directors in which the vacancy occurred or until his
successor is chosen and qualified. Any Director who is
nominated for re-election at a meeting of stockholders
and is not re-elected at that meeting shall be deemed to
have tendered to the Board of Directors his or her
resignation as a Director, with such resignation to take
effect 30 days after the date of the meeting unless the
Board of Directors unanimously decides to reject that
Director's tender of resignation, in which case the
Director shall continue in office until his death,
resignation or removal or until his successor shall have
been elected and shall have been qualified.
Section 2.5. 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 and may elect Directors to fill the
vacancies created by any such increase in the number of
Directors for the remainder of the full term of the class
of Directors in which the vacancy occurred or until their
successors are duly chosen and qualified. The Board of
Directors, by the vote of a majority of the entire Board,
may likewise decrease the number of Directors to a
number not less than that permitted by law.
Section 2.6. Place of Meeting. The
Directors may hold their meetings within or outside the
State of Maryland, at any office or offices of the
Corporation or at any other place as they may from time
to time determine.
Section 2.7. Regular
Meetings. Regular meetings of the Board of Directors
shall be held at such time and on such notice as the
Directors may from time to time determine.
The annual meeting of the Board of
Directors shall be held as soon as practicable after the
annual meeting of the stockholders for the election of
Directors.
Section 2.8. Special
Meetings. Special meetings of the Board of Directors
may be held from time to time upon call of the Chairman
of the Board, the President, the Secretary or two or more
of the Directors, by oral or telegraphic or written notice
duly served on or sent or mailed to each Director not less
than one day before such meeting.
Section 2.9. Notices. Unless
required by statute or otherwise determined by
resolution of the Board of Directors in accordance with
these By-laws, notices to Directors need not be in
writing and need not state the business to be transacted
at or the purpose of any meeting, and no notice need be
given to any Director who is present in person or to any
Director who, in writing executed and filed with the
records of the meeting either before or after the holding
thereof, waives such notice. Waivers of notice need not
state the purpose or purposes of such meeting.
Section 2.10. Quorum. One-third of
the Directors then in office shall constitute a quorum for
the transaction of business, provided that if there is more
than one Director, a quorum shall in no case be less than
two Directors. 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 statute or
by the Articles of Incorporation or by these By-Laws.
Section 2.11. Executive
Committee. The Board of Directors may appoint from
the Directors an Executive Committee to consist of such
number of Directors (not less than two) as the Board
may from time to time determine. The Chairman of the
committee shall be elected by the Board of Directors.
The Board of Directors 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, to the extent permitted by law, the Executive
Committee shall have and may exercise any or all of the
powers of the Board of Directors in the management and
conduct of the business and affairs of the Corporation.
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 a majority shall be necessary
to constitute a quorum. During the absence of a member
of the Executive Committee, the remaining members
may appoint a member of the Board of Directors to act
in his place.
Section 2.12. Other Committees. The
Board of Directors may appoint from the Directors other
committees which shall in each case consist of such
number of Directors (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 the members of any such 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 2.13. Telephone
Meetings. Members of the Board of Directors or a
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
the meeting can hear each other at the same time.
Participation in a meeting by these means, subject to the
provisions of the Investment Company Act, constitutes
presence in person at the meeting.
Section 2.14. Action Without a
Meeting. 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 of such committee, as the case may be, and
such written consent is filed with the minutes of the
proceedings of the Board or such committee.
Section 2.15. Compensation of
Director. No Director shall receive any stated salary or
fees from the Corporation for his services as such if such
Director is, otherwise than by reason of being such
Director, an interested person (as such term is defined by
the Investment Company Act of 1940, as amended) of
the Corporation or of its investment manager or principal
underwriter. Except as provided in the preceding
sentence, Directors shall be entitled to receive such
compensation from the Corporation for their services as
may from time to time be voted by the Board of
Directors.
Section 2.16. Director Retirement
Policy. No Director may be nominated by the Board of
Directors for re-election as Director if, at the time of any
such proposed nomination, he or she has reached the age
of seventy (70). Notwithstanding the previous sentence,
if a Director who at the time of a proposed nomination
has reached the age of seventy (70) and wishes to
continue serving as a Director, he or she may stand for
re-election, subject to the unanimous approval of the
other Directors.
ARTICLE III
Officers
Section 3.1. Executive
Officers. The executive officers of the Corporation shall
be chosen by the Board of Directors. These shall
include a President, a Secretary and a Treasurer. The
Board of Directors or the Executive Committee may also
in its discretion appoint one or more Vice-Presidents,
Assistant Secretaries, Assistant Treasurers and other
officers, agents and employees, who shall have such
authority and perform such duties as the Board or the
Executive Committee may determine. The Chief
Compliance Officer ("CCO") shall perform the functions
as described in Rule 38a-1 under the Investment
Company Act of 1940, as amended. The CCO shall
have primary responsibility for administering the
Corporation's compliance policies and procedures
adopted pursuant to Rule 38a-1 (the "Compliance
Program") and reviewing the Compliance Program, in
the manner specified in Rule 38a-1, at least annually, or
as such rule may be amended from time to time. The
CCO shall report directly to the Board of Directors
regarding the Compliance Program. 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 3.2. Term of Office. The
term of office of all officers shall be one year and until
their respective successors are chosen and qualified.
Any officer may be removed from office at any time
with or without cause by the vote of a majority of the
whole Board of Directors. Any officer may resign his
office at any time by delivering a written resignation to
the Corporation and, unless otherwise specified therein,
such resignation shall take effect upon delivery.
Section 3.3. Powers and Duties. The
officers of the Corporation shall have such powers and
duties as shall be stated in a resolution of the Board of
Directors, or the Executive Committee and, to the extent
not so stated, as generally pertain to their respective
offices, subject to the control of the Board of Directors
and the Executive Committee.
Section 3.4. Surety Bonds. The
Board of Directors may require any officer or agent of
the Corporation to execute a bond (including, without
limitation, any bond required by the Investment
Company Act of 1940, as amended, and the rules and
regulations of the Securities and Exchange Commission)
to the Corporation in such sum and with such surety or
sureties as the Board of Directors may determine,
conditioned upon the faithful performance of his duties
to the Corporation, including responsibility for
negligence and for the accounting of any of the
Corporation's property, fund or securities that may come
into his hands.
ARTICLE IV
Capital Stock
Section 4.1. Certificates for
Shares. Each stockholder of the Corporation shall be
entitled to a certificate or certificates for the full shares
of stock of the Corporation owned by him in such form
as the Board may from time to time prescribe.
Section 4.2. Certificates of Stock
Form and Issuance (a) Issuance. The shares of the Fund
shall be represented by certificates unless the Board of
Directors shall by resolution provide that some or all of
the shares of the Fund shall be uncertificated shares.
Any such resolution shall not apply to shares represented
by certificate until the certificate is surrendered to the
Fund. Notwithstanding the adoption of any resolution
providing for uncertificated shares, every holder of
shares of the Fund represented by certificates and upon
request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of
the Fund by, the Chairman of the Board, or the President
or any Vice President and by the Secretary or any
Assistant Secretary or the Treasurer or an Assistant
Treasurer, representing the number of shares registered
in certificate form.
Section 4.3. 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 such proof of the
authenticity 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 4.4. 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 4.5. Transfer Agents and
Registrars. The Board of Directors may from time to
time appoint or remove transfer agents and/or registrars
of transfers of shares of stock of the Corporation, and it
may appoint the same person as both transfer agent and
registrar. Upon any such appointment being made all
certificates representing shares of capital stock thereafter
issued shall be countersigned by one of such transfer
agents or by one of such registrars of transfers or by both
and shall not be valid unless so countersigned. If the
same person shall be both transfer agent and registrar,
only one countersignature by such person shall be
required.
Section 4.6. Lost, Stolen or
Destroyed Certificates. The Board of Directors or the
Executive Committee or any officer or agent authorized
by the Board of Directors or Executive Committee 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 its discretion, require
the owner of such certificate or such owner's legal
representative to give bond, with sufficient surety, to the
Corporation and each Transfer Agent, if any, to
indemnify it and each 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; Location of
Offices; Books; Net Asset Value
Section 5.1. Corporate Seal. The
Board of Directors may provide for a suitable corporate
seal, in such form and bearing such inscriptions as it
may determine. Any officer or director shall have the
authority to affix the corporate seal. If the Corporation
is required to place its corporate seal to a document, it
shall be sufficient to place the word "(seal)" adjacent to
the signature of the authorized officer of the Corporation
signing the document.
Section 5.2. Location of
Offices. The Corporation shall have a principal office in
the State of Maryland. The Corporation may, in
addition, establish and maintain such other offices as the
Board of Directors or any officer may, from time to
time, determine.
Section 5.3. Books and
Records. The books and records of the Corporation shall
be kept at the places, within or without the State of
Maryland, as the directors or any officer may determine;
provided, however, that the original or a certified copy
of the by-laws, including any amendments to them, shall
be kept at the Corporation's principal executive office.
Section 5.4. Annual Statement of
Affairs. The President or any other executive officer of
the Corporation shall prepare annually a full and correct
statement of the affairs of the corporation, to include a
balance sheet and a financial statement of operations for
the preceding fiscal year. The statement of affairs
should be submitted at the annual meeting of
stockholders and, within 20 days of the meeting, placed
on file at the Corporation's principal office.
Section 5.5. Net Asset Value. The
value of the Corporation's net assets shall be determined
at such times and by such method as shall be established
from time to time by the Board of Directors.
ARTICLE VI
Fiscal Year and Accountant
Section 6.1. Fiscal Year. The fiscal
year of the Corporation, unless otherwise fixed by
resolution of the Board of Directors, shall begin on the
first day of November and shall end on the last day of
October in each year.
Section 6.2. Accountant. The
Corporation shall employ an independent public
accountant or a firm of independent public accountants
as its Accountants to examine the accounts of the
Corporation and to sign and certify financial statements
filed by the Corporation. The employment of the
Accountant shall be conditioned upon the right of the
Corporation to terminate the employment forthwith
without any penalty by vote of a majority of the
outstanding voting securities at any stockholders'
meeting called for that purpose.
ARTICLE VII
Indemnification and Insurance
Section 7.1. General. The
Corporation shall indemnify directors, officers,
employees and agents of the Corporation against
judgments, fines, settlements and expenses to the fullest
extent authorized and in the manner permitted, by
applicable federal and state law.
Section 7.2. Indemnification of
Directors and Officers. The Corporation shall indemnify
to the fullest extent permitted by law (including the
Investment Company Act of 1940) as currently in effect
or as the same may hereafter be amended, any person
made or threatened to be made a party to any action, suit
or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or
such person's testator or intestate is or was a director or
officer of the Corporation or serves or served at the
request of the Corporation any other enterprise as a
director or officer. To the fullest extent permitted by law
(including the Investment Company Act of 1940) as
currently in effect or as the same may hereafter be
amended, expenses incurred by any such person in
defending any such action, suit or proceeding shall be
paid or reimbursed by the Corporation promptly upon
receipt by it of an undertaking of such person to repay
such expenses if it shall ultimately be determined that
such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this
Article VII 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 or
officer as provided above. No amendment of this Article
VII shall impair the rights of any person arising at any
time with respect to events occurring prior to such
amendment. In particular, and without limiting the
generality of the foregoing, neither the determination
that a Director is an "audit committee financial expert"
nor the knowledge, experience or other qualifications
underlying such a determination shall result in that
Director being held to a standard of care that is higher
than the standard that would be applicable in the absence
of such a determination or such knowledge, experience
or qualification, nor shall such a determination or such
knowledge, experience or other qualification impose any
duties, obligations or liabilities that are greater than
would obtain in the absence of such a determination or
such knowledge, experience or qualification. Any
determination of whether a Director has complied with
any applicable standard of care, including without
limitation any standard of care set out in any constituent
document of the Corporation, and any determination of
whether a Director shall be entitled to indemnification
pursuant to any provision of the Articles of
Incorporation or these By-Laws, shall be made in light
of and based upon the provisions of this paragraph and
any person serving as a Director, whether at the date of
adoption of this paragraph as a By-Law or thereafter,
shall be presumed conclusively to have done so in
reliance on this paragraph. For purposes of this Article
VII, the term "Corporation" shall include any
predecessor of the Corporation and any constituent
corporation (including any constituent of a constituent)
absorbed by the Corporation in a consolidation or
merger; the term "other enterprises" shall include any
corporation, partnership, joint venture, trust or employee
benefit plan; service "at the request of the Corporation"
shall include service as a director or officer of the
Corporation which imposes duties on, or involves
services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries;
any excise taxes assessed on a person with respect to an
employee benefit plan shall be deemed to be
indemnifiable expenses; and action by a person with
respect to any employee benefit plan which such person
reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be
deemed to be action not opposed to the best interests of
the Corporation.
Section 7.3. Insurance. Subject to
the provisions of the Investment Company Act of 1940,
the Corporation, directly, through third parties or
through affiliates of the Corporation, may purchase, or
provide through a trust fund, letter of credit or surety
bond 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, employee, partner,
trustee or agent of another foreign or domestic
corporation, partnership joint venture, trust or other
enterprise against any liability asserted against and
incurred by such person in any such capacity or arising
out of such person's position, whether or not the
Corporation would have the power to indemnify such
person against such liability.
ARTICLE VIII
Custodian
The Corporation shall have as custodian
or custodians one or more trust companies or banks of
good standing, foreign or domestic, as may be
designated by the Board of Directors, subject to the
provisions of the Investment Company Act of 1940, as
amended, and other applicable laws and regulations; and
the funds and securities held by the Corporation shall be
kept in the custody of one or more such custodians,
provided such custodian or custodians can be found
ready and willing to act, and further provided that the
Corporation and/or the Custodians may employ such
subcustodians as the Board of Directors may approve
and as shall be permitted by law.
ARTICLE IX
Actions to Eliminate Discount
If, at any time after two years following
the initial public offering of shares of the Corporation,
the average discount from net asset value at which shares
of the Corporation's Common Stock trade is substantial,
as determined by the Board of Directors, the Board of
Directors shall consider, at its next regularly scheduled
quarterly meeting, taking various actions designed to
eliminate the discount, including, but not limited to,
periodic repurchases of shares, tender offer to purchase
shares from all shareholders at a price equal to net asset
value or recommending to the shareholders amendments
to the Corporation's Articles of Incorporation to convert
the Corporation to an open-end investment company.
ARTICLE X
Amendment of By-Laws
The By-Laws of the Corporation may be
altered, amended, added to or repealed only by majority
vote of the entire Board of Directors.
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