(As filed with the Securities and Exchange Commission on December 2, 2005)
INVESTMENT COMPANY ACT FILE NO. 811-4058
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 /___/
Amendment No. 19 / X /
THE KOREA FUND, INC.
(Exact Name of Registrant as Specified in its Charter)
345 Park Avenue, New York, New York 10154
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: (800) 349-4281
Carole Coleman, Esq.
The Korea Fund, Inc.
c/o Deutsche Asset Management
345 Park Avenue
NYC20-1651
New York, NY 10154
(Name and Address of Agent for Service)
If any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with a dividend reinvestment plan, check
the following box. /___/
It is proposed that this filing will become effective:
/___/ when declared effective pursuant to Section 8(c).
The Following boxes should only be included and completed if the registrant is a
registered closed-end management investment company or business development
company which makes periodic repurchase offers under Rule 23c-3 under the
Investment Company Act and is making this filing in accordance with Rule 486
under the Securities Act:
/___/ immediately upon filing pursuant to paragraph (b).
/___/ on (date) pursuant to paragraph (b).
/___/ 60 days after filing pursuant to paragraph (a).
/___/ on (date) pursuant to paragraph (a).
If appropriate, check the following box:
/___/ This [post-effective] amendment designates a new effective date for a
previously filed [post-effective amendment] [registration statement]
/___/ This form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the same offering is ___________.
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PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits.
Amended and restated Bylaws dated October 5, 2004 and Amendments to the
Bylaws of the Registrant, is filed herewith as Exhibits (2)(b)(iv), (2)(b)(v)
and (2)(b)(vi).
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of New York,
and the state of New York, on the 23rd day of November, 2005.
The Korea Fund, Inc.
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(Registrant)
By: /s/Carole Coleman
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Carole Coleman
Secretary
INDEX TO EXHIBITS
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(2)(b)(iv) -- Amended and Restated Bylaws of the Registrant
dated May 10, 2004(1)
----------------------- ------- ------------------------------------------------
(2)(b)(v) -- Amendment to Bylaws of the Registrant
----------------------- ------- ------------------------------------------------
(2)(b)(vi) -- Amendment to Bylaws of the Registrant
----------------------- ------- ------------------------------------------------
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(1) Incorporated by reference to the amended and restated bylaws dated May 10,
2004 contained as Exhibit 77Q2 of Form N-SAR-B filed on August 30, 2004 with the
Securities and Exchange Commission (Accession Number: 0000088053-04-000686;
filed on August 30, 2004).
EXHIBIT (2)(b)(iv)
THE KOREA FUND, INC.
A Maryland Corporation
RESTATED
BY-LAWS
restated as of May 10, 2004
TABLE OF CONTENTS
Page
----
ARTICLE I--NAME OF CORPORATION, LOCATION OF OFFICES AND SEAL..................1
Section 1.1. Principal Offices.....................................1
Section 1.2. Seal..................................................1
ARTICLE II--STOCKHOLDERS......................................................2
Section 2.1. Annual Meetings.......................................2
Section 2.2. Special Meetings......................................2
Section 2.3. Notice of Meetings....................................2
Section 2.4. Quorum................................................3
Section 2.5. Voting................................................3
Section 2.6. Stockholders Entitled to Vote.........................4
Section 2.7. Proxies...............................................4
Section 2.8. Voting and Inspectors.................................4
Section 2.9. Action Without Meeting................................5
Section 2.10. New Business..........................................5
Section 2.11. Director Nominations..................................6
ARTICLE III--BOARD OF DIRECTORS...............................................8
Section 3.1. Powers................................................8
Section 3.2. Power to Issue and Sell Stock.........................9
Section 3.3. Power to Declare Dividends............................8
Section 3.4. Number and Term......................................10
Section 3.5. Election.............................................10
Section 3.6. Vacancies and Newly Created Directorships............10
Section 3.7. Removal..............................................10
Section 3.8. Annual and Regular Meetings..........................11
Section 3.9. Special Meetings.....................................12
Section 3.10. Waiver of Notice.....................................12
Section 3.11. Quorum and Voting....................................12
Section 3.12. Action Without a Meeting.............................13
Section 3.13. Compensation of Directors............................13
ARTICLE IIIA--EMERITUS FOUNDING DIRECTORS....................................13
Section 3A.1. Number; Qualification; Term..........................13
Section 3A.2. Duties; Remuneration.................................14
TABLE OF CONTENTS (continued)
Page
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ARTICLE IV--COMMITTEES......................................................14
Section 4.1. Organization........................................14
Section 4.2. Executive Committee.................................15
Section 4.3. Other Committees....................................15
Section 4.4. Proceedings and Quorum..............................15
ARTICLE V--OFFICERS OF THE CORPORATION; OFFICERS OF THE BOARD...............16
Section 5.1. General.............................................16
Section 5.2. Election, Tenure and Qualifications.................16
Section 5.3. Removal and Resignation.............................16
Section 5.4. Chairman of the Board...............................17
Section 5.5. Vice Chairman of the Board..........................17
Section 5.6. President...........................................17
Section 5.7. Vice President......................................18
Section 5.8. Treasurer and Assistant Treasurers..................18
Section 5.9. Secretary and Assistant Secretaries.................18
Section 5.10. Subordinate Officers................................19
Section 5.11. Remuneration........................................19
Section 5.12. Surety Bonds........................................19
ARTICLE VI--NET ASSET VALUE.................................................20
Section 6.1. Valuation of Assets.................................20
ARTICLE VII--CAPITAL STOCK..................................................20
Section 7.1. Certificates of Stock...............................20
Section 7.2. Transfer of Shares..................................20
Section 7.3. Stock Ledgers.......................................20
Section 7.4. Transfer Agents and Registrars......................21
Section 7.5. Fixing of Record Date...............................21
Section 7.6. Lost, Stolen or Destroyed Certificates..............21
ARTICLE VIII--FISCAL YEAR AND ACCOUNTANT....................................22
Section 8.1. Fiscal Year.........................................22
Section 8.2. Accountant..........................................22
ARTICLE IX--CUSTODY OF SECURITIES...........................................23
Section 9.1. Employment of a Custodian...........................23
Section 9.2. Termination of Custodian Agreement..................23
TABLE OF CONTENTS (continued)
Page
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ARTICLE X--INDEMNIFICATION AND INSURANCE....................................23
Section 10.1. Indemnification of Officers, Directors,
Employees and Agents................................23
Section 10.2. Insurance of Officers, Directors,
Employees and Agents................................25
ARTICLE XI--AMENDMENTS......................................................25
Section 11.1. General.............................................25
BY-LAWS
OF
THE KOREA FUND, INC.
(A Maryland Corporation)
ARTICLE I
NAME OF CORPORATION, LOCATION OF
OFFICES AND SEAL
Section 1.1. Principal Offices. The principal office of the Corporation
in the State of Maryland shall be located in Baltimore, Maryland. The
Corporation may, in addition, establish and maintain such other offices and
places of business as the Board of Directors may, from time to time, determine.
[MGCL ss. 2-108*]
Section 1.2. Seal. The corporate seal of the Corporation shall be
circular in form and shall bear the name of the Corporation, the year of its
incorporation, and the word "Maryland." The form of the seal shall be subject to
alteration by the Board of Directors and the seal may be used by causing it or a
facsimile to be impressed or affixed or printed or otherwise reproduced. Any
officer or Director of the Corporation shall have authority to affix the
corporate seal of the Corporation to any document requiring the same. 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. [MGCL ss. 1-304]
------------------
* Statutory references are for convenience only. MGCL = Maryland General
Corporation Law; ICA = Investment Company Act.
ARTICLE II
STOCKHOLDERS
Section 2.1. 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 in October. The meeting will be held at
such place as the Board of Directors shall select. [MGCL ss. 2-501]
Section 2.2. Special Meetings. Special meetings of stockholders may be
called at any time by the President, by a majority of the Board of Directors or
by the Chairman of the Board, if any, and shall be held at such time and place
as may be stated in the notice of the meeting.
Special meetings of the stockholders shall also be called by the
Secretary upon the written request of the holders of shares entitled to not less
than 50% of all the votes entitled to be cast at such meeting, provided that (1)
such request shall state the purposes of such meeting and the matters proposed
to be acted upon, and (2) the stockholders requesting such meeting shall have
paid to the Corporation the reasonably estimated cost of preparing and mailing
the notice thereof, which the Secretary shall determine and specify to such
stockholders. No special meeting shall be called upon the request of
stockholders to consider any matter which is substantially the same as a matter
voted upon at any special meeting of the stockholders held during the preceding
12 months, unless requested by the holders of a majority of all shares entitled
to be voted at such meeting. [MGCL ss. 2-502]
Section 2.3. Notice of Meetings. The Secretary shall cause notice of
the place, date and hour, and, in the case of a special meeting or if otherwise
required by law, the purpose or purposes for which the meeting is called, to be
mailed, not less than 10 nor more than 90 days before the date of the meeting,
to each stockholder entitled to vote at such meeting at his address
as it appears on the records of the Corporation at the time of such mailing.
Notice of any stockholders' meeting need not be given to any stockholder who
shall sign a written waiver of such notice whether before or after the time of
such meeting, which waiver shall be filed with the record of such meeting, or to
any stockholder who is present at such meeting in person or by proxy. Notice of
adjournment of a stockholders' meeting to another time or place need not be
given if such time and place are announced at the meeting. [MGCL ss. 2-504]
Section 2.4. Quorum. The presence at any stockholders' meeting, in
person or by proxy, of stockholders entitled to cast a majority of the votes
entitled to be cast thereat shall be necessary and sufficient to constitute a
quorum for the transaction of business. In the absence of a quorum, the holders
of a majority of shares entitled to vote at the meeting and present in person or
by proxy, or, if no stockholder entitled to vote is present in person or by
proxy, any officer present entitled to preside or act as Secretary of such
meeting, may adjourn the meeting sine die or from time to time without further
notice to a date not more than 120 days after the original record date. Any
business that might have been transacted at the meeting originally called may be
transacted at any such adjourned meeting at which a quorum is present. [MGCL
ss.ss. 2-506, 2-511]
Section 2.5. Voting. At each stockholders' meeting, each stockholder
entitled to vote shall be entitled to one vote for each share of stock of the
Corporation validly issued and outstanding and standing in his name on the books
of the Corporation on the record date fixed in accordance with Section 5 of
Article VII hereof. Except as otherwise specifically provided in the Articles of
Incorporation or these By-Laws or as required by law, as amended from time to
time, all matters shall be decided by a vote of the majority of the votes
validly cast. The vote upon any question
shall be by ballot whenever requested by any person entitled to vote, but,
unless such a request is made, voting may be conducted in any way approved by
the meeting. [MGCL ss. 2-507]
Section 2.6. Stockholders Entitled to Vote. If the Board of Directors
sets a record date for the determination of stockholders entitled to notice of
or to vote at any stockholders' meeting in accordance with Section 7.5 of
Article VII hereof, each stockholder of the Corporation shall be entitled to
vote, in person or by proxy, each share of stock standing in his name on the
books of the Corporation on such record date. If no record date has been fixed,
the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be determined in accordance with the
Maryland General Corporation Law. [MGCL ss. 2-511]
Section 2.7. Proxies. Any stockholder entitled to vote at any meeting
of stockholders may vote either in person or by written proxy signed by the
stockholder or his authorized agent. A stockholder entitled to vote at any
meeting of stockholders may also authorize another person or persons to act as a
proxy for him via telephone, the internet or any other means authorized by
Maryland law. Unless a proxy provides otherwise, it is not valid more than
eleven months after its date. A copy, facsimile transmission or other
reproduction of a writing or transmission may be substituted for the original
writing or transmission for any purpose for which the original writing or
transmission could be used. Every proxy shall be dated, but need not be sealed,
witnessed or acknowledged. Every proxy shall be revocable at the pleasure of the
person authorizing it or of his personal representatives or assigns. All proxies
shall be delivered to the Secretary of the Corporation, or to the person acting
as Secretary of the meeting being voted. A proxy with respect to stock held in
the name of two or more persons shall be valid if executed by one of them
unless, at or prior to exercise of such proxy, the Corporation receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on
behalf of a stockholder shall be valid unless challenged at or prior to its
exercise. [MGCL ss. 2-507]
Section 2.8. Voting and Inspectors. At any election of Directors, the
Chairman of the meeting may 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 election make a certificate of the result of the vote
taken. No candidate for the office of Director shall be appointed such
Inspector.
Section 2.9. 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. [MGCL ss. 2-505]
Section 2.10. New Business. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the annual meeting (a) by or at the
recommendation of a majority of the directors then in office or (b) by any
stockholder of record at the time of giving of notice provided for in this
Section who complies with the notice procedures set forth in this Section. For a
proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to, or
mailed by certified mail, return receipt requested to and received at, the
principal executive offices of the Corporation not less than ninety (90) days
nor more than one hundred and twenty (120) days prior to the date of the
meeting, as established pursuant to
Section 2.1, regardless of any postponement, deferral, or adjournment of that
meeting to a later date (provided however, that if less than one hundred (100)
days' notice or prior public disclosure of the date of the scheduled meeting is
given or made, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the tenth (10th) day following
the earlier of the day on which such notice of the date of the scheduled meeting
was given or the day on which such public disclosure was made). Such
stockholder's notice shall set forth as to each matter the stockholder proposes
to bring before the annual meeting (a) a brief description of the proposal
desired to be brought before the annual meeting; (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business; (c) the class and number of shares of the Corporation's stock which
are beneficially owned (as defined in Rule l3d-3 under the Securities Exchange
Act of 1934, as amended (the "1934 Act")) by the stockholder; and (d) any
material interest of the stockholder in such proposal.
The presiding officer of the annual meeting shall determine and declare
at the annual meeting whether the stockholder proposal was made in accordance
with the terms of this Section. If the presiding officer determines that a
stockholder proposal was made in accordance with the terms of this Section, he
shall so declare at the annual meeting and ballots shall be provided for use at
the meeting with respect to any such proposal. If the presiding officer
determines that a stockholder proposal was not made in accordance with the terms
of this Section, he shall so declare at the annual meeting and any such proposal
shall not be acted upon at the annual meeting.
Notwithstanding the foregoing provisions of this Section, a stockholder
shall also comply with all applicable requirements of the 1934 Act and the rules
and regulations thereunder with respect to the matters set forth in this
Section. This Section shall not prevent the consideration
and approval or disapproval at the annual meeting of reports of officers,
directors and committees of the Board of Directors, but, in connection with such
reports, no new business shall be acted upon at such annual meeting unless
stated, filed and received as herein provided.
Section 2.11. Director Nominations. Nominations of candidates for
elections as directors at any meeting of stockholders may be made (a) by or at
the recommendation of a majority of the directors then in office or (b) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section, who shall be entitled to vote for
the election of directors at the meeting, and who complies with the notice
procedures set forth in this Section. Only persons nominated in accordance with
the procedures set forth in this Section shall be eligible for election as
directors by the stockholders.
Nominations, other than those made by or at the recommendation of the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section. To be timely, a
stockholder's notice shall be delivered to, or mailed by certified mail, return
receipt requested to and received at, the principal executive offices of the
Corporation, not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the date of the meeting, as established pursuant to Section
2.1 or Section 2.2 of Article II hereof (depending on whether the meeting is an
annual meeting or special meeting), regardless of any postponement, deferral, or
adjournment of that meeting to a later date (provided, however, that if less
than one hundred (100) days' notice or prior public disclosure of the date of
the scheduled meeting is given or made, notice by the stockholder to be timely
must be so delivered or received not later than the close of business on the
tenth (10th) day following the earlier of the day on which such notice of the
date of the scheduled meeting was given or the day on which such public
disclosure was made). Such stockholder's notice shall set forth (a) as to each
person
whom the stockholder proposes to nominate for election or re-election as a
director (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's stock which are beneficially
owned (as defined in Rule l3d-3 under the 1934 Act) by such person on the date
of such stockholder's notice, (iv) such person's written consent to being
nominated and, if elected, to serving as a director, and (v) any other
information relating to such person that is required to be disclosed in
solicitations of proxies with respect to nominees for election as directors, or
is otherwise required, in such case pursuant to Regulation 14A under the 1934
Act and (b) as to the stockholder giving the notice (i) the name and address, as
they appear on the Corporation's books, of such stockholder and (ii) the class
and number of shares of the Corporation's stock which are beneficially owned (as
defined in Rule l3d-3 under the 1934 Act) by such stockholder. At the request of
the Board of Directors, any person nominated by or at the recommendation of the
Board of Directors for election as a director shall promptly furnish to the
Secretary of the Corporation the information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
The presiding officer of the meeting shall determine and declare at the
meeting whether the nomination was made in accordance with the terms of this
Section. If the presiding officer determines that the nomination was made in
accordance with the terms of this Section, he shall so declare at the meeting.
If the presiding officer determines that a nomination was not made in accordance
with the terms of this Section, he shall so declare at the meeting and the
defective nomination shall be disregarded.
Ballots bearing the names of all the persons who have been nominated
for election as directors at a meeting in accordance with the procedures set
forth in this Section shall be provided for use at the meeting.
Notwithstanding the foregoing provisions of this Section, a stockholder
shall also comply with all applicable requirements of the 1934 Act and the rules
and regulation thereunder with respect to the matters set forth in this Section.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Powers. The property, affairs, and business of the
Corporation shall be managed by the Board of Directors, which may exercise all
the powers of the Corporation except those powers vested solely in the
stockholders of the Corporation by statute, by the Articles of Incorporation, or
by these By-Laws. [MGCL ss. 2-401]
Section 3.2. Power to Issue and Sell Stock. The Board of Directors may
from time to time authorize by resolution the issuance and sale of any of the
Corporation's authorized shares to such persons as the Board of Directors shall
deem advisable and such resolution shall fix the consideration or minimum
consideration for which such shares are to be issued, or a formula or method
pursuant to which such consideration is to be fixed and determined, and shall
include a fair description of any consideration other than money and a statement
of the actual value of such consideration as then determined by the Board of
Directors or a statement that such consideration is or will be not less than a
stated sum. [MGCL ss.ss. 2-201, 2-203]
Section 3.3. Power to Declare Dividends.
(a) The Board of Directors, from time to time as they may deem
advisable to the extent permitted by applicable law, may declare and pay
dividends in cash or other property of the
Corporation, out of any source available for dividends, to the stockholders
according to their respective rights and interests. [MGCL ss. 2-309]
(b) The Board of Directors shall cause to be accompanied by a written
statement any dividend payment wholly or partly from any source other than
(i) the Corporation's accumulated undistributed net income
(determined in accordance with good accounting practice and the rules
and regulations of the Securities and Exchange Commission then in
effect) and not including profits or losses realized upon the sale of
securities or other properties; or
(ii) the Corporation's net income so determined for the
current or preceding fiscal year. [MGCL ss. 2-309; ICA ss. 19(a)]
Such statement shall adequately disclose the source or sources of such
payment and the basis of calculation, and shall be in such form as the
Securities and Exchange Commission may prescribe.
(c) Notwithstanding the above provisions of this Section 3.3, the Board
of Directors may at any time declare and distribute pro rata among the
stockholders a stock dividend out of the Corporation's authorized but unissued
shares of stock to the extent permitted by applicable law, including any shares
previously purchased by the Corporation, provided that such dividend shall not
be distributed in shares of any class with respect to any shares of a different
class. [MGCL ss. 2-309(e)]
Section 3.4. Number and Term. The Board of Directors shall consist of
such number of Directors, not less than three nor more than ten, as may be
specified by resolution adopted by at least the majority of the entire Board of
Directors, provided that at least 40% of the entire Board of Directors shall be
persons who are not interested persons of the Corporation as defined in the
Investment Company Act of 1940. The Directors shall be divided into three
classes, and shall be designated as Class 1, Class II, and Class III Directors,
respectively. The Class I Directors shall originally consist of three Directors
who shall be elected at the annual meeting of stockholders held in 1988 and
shall serve for a term of office that expires at the annual meeting of
stockholders to be held in 1989. The Class II Directors shall originally consist
of three Directors who shall be elected at the annual meeting of stockholders
held in 1988 and shall serve for a term of office that expires at the annual
meeting of stockholders to be held in 1990. The Class III Directors shall
originally consist of three Directors who shall be elected at the annual meeting
of stockholders to be held in 1988 and shall serve for a term of office that
expires at the annual meeting of stockholders to be held in 1991. After
expiration of the terms of office specified for the Directors elected at such
1988 annual meeting, the Directors of each class shall serve for terms of three
years, or, when filling a vacancy, for the remainder of the full term of the
class of directors in which the vacancy occurred, and until their successors are
elected and have qualified pursuant to MGCL Section 3-804(c) as amended. [MGCL
Section 2-402, ICA Section 10(a), MGCL Section 3-804(c)]
Section 3.5. Election. At the first annual meeting of stockholders and
at each annual meeting thereafter, Directors shall be elected by vote of the
holders of a majority of the shares present in person or by proxy and entitled
to vote thereon. [MGCL ss. 2-404]
Section 3.6. Vacancies and Newly Created Directorships. Vacancies on
the Board of Directors shall be subject to and shall be filled in accordance
with MGCL Section 3-804(c). Accordingly, if any vacancies shall occur in the
Board of Directors by reason of death, resignation, or removal, or if the
authorized number of Directors shall be increased, the Directors then in office
shall continue to act, and such vacancies may be filled only by the affirmative
vote
of a majority of directors then in office, even if less than a quorum, and any
director elected to fill a vacancy shall hold office for the remainder of the
full term of the class of directors in which the vacancy occurred and until a
successor is elected and qualifies; provided, however, that immediately after
filling such vacancy, at least two-thirds (2/3) of the Directors then holding
office shall have been elected to such office by the stockholders of the
Corporation. In the event that at any time, other than the time preceding the
first annual stockholders' meeting, less than a majority of the Directors of the
Corporation holding office at that time were elected by the stockholders, a
meeting of the stockholders shall be held promptly and in any event within 60
days for the purpose of electing Directors to fill any existing vacancies in the
Board of Directors unless the Securities and Exchange Commission shall by order
extend such period. [MGCL ss. 2-407; ICA ss. 16]
Section 3.7. Removal. At any meeting of stockholders duly called and at
which a quorum is present, the stockholders may, by the affirmative vote of the
holders of a majority of the votes entitled to be cast for the election of
Directors, remove any Director or Directors from office, with cause, and may
elect a successor or successors to fill any resulting vacancies for the
unexpired terms of the removed Directors. [MGCL Section 2-406]
Section 3.8. Annual and Regular Meetings. The annual meeting of the
Board of Directors for choosing officers and transacting other proper business
shall be held at such time and place as the Board may determine. The Board of
Directors from time to time may provide by resolution for the holding of regular
meetings and fix their time and place within or outside the State of Maryland.
Notice of such annual and regular meetings need not be in writing, provided that
written notice of any change in the time or place of such meetings shall be sent
promptly, in the manner provided in Section 3.9 of this Article III for notice
of special meetings, to each Director
not present at the meeting at which such change was made. Members of the Board
of Directors or any committee designated thereby may participate in a meeting of
such Board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting. [MGCL ss. 2-409]
Section 3.9. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place and for any purpose when called by
the Chairman of the Board or by a majority of the Directors. Notice of special
meetings, stating the time and place, shall be (1) mailed to each Director at
his residence or regular place of business at least three days before the day on
which a special meeting is to be held or (2) delivered to him personally or
transmitted to him by telegraph, cable or other communication leaving a visual
record at least one day before the meeting. [MGCL ss. 2-409(b)]
Section 3.10. Waiver of Notice. No notice of any meeting need be given
to any Director who is present at the meeting or who waives notice of such
meeting in writing (which waiver shall be filed with the records of such
meeting), whether before or after the time of the meeting. [MGCL ss. 2-409(c)]
Section 3.11. Quorum and Voting. At all meetings of the Board of
Directors, the presence of a majority of the number of Directors then in office
shall constitute a quorum for the transaction of business. In the absence of a
quorum, a majority of the Directors present may adjourn the meeting, from time
to time, until a quorum shall be present. The action of a majority of the
Directors present at a meeting at which a quorum is present shall be the action
of the Board of Directors, unless the concurrence of a greater proportion is
required for such action by
law, by the Articles of Incorporation or by these By-Laws, provided that no
action shall be taken without the affirmative vote of 75 % of the Directors,
with respect to the following matters:
(i) a merger or consolidation of the Corporation with or into, or the
sale of substantially all of the Corporation's assets to, any other
company;
(ii) the dissolution of the Corporation;
(iii) the election of officers and the compensation of directors and
officers; or (iv) the declaration that an amendment to the Articles of
Incorporation is advisable, if such amendment would cause any stock of the
Corporation to be a "redeemable security" under the Investment Company Act
of 1940. [MGCL ss. 2-408]
Section 3.12. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of 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 proceedings of the
Board or committee. [MGCL ss. 2-408(c)]
Section 3.13. Compensation of Directors. Directors shall be entitled to
receive such compensation from the Corporation for their services as may from
time to time be determined by resolution of the Board of Directors.
ARTICLE IIIA
EMERITUS FOUNDING DIRECTORS
Section 3A.1. Number; Qualification; Term: The Board of Directors may
from time to time designate and appoint one or more directors who have served on
the Board of Directors since the Corporation's inception to the position of
"emeritus founding director". Each emeritus founding director shall serve for
such term as shall be specified in the resolution of the Board of
Directors appointing him or until his earlier resignation or removal. An
emeritus founding director may be removed from such position with or without
cause by the vote of a majority of the Board of Directors given at any regular
meeting or special meeting.
Section 3A.2. Duties; Remuneration: An emeritus founding director shall
be invited to attend all meetings of the Board of Directors but shall not be
present at any portion of a meeting from which the emeritus founding director
shall have been excluded by vote of the directors. An emeritus founding director
shall not be a "Director" or "officer" within the meaning of the Corporation's
Articles of Incorporation or of these By-Laws, shall not be deemed to be a
member of an "advisory board" within the meaning of the Investment Company Act
of 1940, as amended from time to time, shall not hold himself out as any of the
foregoing, and shall not be liable to any person for any act of the Corporation.
Notice of special meetings may be given to an emeritus founding director but the
failure to give such notice shall not affect the validity of any meeting or the
action taken thereat. An emeritus founding director shall not have the powers of
a Director, may not vote at meetings of the Board of Directors and shall not
take part in the operation or governance of the Corporation. An emeritus
founding director shall receive such compensation as shall be determined by the
vote of a majority of the Board of Directors.
ARTICLE IV
COMMITTEES
Section 4.1. Organization. By resolution adopted by the Board of
Directors, the Board may designate one or more committees, including an
Executive Committee, which shall consist of one or more Directors. The Chairman
of such committees shall be elected by the Board of Directors. Each member of a
committee shall be a Director and shall hold office in accordance with the
By-Laws. The Board of Directors shall have the power at any time to change the
members of such committees and to fill vacancies in the committees. The Board
may delegate to these committees any of its powers, except the powers to declare
a dividend, authorize the issuance of stock, recommend to stockholders any
action requiring stockholders' approval, amend these By-Laws, or approve any
merger or share exchange which does not require stockholder approval. If the
Board of Directors has given general authorization for the issuance of stock
providing for or establishing a method or procedure for determining the maximum
number of shares to be issued, a committee of the Board, in accordance with that
general authorization or any stock option or other plan or program adopted by
the Board, may authorize or fix the terms of stock subject to classification or
reclassification and the terms on which any stock may be issued, including all
terms and conditions required or permitted to be established or authorized by
the Board of Directors under Section 3.2 of these By-Laws. [MGCL ss. 2-411]
Section 4.2. Executive Committee. Unless otherwise provided by
resolution of the Board of Directors, when the Board of Directors is not in
session the Executive Committee shall have and may exercise all powers of the
Board of Directors in the management of the business and affairs of the
Corporation that may lawfully be exercised by an Executive Committee. The
Chairman of the Board, if any, and the President shall be members of the
Executive Committee.
Section 4.3. Other Committees. The Board of Directors may appoint other
committees which shall have such powers and perform such duties as may be
delegated from time to time by the Board.
Section 4.4. Proceedings and Quorum. In the absence of an appropriate
resolution of the Board of Directors, each committee may adopt such rules and
regulations governing its proceedings, quorum and manner of acting as it shall
deem proper and desirable. In the event any member of any committee is absent
from any meeting, the members thereof present at the
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.
ARTICLE V
OFFICERS OF THE CORPORATION;
OFFICERS OF THE BOARD
Section 5.1. General. The officers of the Corporation shall be a
President, a Secretary and a Treasurer, and may include one or more Vice
Presidents, Assistant Secretaries or Assistant Treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 5.10
of this Article V. The Board of Directors may elect, but shall not be required
to elect, as officers of the Board and not as officers of the Corporation, a
Chairman of the Board and, in the discretion of the Board, a Vice Chairman of
the Board. [MGCL ss. 2-412]
Section 5.2. Election, Tenure and Qualifications. The officers of the
Corporation, except those appointed as provided in Section 5. 10 of this Article
V, shall be elected by the Board of Directors at its first meeting or such
meetings as shall be held prior to its first annual meeting, and thereafter
annually at its annual meeting. If any officers are not chosen at any annual
meeting, such officers may be chosen at any subsequent regular or special
meeting of the Board. Except as otherwise provided in this Article V, each
officer chosen by the Board of Directors shall hold office until the next annual
meeting of the Board of Directors and until his successor shall have been
elected and qualified. Any person may hold one or more offices of the
Corporation except the same person may not concurrently hold the offices of
President and Vice President. The Chairman of the Board, if any, shall be
elected from among the Directors of the Corporation and may hold such office
only so long as he continues to be a Director. No other officer need be a
Director. [MGCL ss. 2-413]
Section 5.3. Removal and Resignation. Whenever in the Board's judgment
the best interest of the Corporation will be served thereby, any officer may be
removed from office by the vote of a majority of the members of the Board of
Directors given at a regular meeting or any special meeting called for such
purpose. Any officer may resign his office at any time by delivering a written
resignation to the Board of Directors, the President, the Secretary, or any
Assistant Secretary. Unless otherwise specified therein, such resignation shall
take effect upon delivery. [MGCL ss. 2413]
Section 5.4. Chairman of the Board. The Chairman of the Board, if there
be such, shall preside at all stockholders' meetings and at all meetings of the
Board of Directors and shall be ex officio a member of all committees of the
Board of Directors. He shall have such powers and perform such other duties as
may be assigned to him from time to time by the Board of Directors.
Section 5.5. Vice Chairman of the Board. The Vice Chairman of the
Board, if there be such, shall consult with the Chairman as to the policies of
the Corporation and as to the agendas to be presented at the meetings of the
Board of Directors. In the absence of the Chairman of the Board and the
President, he shall preside at meetings of the Board of Directors. He shall have
such powers and perform such other duties as may be assigned to him from time to
time by the Chairman of the Board.
Section 5.6. President. The President or the person so designated by
the Board of Directors of the Corporation as such, shall be the chief executive
officer of the Corporation and, in the absence of the Chairman of the Board and
of the Vice Chairman of the Board or if neither such officer shall have been
chosen, the President shall preside at all stockholders' meetings and at all
meetings of the Board of Directors and shall in general exercise the powers and
perform the
duties of the Chairman of the Board. Subject to the supervision of the Board of
Directors, he shall have general charge of the business, affairs, and property
of the Corporation and general supervision over its officers, employees and
agents. Except as the Board of Directors may otherwise order, he may sign in the
name and on behalf of the Corporation all deeds, bonds, contracts or agreements.
He shall exercise such other powers and perform such other duties as from time
to time may be assigned to him by the Board of Directors.
Section 5.7. Vice President. The Board of Directors may from time to
time elect one or more Vice Presidents who shall have such powers and perform
such duties as from time to time may be assigned to them by the Board of
Directors or the President. At the request or in the absence or disability of
the President, the Vice President (or, if there are two or more Vice Presidents,
then the senior of the Vice Presidents present and able to act) may perform all
the duties of the President and, when so acting, shall have all the powers of
and be subject to all the restrictions upon the President.
Section 5.8. Treasurer and Assistant Treasurers. The Treasurer shall be
the principal financial and accounting officer of the Corporation and shall have
general charge of the finances and books of account of the Corporation. Except
as otherwise provided by the Board of Directors, he shall have general
supervision of the funds and property of the Corporation and of the performance
by the Custodian of its duties with respect thereto. He shall render to the
Board of Directors, whenever directed by the Board, an account of the financial
condition of the Corporation and of all his transactions as Treasurer; and as
soon as possible after the close of each financial year he shall make and submit
to the Board of Directors a like report for such financial year. He shall
perform all acts incidental to the Office of Treasurer, subject to the control
of the Board of Directors.
Any Assistant Treasurer may perform such duties of the Treasurer as the
Treasurer or the Board of Directors may assign, and, in the absence of the
Treasurer, he may perform all the duties of the Treasurer.
Section 5.9. Secretaries and Assistant Secretaries. The Secretary shall
attend to the giving and serving of all notices of the Corporation and shall
record all proceedings of the meetings of the stockholders and Directors in
books to be kept for that purpose. He shall keep in safe custody the seal of the
Corporation, and shall have charge of the records of the Corporation, including
the stock books and such other books and papers as the Board of Directors may
direct and such books, reports, certificates and other documents required by law
to be kept, all of which shall at all reasonable times be open to inspection by
any Director. He shall perform such other duties as appertain to his office or
as may be required by the Board of Directors.
Any Assistant Secretary may perform such duties of the Secretary as the
Secretary or the Board of Directors may assign, and, in the absence of the
Secretary, he may perform all the duties of the Secretary.
Section 5.10. Subordinate Officers. The Board of Directors from time to
time may appoint such other officers or agents as it may deem advisable, each of
whom shall have such title, hold office for such period, have such authority and
perform such duties as the Board of Directors may determine. The Board of
Directors from time to time may delegate to one or more officers or agents the
power to appoint any such subordinate officers or agents and to prescribe their
respective rights, terms of office, authorities and duties.
Section 5.11. Remuneration. The salaries or other compensation of the
officers of the Corporation shall be fixed from time to time by resolution of
the Board of Directors, except that the Board of Directors may by resolution
delegate to any person or group of persons the power to
fix the salaries or other compensation of any subordinate officers or agents
appointed in accordance with the provisions of Section 5.10 of this Article V.
Section 5.12. 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, funds or securities that may
come into his hands. [ICA ss. 17(g)]
ARTICLE VI
NET ASSET VALUE
Section 6.1. Valuation of Assets. 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. Such method shall be
reduced to writing and maintained in the Corporation's permanent records.
ARTICLE VII
CAPITAL STOCK
Section 7.1. Certificates of Stock. The interest of each stockholder of
the Corporation shall be evidenced in such form as the Board of Directors may
from time to time prescribe. No certificate shall be valid unless it is signed
by the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation and
sealed with its seal, or bears the facsimile signatures of such officers and a
facsimile of such seal. [MGCL ss.ss. 2-210, 2-212]
Section 7.2. 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 a certificate or certificates for the same number of shares of
the same class, 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. The shares of stock of the
Corporation may be freely transferred, and the Board of Directors may, from time
to time, adopt rules and regulations with reference to the method of transfer of
the shares of stock of the Corporation.
Section 7.3. 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. [MGCL ss. 2-209]
Section 7.4. 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.
Section 7.5. Fixing of Record Date. The Board of Directors may fix in
advance a date as a record date for the determination of the stockholders
entitled to notice of or to vote at any stockholders' meeting or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or to receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, provided that
(1) such record date shall be within 90 days prior to the date on which the
particular action requiring such determination will be taken; (2) the transfer
books shall not be closed for a period longer than 20 days, and (3) in the case
of a meeting of stockholders, the record date or any closing of the transfer
books shall be at least 10 days before the date of the meeting. [MGCL ss. 2-511]
Section 7.6. Lost, Stolen or Destroyed Certificates. Before issuing a
new certificate for stock of the Corporation alleged to have been lost, stolen
or destroyed, the Board of Directors or any officer authorized by the Board may,
in its discretion, require the owner of the lost, stolen or destroyed
certificate (or his legal representative) to give the Corporation a bond or
other indemnity, in such form and in such amount as the Board or any such
officer may direct and with such surety or sureties as may be satisfactory to
the Board or any such officer, sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
[MGCL ss. 2-213]
ARTICLE VIII
FISCAL YEAR AND ACCOUNTANT
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall,
unless otherwise ordered by the Board of Directors, be twelve calendar months
ending on the 30th day of June.
Section 8.2. Accountant.
(a) The Corporation shall employ an independent public accountant or a
firm of independent public accountants of national reputation as its Accountant
to examine the accounts of the Corporation and to sign and certify financial
statements filed by the Corporation. The Accountant's certificates and reports
shall be addressed both to the Board of Directors and to the
stockholders. 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.
(b) A majority of the members of the Board of Directors who are not
"interested persons" (as such term is defined in the Investment Company Act of
1940, as amended) of the Corporation shall select the Accountant at any meeting
held within 30 days before or after the beginning of the fiscal year of the
Corporation or before the annual stockholders' meeting in that year. Such
selection shall be submitted for ratification or rejection at the next
succeeding annual stockholders' meeting. If such meeting shall reject such
selection, the Accountant shall be selected by majority vote of the
Corporation's outstanding voting securities, either at the meeting at which the
rejection occurred or at a subsequent meeting of stockholders called for that
purpose.
(c) Any vacancy occurring between annual meetings, due to the
resignation of the Accountant, may be filled by the vote of a majority of the
members of the Board of Directors who are not "interested persons." [ICA ss.
32(a)]
ARTICLE IX
CUSTODY OF SECURITIES
Section 9.1. Employment of a Custodian. The Corporation shall place and
at all times maintain in the custody of a Custodian (including any sub-custodian
for the Custodian) all funds, securities and similar investments owned by the
Corporation. The Custodian (and any sub-custodian) shall be an institution
conforming to the requirements of Section 17(f) of the Investment Company Act of
1940 and the rules of the U.S. Securities and Exchange Commission
thereunder. The Custodian shall be appointed from time to time by the Board of
Directors, which shall fix its remuneration. [ICA ss. 17(f)]
Section 9.2. Termination of Custodian Agreement. Upon termination of
the Custodian Agreement or inability of the Custodian to continue to serve, the
Board of Directors shall promptly appoint a successor Custodian, but in the
event that no successor Custodian can be found who has the required
qualifications and is willing to serve, the Board of Directors shall call as
promptly as possible a special meeting of the stockholders to determine whether
the Corporation shall function without a Custodian or shall be liquidated. If so
directed by vote of the holders of a majority of the outstanding shares of stock
entitled to vote of the Corporation, the Custodian shall deliver and pay over
all property of the Corporation held by it as specified in such vote.
ARTICLE X
INDEMNIFICATION AND INSURANCE
Section 10.1. Indemnification of Officers, Directors, Employees and
Agents. To the maximum extent permitted by the Investment Company Act of 1940,
the Securities Act of 1933 (as such statutes are now or hereinafter in force)
and by Maryland law in effect from time to time, the Corporation shall
indemnify, and shall pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to, (i) any individual who is a present or former
Director or officer of the Corporation or (ii) any individual who serves or has
served another corporation, partnership, joint venture, trust, employee benefit
plan or any other enterprise as a director or officer of such corporation or
other enterprise or as a partner or trustee of such partnership, joint venture,
trust, employee benefit plan or other enterprise at the request of the
Corporation. The Corporation may, with the approval of its Board of Directors,
provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Corporation in any of the capacities described in (i) or (ii) above and
to any employee or agent of the Corporation or a predecessor of the Corporation.
Indemnification shall be made only as authorized for a specific proceeding upon
(i) a determination that indemnification of such person is proper in the
circumstances because he has met the applicable standard of conduct for
indemnification and (ii) such other authorizations and determinations as may be
required by law to be made by (A) the Board of Directors of the Corporation by
the vote of a majority of a quorum consisting of Directors who are neither
"interested persons" of the Corporation as defined in the Investment Company Act
of 1940 nor parties to such proceeding or, if such quorum cannot be obtained, by
a majority vote of a committee of the Board of Directors consisting solely of
two or more such Directors who are duly designated to act in the matter by a
majority vote of the full Board of Directors; or (B) independent legal counsel
in a written opinion, which counsel shall be selected in accordance with such
procedures as may be required by law, provided, however, that such counsel shall
make only such determinations and authorizations as are permitted by law to be
made by independent counsel; or (C) the stockholders of the Corporation acting
in accordance with the Charter and By-Laws of the Corporation and applicable
law.
Neither the amendment nor repeal of this Section, nor the adoption or
amendment of any other provision of the By-Laws or Charter of the Corporation
inconsistent with this Section, shall apply to or affect in any respect any act
or failure to act which occurred prior to such amendment, repeal or adoption.
Section 10.2. Insurance of Officers, Directors, Employees and Agents.
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 is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in or arising out of his position,
whether or not the Corporation would have the power to indemnify him against
such liability. [MGCL ss. 2-418(k)]
ARTICLE XI
AMENDMENTS
Section 11.1. General. All By-Laws of the Corporation, whether adopted
by the Board of Directors or the stockholders, shall be subject to amendment,
alteration or repeal, and new By-Laws may be made, by the affirmative vote of a
majority of either: (1) the holders of record of the outstanding shares of stock
of the Corporation entitled to vote, at any annual or special meeting, the
notice or waiver of notice of which shall have specified or summarized the
proposed amendment, alteration, repeal or new By-Law; or (2) the Directors, at
any regular or special meeting the notice or waiver of notice of which shall
have specified or summarized the proposed amendment, alteration, repeal or new
By-Law. [MGCL ss. 2-109(b)]