EXHIBIT 2
By-Laws
BY-LAWS
of
EIS FUND, INC.
Incorporated under the Laws of the
State of New York
Amended as of February 13, 2002
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BY-LAWS
OF
EIS FUND, INC.
ARTICLE I
SHAREHOLDERS' MEETINGS
----------------------
All meetings of the shareholders shall he held at the principal
office of the Company in New York, New York, or such other place, whether or not
in the State of New York as is stated in the call or notice thereof.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
-------------------------------
The annual meeting of the shareholders of the Company shall be held
on such day during the first four months in each calendar year as shall be
specified in the notice thereof for the purpose of electing directors and for
the transaction of such other business as may properly be brought before such
meeting. If any such annual meeting shall not be held or the directors shall not
have been elected thereat or at any adjournment thereof, the Board of Directors
shall cause a special meeting of the shareholders for the election of directors
to he held as soon thereafter as is convenient. At such special meeting the
shareholders may elect directors and, as long as the notice thereof shall so
provide, transact other business with the same force and effect as at an annual
meeting of the shareholders duly called and held.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
--------------------------------
A special meeting of the shareholders may be called at any time by
the President or the Board of Directors, or otherwise as provided by law.
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ARTICLE IV
SHAREHOLDERS' MEETINGS - NOTICE
-------------------------------
A. NOTICE OF SHAREHOLDERS' MEETING. Except as otherwise required by
law, the Certificate of Incorporation or these By-laws, as from time to time
amended, notice of each annual or special meeting of the shareholders shall be
given not less than ten days nor more than sixty days before the day on which
the meeting is to be held to each shareholder of record entitled to vote at such
meeting by delivering a written or printed notice thereof to him personally, or
by mailing a copy of such notice, first-class postage prepaid, addressed to him
at his post-office address last known to the Secretary, or by transmitting
notice thereof to him at such address by telegraph or cable. If mailed such
notice shall be deemed to be given when deposited in the United States mail
addressed to the shareholder at his post-office address as it appears on the
records of the Company, with first-class postage thereon pre-paid. Except were
expressly required by law, no publication of any notice of meeting of
shareholders shall be required. Every notice shall state the time and place of
the meeting, and, in case of a special meeting, shall state briefly the purposes
thereof. Notice of any meeting of shareholders shall not be required to be given
to any shareholder who shall attend such meeting in person or by proxy or who
shall, in person or by authorized attorney, waive such notice in writing or by
telegraph or cable either before or after such meeting. Notice of any adjourned
session of a meeting of the shareholders shall not be required to be given,
except when expressly required by law.
B. NOTICE OF SHAREHOLDER NOMINEE. Only persons who are nominated in
accordance with the following procedures set forth in these By-laws shall be
eligible for election as directors of the Company. Nominations of persons for
election to the Board of Directors may be made at any annual or special meeting
of shareholders (a) by or at the direction of the Board of Directors (or any
duly authorized Committee thereof) or (b) by any shareholder of the Company (i)
who is a shareholder of record on the date of the giving of the notice provided
in this Article IV. B. and on the record date for the determination of
shareholders entitled to vote at such annual or special meeting and (ii) who
complies with the notice procedures set forth is this Article IV. B.
In addition to all other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely notice thereof
in proper written form to the Secretary of the Company.
For nominations to be properly and timely brought before an annual
meeting, a shareholder's notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Company not less than
sixty (60) days nor more than ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting of shareholders; provided, however,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
shareholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which notice of the
date of the annual meeting was mailed or public disclosures of the date of the
annual meeting was made, whichever, first occurs. For purposes of this Article
IV. B., "public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Company with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
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For nominations to be properly and timely brought before a special
meeting, a shareholder's notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Company not less than
sixty (60) days nor more than ninety (90) days prior to such special meeting or
the tenth day following the day on which public announcement is first made of
the date of the special meeting.
To be in proper written form, a shareholder's notice to the Secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Company which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act, and the rules and regulations promulgated thereunder, and (b) as
to the shareholder giving the notice (i) the name and record address of such
shareholder, (ii) the class or series and number of shares of capital stock of
the Company which are owned beneficially or of record by such shareholder, (iii)
a description of all arrangements or understandings between such shareholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nominations are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by proxy at
the annual or special meeting to nominate the persons named in its notice, and
(v) any other information relating to such shareholder that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to be named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Company
unless nominated in accordance with the procedures set forth in this Article IV.
B. If the Chairman of the annual or special meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman shall
declare at the meeting that the nomination was defective and such defective
nomination shall be disregarded.
C. NOTICE OF SHAREHOLDER BUSINESS. No business may be transacted at
an annual or special meeting of shareholders other than business that is either
(a) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual or special meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual or special meeting
by any shareholder of this Company (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Article IV.C. and on the
record date for the determination of shareholders entitled to vote at such
annual or special meeting and (ii) who complies with the notice procedures set
forth in this Article IV.C.
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In addition to any other applicable requirement, for business to be
properly brought before an annual or special meeting by a shareholder, such
shareholder must have given timely notice thereof in proper written form to the
Secretary of the Company.
For business to be properly and timely brought before an annual
meeting, a shareholder notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Company not less than
sixty (60) days nor more than ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting of shareholders; provided however, that
in the event that the annual meeting is called for a date that is not within
thirty (30) days before or after such anniversary date notice by the shareholder
in order to be timely must be so received not later than the close of business
on the tenth (10th) day following the day on which notice of the date of the
annual meeting was made, whichever first occurs. For purposes of this Article
IV.C., "public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act:
For business to be properly and timely brought before a special
meeting, a shareholder's notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Company not less than
sixty (60) days nor more than ninety (90) days prior to such special meeting as
the tenth day following the day on which public announcement is first made of
the date of the special meeting.
To be in proper written form, a shareholder notice to the Secretary
must set forth as to each matter such shareholder proposes to bring before the
annual or special meeting (i) a brief description of the business desired to be
brought before the annual or special meeting and the reasons for conducting such
business, (ii) the name and record address of such shareholder, (iii) the class
or series and number of shares of capital stock of the Company which are owned
beneficially or of record by such shareholder, (iv) a description of all
arrangements or understandings between such shareholder and any ether person or
persons (including their names) in connection with the proposal of such business
by such shareholder and any material interest of such shareholder in such
business and (v) a representation that such shareholder intends to appear in
person or by proxy at the annual or special meeting to bring business before the
meeting.
No business shall be conducted at the annual or special meeting of
shareholders except business in accordance with the procedures set forth in this
Article IV.C., provided, however, that, once business has been properly brought
before the annual or special meeting in accordance with such procedures, nothing
in this Article IV.C. shall be deemed to preclude discussion by any shareholder
of any such business. If the Chairman of an annual or special meeting determines
that business was not properly brought in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted.
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ARTICLE V
SHAREHOLDERS' MEETING - QUORUM AND VOTE
---------------------------------------
Except as otherwise expressly required by law, the Certificate of
Incorporation or these By-laws, as from time to time amended, at any meeting of
the shareholders the holders of 51% of all the capital stock issued and
outstanding and entitled to vote, represented by shareholders of record in
person or by proxy, shall constitute a quorum, but a lesser interest may adjourn
any meeting from time to time. When a quorum is present at any meeting, a
majority of the stock represented thereat shall decide any question brought
before such meeting unless the question is one upon which by express provision
of law, the Certificate Incorporation or these By-laws a larger or different
vote is required, in which case such express provision shall govern and control
the decision of such question.
ARTICLE VI
SHAREHOLDERS' MEETINGS - PROXIES AND VOTING
-------------------------------------------
Each outstanding share of stock having voting power shall be entitled
to one vote on each matter submitted to a vote at a meeting of shareholders. A
shareholder may vote the shares owned of record by him either in person or by
proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from its date,
unless otherwise provided in the proxy. At all meetings of shareholders, unless
the voting is conducted by inspectors appointed by the chairman of the meeting,
all questions relating to the qualification of voters and the validity of
proxies and the acceptance or rejection of votes shall be decided by the
chairman of the meeting.
ARTICLE VII
CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
------------------------------------------
Notwithstanding anything to the contrary contained in these By-laws,
and to the extent consistent with the Certificate of Incorporation and the
Investment Company Act of 1940, whenever the vote of the shareholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of law, the Certificate of Incorporation
and these By-laws, such meeting and vote of the shareholders may be dispensed
with if all of the shareholders who would have been entitled to vote, if such
meeting were held, shall consent in writing to such corporate action being
taken.
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ARTICLE VIII
DIRECTORS
---------
The number of directors of the Company shall be such number, not
exceeding nine, as may be fixed from time to time by the vote of a majority of
the entire Board of Directors. The number of directors so fixed may be increased
or decreased from time to time by vote of a majority of the entire Board of
Directors, but the tenure of office of a director shall not be affected by any
decrease in the number of directors so made by the Board. At no time shall there
be less than three directors.
At the first annual meeting of shareholders and each annual meeting
thereafter, except as otherwise provided by law, the shareholders shall elect
directors to hold office until the next annual meeting or until their successors
are duly elected and qualified or until they sooner die, resign or are removed.
Directors need not be shareholders in the Company.
Any vacancy occurring in the Board of Directors by reason of an
increase in the number of directors or by reason of removal of a director with
cause may be filled by a majority of the remaining members of the Board of
Directors although such majority is less than a quorum. A director elected by
the Board of Directors to fill a vacancy shall be elected to hold office until
the next annual meeting of shareholders or until his successor is duly elected
and qualified or until he sooner dies, resigns or is removed. Notwithstanding
the foregoing, no vacancies occurring in the Board of Directors may be filled by
vote of the remaining members of the Board if immediately after filling any such
vacancy less than two-thirds of the directors then holding office shall have
been elected to such office by the holders of the outstanding voting securities
of the Company at any annual or special meeting. In the event that at any time
less than a majority of the directors of the Company holding office at that time
were so elected by the holders of the outstanding voting securities, the Board
of Directors of the Company shall forthwith cause to be held as promptly as
possible, and in any event within 64 days, a meeting of such holders for the
purpose of electing directors to fill any existing vacancies in the Board of
Directors, unless such period is extended by order of the Securities and
Exchange Commission.
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ARTICLE IX
POWERS OF DIRECTORS
-------------------
The business and affairs of the Company shall be managed by its Board
of Directors, which may exercise all of the powers of the Company, except such
as are by law, the Certificate of Incorporation or by these By-laws conferred
upon or reserved to the shareholders.
ARTICLE X
COMMITTEES OF DIRECTORS
-----------------------
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, designate one or more committees, each such
committee to consist of three or more directors of the Company, which, to the
extent provided in said resolution or resolutions, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Company (including, without limiting the generality of the
foregoing, the powers of the Board of Directors as specified in these By-laws;
provided, however, that it shall not have the power to fill vacancies in the
Board of Directors or in any committee thereof, to authorize the issuance of
shares of the capital stock of the Company, to submit any matter to the
shareholders which requires shareholders' approval, to make or amend these
By-laws, to fix the compensation of any director or to amend or repeal any
resolution of the Board of Directors which by its terms shall not be so
amendable or repealable), and may authorize the seal of the Company to be
affixed to all papers which may require it, such committee or committees to have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. 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 to change the members of any such committee at any time, to designate
alternate members thereof, to fill vacancies therein, and to discharge any such
committee, either with or without cause, at any time.
The committees shall keep minutes of their proceedings and shall
report the same to the Board of Directors at the meeting next succeeding, and
any action by the committees shall be subject to revision and alteration by the
Board of Directors, provided that no rights of third persons shall be affected
by any such revision or alteration.
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ARTICLE XI
MEETINGS OF DIRECTORS
---------------------
Regular meetings of the Board of Directors may be held in such places
within or without the State of New, York, and at such times as the Board may
from time to time determine, and if so determined, notice thereof need not be
given. Special meetings of the Board of Directors may be held in such places
within or without the State of New York and at such times upon call by the
President or a majority of the directors, and, except as hereinafter provided,
notice thereof shall be given to each director by the Secretary, the President
or the directors calling the meeting, either personally or in writing by mail or
by telegram, at least twenty-four hours prior to such meeting. Notice of any
regular or special meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to him. If at any time the office of Chairman of the Board is not filled,
the President shall preside at all meetings of the Board of Directors at which
he is present.
ARTICLE XII
DIRECTORS' MEETINGS - QUORUM AND VOTE
-------------------------------------
One-third of the members of the Board of Directors shall constitute a
quorum for the transaction of business. A majority of the Board of Directors
present at a meeting thereof, whether or not a quorum is present, may adjourn
any meeting to another time and place. Notice of any adjournment of a meeting to
another time or place shall be given to the directors not present at the time of
the adjournment and, unless such time and place are announced at the meeting, to
the other directors. When a quorum is present at any meeting a majority of the
members present thereat shall decide any question brought before such meeting
except as otherwise expressly required by law or by these By-laws.
ARTICLE XIII
COMPENSATION OF DIRECTORS
-------------------------
The directors may receive such directors' fees, compensation and
expenses for attendance at directors' meetings, for serving on committees and
for discharging their duties as shall be fixed from time to time by resolution
of the Board of Directors. Nothing herein contained shall be construed to
preclude any director from serving the Company in any other capacity and
receiving compensation therefor.
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ARTICLE XIV
REMOVAL OF DIRECTORS
--------------------
Any director may be removed from office for cause, by vote of the
holders of a majority of the common stock issued and outstanding and entitled to
vote. Unless in conjunction with such removal the number of directors of the
Company has been accordingly decreased by vote of the holders of a majority of
the common stock issued and outstanding and entitled to vote, the shareholders
may elect a successor in accordance with the provisions of these By-laws. To the
extent consistent with the Investment Company Act of 1940, the Board of
Directors may by vote of not less than a majority of the directors then in
office remove from office for cause any director.
ARTICLE XV
OFFICERS
--------
The officers of the Company shall be a President, a Secretary and a
Treasurer. All officers shall be elected by the Board of Directors and a regular
meeting of the directors may be held for the purpose of electing officers
immediately after the annual shareholders' meeting and at the same place without
notice. The Board of Directors may, if it so determines, elect a Chairman of the
Board and one or more Vice Presidents. Two or more offices, except those of
President and Secretary, 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 require by law, the Certificate of Incorporation or these By-laws
to be executed, acknowledged or verified by two or more officers. The salaries
of all officers of the Company shall be fixed by the Board of Directors.
ARTICLE XVI
ELIGIBILITY OF OFFICERS
-----------------------
The Chairman of the Board shall be a director of the Company. The
President, Vice President, the Secretary and the Treasurer, and such other
officers as may be appointed need not be directors of the Company.
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ARTICLE XVII
ADDITIONAL OFFICERS AND AGENTS; DUTIES OF OFFICERS
--------------------------------------------------
The Board of Directors at its discretion may appoint one or more
Assistant Treasurers, and one or more Assistant Secretaries and such other
officers or agents as it may deem advisable, and may prescribe the duties
thereof. The officers shall have such duties as are prescribed herein and as
shall be prescribed by the Board of Directors.
ARTICLE XVIII
CHAIRMAN OF THE BOARD OF DIRECTORS
----------------------------------
The Chairman of the board, if any, shall preside at all meetings of
the Board of Directors at which he is present. He shall have such authority and
duties as the Board of Directors shall from time to time determine and as
provided by law.
ARTICLE XIX
PRESIDENT AND VICE PRESIDENTS
-----------------------------
The President shall be the chief executive officer and, subject to
the Board of Directors, shall have general charge and management of the property
and affairs of the Company. If present, he shall preside at all meetings of the
shareholders unless the Board of Directors shall delegate such duty to the
Chairman of the Board. The President, a Vice President, or the Treasurer, unless
some other person is thereunto specifically authorized by vote of the Board of
Directors, shall sign all deeds, contracts, registration statements and other
documents and instruments of the Company. Vice Presidents shall each have such
other duties and shall have such other powers as the Board of Directors shall
from time to time designate.
The Board of Directors may designate a Vice President as Executive
Vice President. The Executive Vice President, if any such officer is so
designated by the Board of Directors, shall be the principal executive assistant
to the President and, as such, shall coordinate the activities of all other
officers and employees of the Company, shall oversee the general administration
of the Company, and shall perform such other duties and have such other powers
as shall be delegated by the Board of Directors and the President. In addition,
the Executive Vice President shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President.
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ARTICLE XX
SECRETARY
---------
The Secretary shall attend all meetings of the Board of Directors and
all meetings of the shareholders and record all the proceedings of the meetings
of the Company and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
He shall give, or cause to be given, notice of all meetings of the shareholders
and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President, under whose
supervision he shall be. He shall keep in safe custody the seal of the Company
and, when authorized by the Board of Directors, affix the same to any instrument
requiring it and, when so affixed, it shall be attested by his signature or by
the signature of an Assistant Secretary.
ARTICLE XXI
TREASURER
---------
The Treasurer shall, subject to the order of the Board of Directors
and subject to any arrangement made by the Board with a bank or trust company as
custodian pursuant to the provisions of the Certificate of Incorporation, have
the care and custody of the money, funds, portfolio securities, valuable papers
and documents of the Company, and shall have and exercise under the supervision
of the Board of Directors all powers and duties commonly incident to his office
and as provided by law, including the power to endorse for deposit or collection
all notices, checks and other instruments payable to the Company or its order.
He shall keep accurate books of account of the Company's transactions which
shall be the property of the Company and which together with all other property
of the Company in his possession shall be subject at all times to the inspection
and control of the Board of Directors. He shall deposit all funds of the Company
in such bank or banks, trust company or trust companies or such firm or firms
doing a banking business as the Board of Directors shall designate.
ARTICLE XXII
SERVICE OF OFFICERS
-------------------
The officers of the Company shall serve until they are removed,
resign or until their successors are chosen and qualify. Any officer may be
removed by the Board of Directors with or without cause. Such removal shall be
without prejudice to the contractual rights, if any, of the persons so removed.
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ARTICLE XXIII
EXECUTION OF INSTRUMENTS AND DOCUMENTS AND SIGNING
--------------------------------------------------
OF CHECKS AND OTHER OBLIGATIONS AND TRANSFERS
---------------------------------------------
All instruments, documents and other papers shall be executed in the
name and on behalf of the Company and all checks, notes, drafts and other
obligations for the payment of money by the Company shall be signed, and all
transfers of securities standing in the name of the Company shall be executed,
by the President, any Vice President or the Treasurer or by any one or more
officers or agents of the Company as shall be designated for that purpose by
vote of the Board of Directors.
ARTICLE XXIV
CERTIFICATES OF STOCK
---------------------
Each shareholder shall be entitled to a certificate or certificates
of full shares (but not fractional shares) of capital stock of the Company owned
by him, in such form as shall, in conformity to law, be prescribed from time to
tine by the Board of Directors. Certificates shall be signed by the Chairman of
the Board, if any, or the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary, and such
signatures maybe facsimiles when the laws of the State of New York shall permit.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon any certificate ceases to be an
officer, transfer agent or registrar before the certificate is issued, the
certificate may nevertheless be issued by the Company with the same effect as if
he were such officer, transfer agent or registrar as of the date of its issue.
No certificate shall be issued for any share of stock until such share is fully
paid.
ARTICLE XXV
LOST CERTIFICATES
-----------------
The Board of Directors may establish procedures for the issuance of a
new certificate or certificates in place of any certificate or certificates
theretofore issued by the Company alleged to have been stolen, lost or
destroyed. Such procedures may include, among other things, and as a condition
precedent to the issuance of a new certificate, a requirement that the owner of
such stolen, lost or destroyed certificate or certificates, or his legal
representative, advertise the same, and give the Company a bond, with sufficient
surety, to indemnify it against any loss or claim which may arise by reason of
the issuance of a new certificate.
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ARTICLE XXVI
TRANSFER OF STOCK
-----------------
The transfer of shares of stock may be registered on the books of the
Company upon written request in proper form if no share certificate has been
issued, or in the event such a certificate has been issued by surrender of said
certificate duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer.
No transfer of shares shall be permitted if such transfer would or
might, in the reasonable opinion of the Company, cause the Company to incur any
responsibility for substantial expenses or any responsibility of the Company to
make any regulatory filings in any jurisdiction outside the United Stated.
ARTICLE XXVII
CLOSING, TRANSFER BOOKS: RECORD DATE
------------------------------------
The transfer books of the stock of the Company may be closed for such
period from time to time in anticipation of shareholders' meetings or the
declaration of dividends as the directors may from time to time determine. In
lieu of closing its transfer books and in order that the Company may determine
the shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a date, which
shall not be more than sixty nor less than ten days preceding the date of any
meeting of shareholders, or the event for the purposes of which it was fixed, as
a record date for the determination of the shareholders entitled to notice of,
and to vote at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend or other distribution or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and in such
case such shareholders and only such shareholders as shall be shareholders of
record at the close of business on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting and any adjournment thereof, or to
receive payment of such dividend or other distribution, or to receive such
allotment of rights, or to exercise such rights. or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Company after any such record date fixed as aforesaid.
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The Company shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
other distributions, and to vote or consent as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of New York.
ARTICLE XXVIII
FRACTIONAL SHARES
-----------------
The Board of Directors may authorize the issuance from time to time
of shares of the capital stock of the Company in fractional denominations,
provided that the transactions in which the terms upon which shares in
fractional denominations may be issued may from time to time be limited or
determined by or under authority of the Board of Directors.
ARTICLE XXIX
REPURCHASE OF SHARES
--------------------
The Company may repurchase its authorized and outstanding shares as
the Board of Directors may direct. None of the Company's shares or shareholders
shall have the right to effect a redemption at net asset or any other value.
ARTICLE XXX
DIVIDENDS AND OTHER DISTRIBUTIONS
---------------------------------
Dividends and distributions upon the capital stock of the Company,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting pursuant to
law. They may be paid in cash, in property or in its own shares, subject to the
provisions of law and of the Certificate of Incorporation. Without limiting the
sources of dividends or distributions upon the capital stock of the Company, the
Board of Directors may declare them from the following sources subject to the
limitations of Section 19 of the Investment Company Act of 1940:
(a) Net income for and during the current fiscal year or
the preceding fiscal year, or accumulated undistributed net income,
or both, not including in either case profits or losses from the sale
of securities or other properties.
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(b) Undistributed net profits from the sale of securities
or other properties during the current fiscal year.
(c) Accumulated undistributed net profits from the sale of
securities or other properties.
ARTICLE XXXI
INDEMNIFICATION OF OFFICERS. DIRECTORS AND OTHERS
-------------------------------------------------
The Company Shall to the fullest extent permitted by applicable law
as in effect at any time indemnify any person made, or threatened to be made, a
party to an action or proceeding, whether civil or criminal (including an action
or proceeding by or in the right of the Company or any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the
Company served in any capacity at the request of the Company), by reason of the
fact that he, his testator or his interstate was a director or officer of the
Company, or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity against judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys'
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, provided that (i) no indemnification shall be required in
connection with the settlement of any pending or threatened action or
proceeding, or any other disposition thereof except a final adjudication, unless
the Company has consented to a settlement or other disposition and (ii) the
Company shall mot be obligated to indemnify any person by reason of the adoption
of this Article XXXI to the extent such person is indemnified under a policy of
insurance. Such indemnification shall be a contract right and shall include the
right to be paid advances of any expenses incurred by such person in connection
with such action, suit or proceeding, consistent with the provisions of
applicable law in effect at any time. Notwithstanding any other provision
hereof, no repeal of this Article XXXI, or amendment hereof of any other
corporate action or agreement which prohibits or otherwise limits the right of
any person to indemnification or advancement or reimbursement of expenses
hereunder, shall be effective as to any person until the 60th day following
notice to such person of such action, and no such repeal or amendment or other
corporate action or agreement shall deprive any person of any right hereunder
arising out of any alleged or actual act or omission occurring prior to such
60th day. The Company is hereby authorized, but shall not be required, to enter
into agreement with any of its directors, officers or employees providing for
rights to indemnification and advancement and reimbursement of reasonable
expenses, including, attorneys' fees, to the extent permitted by law, but the
Company's failure to do so shall not in any manner affect or limit the rights
provided for by this Article XXXI or otherwise. Indemnification shall be deemed
to be "permitted" within the meaning of the first sentence hereof if it is not
expressly prohibited by applicable law as in effect at the time. For purposes of
this Article XXXI, the term "Company" shall include any legal successor to the
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Company, including any corporation which acquires all or substantially all the
assets of the Company in one or more transactions. For purposes of Article XXXI,
the Company shall be deemed to have requested a person to serve an employee
benefit plan where the performance by such person of his duties to the Company
or any subsidiary thereof also imposes duties on, or otherwise involves services
by, such person to the plan or participants or beneficiaries of the plan, and
excise taxes assessed on a person with respect to an employee benefit plan
pursuant to applicable law shall be considered fines.
ARTICLE XXXII
FUNDAMENTAL INVESTMENT POLICIES
-------------------------------
The following investment restrictions are deemed fundamental policies
and may be changed only by the vote of a majority of the Fund's outstanding
voting securities, which as used in this Prospectus means the lesser of (i) 67%
of the Fund's outstanding shares of Common Stock present at a meeting of the
holders if more than 50% of the outstanding shares of Common Stock are present
in person or by proxy or (ii) more than 50% of the Fund's outstanding shares of
Common Stock.
The Fund will not:
(1) Issue any senior securities (as defined in the Investment Company
Act of 1940) except insofar as any borrowing permitted by item 2 below might be
considered the issuance of senior securities.
(2) Borrow money except (i) to purchase securities, provided that the
aggregate amount of such borrowings may not exceed 20% of its total assets,
taken at market value at time of borrowing, and (ii) from banks for temporary or
emergency purposes in an amount not exceeding 5% of its total assets, taken at
market value at time of borrowing.
(3) Mortgage, pledge or hypothecate its assets in an amount exceeding
30% of its total assets, taken at market value at time of incurrence.
(4) Knowingly invest more than 20% of its total assets, taken at
market value at time of investment, in securities subject to legal or
contractual restrictions on resale, including securities which may be sold
publicly only if registered under the Securities Act of 1933.
(5) Act as an underwriter, except to the extent that, in connection
with the disposition of portfolio securities, the Fund may be deemed to be an
underwriter under applicable securities laws.
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(6) Purchase real estate or interests in real estate, except that the
Fund may invest in securities secured by real estate or interests therein, or
issued by companies, including real estate investment trusts, which deal in real
estate or interests therein.
(7) Make loans, except through the purchase of debt securities and
the loaning of its portfolio securities in accordance with the Fund's investment
policies.
(8) Invest in companies for the purpose of exercising control or
management.
(9) Purchase securities on margin (except that it may obtain such
short-term credits as may be necessary for the clearance of purchases or sales
of securities) or make short sales of securities (except for sales "against the
box").
(10) Purchase or retain securities of any issuer if, to the Fund's
knowledge, those officers and directors of the Fund or the Adviser individually
owning beneficially more than 1/2 of 1% of the outstanding securities of such
issuer together own beneficially more than 5% of such issuer's outstanding
securities.
(11) Invest in commodities or commodity contracts, or write or
purchase puts, calls or combinations of both.
(12) Purchase the securities of any other investment company, except
(a) in connection with a merger, consolidation, acquisition of assets or other
reorganization approved by the Fund's shareholders, and (b) in the case of
securities of closed-end investment companies only, in the open market where no
commission other than the ordinary broker's commission is paid; provided,
however, that in no event may investments in securities of other investment
companies exceed 10% of the Fund's total assets taken at market value at time of
purchase.
(13) Invest more than 25% of its total assets, taken at market value
at time of purchase, in securities of issuers in any one industry.
(14) Purchase securities issued by the Trust Company or any company
of which 50% or more of the voting securities are owned by the Trust Company or
an affiliate of the Trust Company, or any investment company (excluding the
Company) or real estate investment trust managed or advised by the Trust Company
or any such company.
(15) Invest more than 5% of its total assets, taken at market value
at time of purchase, in securities of any one issuer other than the United
States Government or its instrumentalities; or invest in the securities of
companies which (together with predecessors) have a record of less than three
years continuous operation, or purchase more than 10% of any class of the
outstanding voting securities of any one issuer.
(16) Purchase interests in oil, gas or other mineral exploration
programs; however, this limitation will not prohibit the acquisition of
securities of companies engaged in the production or transmission of oil, gas or
other minerals.
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If a percentage restriction on investment or utilization of assets
set forth in items 2, 3, 4, 10, 12, 13, 14 or 15 above is adhered to at the time
an investment is made, a later change in percentage resulting from, for example,
changing values or a change in the rating of a portfolio security will not be
considered a violation. The Fund may exchange securities, exercise any
conversion rights or exercise warrants or other rights to purchase common stock
or other equity securities and may hold any such securities so acquired without
regard to the foregoing investment restrictions, but the value of the securities
so acquired shall be included in any subsequent determination of the Fund's
compliance with the 20% limitation referred to in item 2 above.
ARTICLE XXXIII
VOTING OF PORTFOLIO SECURITIES
------------------------------
Portfolio securities of the Company shall be voted in such manner and
by such person or persons as the Board of Directors shall determine from time to
time.
ARTICLE XXXIV
SEAL
----
The seal of the Company shall consist of a flat-faced, circular die
with the words and figures "Excelsior Income Shares, Inc., New York, 1973"
inscribed thereon. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
ARTICLE XXXV
FISCAL YEAR
-----------
The fiscal year of the Company shall begin and end as determined by
the Board of Directors.
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ARTICLE XXXVI
MAJORITY VOTE OF SHAREHOLDERS PURSUANT TO THE INVESTMENT COMPANY ACT OF 1940
----------------------------------------------------------------------------
Whenever any corporate action, other than the election of directors,
is required by the Investment Company Act of 1940 to be authorized by the vote
of the holders of a majority of the Company's outstanding voting securities,
such vote shall mean the vote, at the annual or a special meeting of the
shareholders duly called, of the lesser of (A) 67% or more of the outstanding
shares of Common Stock of the Company present at such meeting, if the holders of
more than 50% of the outstanding shares of Common Stock are present or
represented by proxy, or (B) more than 50% of the outstanding shares of Common
Stock of the Company.
ARTICLE XXXVII
AMENDMENTS
----------
Except as otherwise provided in the Certificate of Incorporation or
these By-laws, these By-laws may be amended or added to, altered or repealed at
any annual or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the shares of capital stock issued and outstanding and
entitled to vote, provided notice of the general purport of the proposed
amendment, addition, alteration or repeal is given in the notice of said
meeting; or at any meeting of the Board of Directors by vote of a majority of
the directors then in office, except that the Board of Directors may not amend
Article XIV to permit removal by said Board without cause of any director
elected by the shareholders.
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