Item G.1.b.i The Central and Eastern Europe Fund, Inc.
The Central and Eastern Europe Fund, Inc.
(a Maryland corporation)
Bylaws
(Amended and Restated as of February 18, 2022)
ARTICLE I
Offices
Section 1. Principal Office. The principal office of The Central and Eastern
Europe Fund, Inc. (the "Corporation") shall be located at such place or places
as the Board of Directors may designate.
Section 2. Additional Offices. The Corporation may have additional offices at
such places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. All meetings of the stockholders of the
Corporation shall be held at the principal office of the Corporation or at such
other place as may from time to time be set by the Board of Directors and
stated in the notice of meeting.
Section 2. Annual Meetings. An annual meeting of the stockholders for the
election of Directors and transaction of any business within the powers of the
Corporation shall be held on a date and time and at a place set by the Board of
Directors each year and stated in the notice of the meeting.
Section 3. Special Meetings. (a) General. The President, Chief Executive
Officer or Board of Directors may call a special meeting of the stockholders.
Subject to subsection (b) of this Section 3, a special meeting of stockholders
shall also be called by the Secretary of the Corporation upon the written
request of the stockholders entitled to cast not less than a majority of all
the votes entitled to be cast at such meeting.
(b) Stockholder-Requested Special Meetings. (1) Any stockholder of record
seeking to have stockholders request a special meeting shall, by sending
written notice to the Secretary (the "Record Date Request Notice") by
registered mail, return receipt requested, request the Board of Directors to
fix a record date to determine the stockholders entitled to request a special
meeting (the "Request Record Date"). The Record Date Request Notice shall set
forth the purpose of the meeting and the matters proposed to be acted on at it,
shall be signed by one or more stockholders of record as of the date of
signature (or their duly authorized agents), shall bear the date of signature
of each such stockholder (or other agent) and shall set forth all information
relating to each such stockholder that must be disclosed in solicitations of
proxies for election of Directors in an election contest (even if an election
contest is not involved), or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or pursuant to the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and the rules promulgated thereunder. Upon
receiving the Record Date Request Notice, the Board of Directors may fix a
Request Record Date. The Request Record Date shall not precede and shall not be
more than ten days after the close of business on the date on which the
resolution fixing the Request Record Date is adopted by the Board of Directors.
If the Board of Directors, within ten days after the date on which a valid
Record Date Request Notice is received, fails to adopt a resolution fixing the
Request Record Date and make a public announcement of such Request Record Date,
the Request Record Date shall be the close of business on the tenth day after
the first date on which the Record Date Request Notice is received by the
Secretary.
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(2) In order for any stockholder to request a special meeting to act on any
matter that may properly be considered at a meeting of stockholders, one or
more written requests for a special meeting signed by stockholders of record
(or their duly authorized agents) as of the Request Record Date entitled to
cast not less than a majority (the "Special Meeting Percentage") of all of the
votes entitled to be cast on such matter at such meeting (the "Special Meeting
Request") shall be delivered to the Secretary. In addition, the Special Meeting
Request shall set forth the purpose of the meeting and the matters proposed to
be acted on at it (which shall be limited to the matters set forth in the
Record Date Request Notice received by the Secretary), shall bear the date of
signature of each such stockholder (or other agent) signing the Special Meeting
Request, shall set forth the name and address, as they appear in the
Corporation's books, of each stockholder signing such request (or on whose
behalf the Special Meeting Request is signed), the class and number of shares
of stock of the Corporation which are owned of record and beneficially by each
such stockholder and the nominee holder for, and number of, shares of stock of
the Corporation owned beneficially but not of record by such stockholder, shall
be sent to the Secretary by registered mail, return receipt requested, and
shall be received by the Secretary within 60 days after the Request Record
Date. Any requesting stockholder may revoke his, her or its request for a
special meeting at any time by written revocation delivered to the Secretary.
(3) The Secretary shall inform the requesting stockholders of the reasonably
estimated cost of preparing and mailing the notice of meeting (including the
Corporation's proxy materials). The Secretary shall not be required to call a
special meeting upon stockholder request and such meeting shall not be held
unless, in addition to the documents required by paragraph (2) of this
Section 3(b), the Secretary receives payment of such reasonably estimated cost
prior to the preparation and mailing or delivery of any notice of the meeting.
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(4) Except as provided in the next sentence, any special meeting shall be held
at such place, date and time as may be designated by the President, Chief
Executive Officer or Board of Directors, whoever has called the meeting. In the
case of any special meeting called by the Secretary upon the request of
stockholders (a "Stockholder-Requested Meeting"), such meeting shall be held at
such place, date and time as may be designated by the Board of Directors;
provided, however, that the date of any Stockholder-Requested Meeting shall be
not more than 90 days after the record date for such meeting (the "Meeting
Record Date"); and provided further that if the Board of Directors fails to
designate, within ten days after the date that a valid Special Meeting Request
is actually received by the Secretary (the "Delivery Date"), a date and time
for a Stockholder-Requested Meeting, then such meeting shall be held at 2:00
p.m. local time on the 90th day after the Meeting Record Date or, if such 90th
day is not a Business Day (as defined below), on the first preceding Business
Day; and provided further that in the event that the Board of Directors fails
to designate a place for a Stockholder-Requested Meeting within ten days after
the Delivery Date, then such meeting shall be held at the principal executive
offices of the Corporation. In fixing a date for any special meeting, the
President, Chief Executive Officer or Board of Directors may consider such
factors as he, she or it deems relevant within the good faith exercise of
business judgment, including, without limitation, the nature of the matters to
be considered, the facts and circumstances surrounding any request for meeting
and any plan of the Board of Directors to call an annual meeting or a special
meeting. In the case of any Stockholder-Requested Meeting, if the Board of
Directors fails to fix a Meeting Record Date that is a date within 30 days
after the Delivery Date, then the close of business on the 30th day after the
Delivery Date shall be the Meeting Record Date.
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(5) If at any time as a result of written revocations of requests for the
special meeting, stockholders of record (or their duly authorized agents) as of
the Request Record Date entitled to cast less than the Special Meeting
Percentage shall have delivered and not revoked requests for a special meeting,
the Secretary may refrain from mailing the notice of the meeting or, if the
notice of the meeting has been mailed, the Secretary may revoke the notice of
the meeting at any time before ten days before the meeting if the Secretary has
first sent to all other requesting stockholders written notice of such
revocation and of intention to revoke the notice of the meeting. Any request
for a special meeting received after a revocation by the Secretary of a notice
of a meeting shall be considered a request for a new special meeting.
(6) The Chairman of the Board of Directors, the President or the Board of
Directors may appoint regionally or nationally recognized independent
inspectors of elections to act as the agent of the Corporation for the purpose
of promptly performing a ministerial review of the validity of any purported
Special Meeting Request received by the Secretary. For the purpose of
permitting the inspectors to perform such review, no such purported request
shall be deemed to have been delivered to the Secretary until the earlier of
(i) five Business Days after receipt by the Secretary of such purported request
and (ii) such date as the independent inspectors certify to the Corporation
that the valid requests received by the Secretary represent stockholders of
record entitled to cast not less than the Special Meeting Percentage. Nothing
contained in this paragraph (6) shall in any way be construed to suggest or
imply that the Corporation or any stockholder shall not be entitled to contest
the validity of any request, whether during or after such five Business Day
period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto,
and the seeking of injunctive relief in such litigation).
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(7) For purposes of these Bylaws, "Business Day" shall mean any day other than
a Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
Section 4. Notice of Meetings of Stockholders. Not less than ten nor more than
90 days before each meeting of stockholders, the Secretary shall give to each
stockholder entitled to vote at such meeting and to each stockholder not
entitled to vote who is entitled to notice of the meeting notice in writing or
by electronic transmission stating the time and place of the meeting and, in
the case of a special meeting or as otherwise may be required by any statute,
the purpose for which the meeting is called, either by mail, presenting it to
the stockholder personally, leaving it at the stockholder's residence or usual
place of business, by electronic transmission or transmitting the notice to the
stockholder in any other manner authorized by law. If mailed, notice shall be
deemed to be given when deposited in the United States mail addressed to the
stockholder at the stockholder's post office address as it appears upon the
books of the Corporation, with postage thereon prepaid. If transmitted
electronically, such notice shall be deemed to be given when transmitted to the
stockholder by an electronic transmission to any address or number of the
stockholder at which the stockholder receives electronic transmissions. The
Corporation may give a single notice to all stockholders who share an address,
which single notice shall be effective as to any stockholder at such address,
unless a stockholder objects to receiving such single notice or revokes a prior
consent to receiving such single notice. Failure to give notice of any meeting
to one or more stockholders, or any irregularity in such notice, shall not
affect the validity of any meeting fixed in accordance with this Article II or
the validity of any proceedings at any such meeting. The Corporation may
postpone or cancel a meeting of stockholders by making a public announcement
(as defined in Section 13(c)(3) of this Article II) of such postponement or
cancellation prior to the meeting. Notice of the date, time and place to which
the meeting is postponed shall be given not less than ten days prior to such
date and otherwise in the manner set forth in this section.
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Section 5. Scope of Notice. Any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in
the notice, except such business as is required by any statute to be stated in
such notice. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the notice.
Section 6. Quorum. At any meeting of stockholders, the presence in person or by
proxy of stockholders entitled to cast one-third of all the votes entitled to
be cast at such meeting shall constitute a quorum; but this section shall not
affect any requirement under any statute or the charter of the Corporation for
the vote necessary for the adoption of any measure. If, however, such quorum
shall not be present at any meeting of the stockholders, the chairman of the
meeting, in accordance with Section 12 of this Article II of these Bylaws,
shall have the power to adjourn the meeting from time to time to a date not
more than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which
has been duly called and at which a quorum has been established, may continue
to transact business until adjournment, notwithstanding the withdrawal from the
meeting of enough stockholders to leave stockholders with fewer shares than
would be required to establish a quorum.
Section 7. Voting. A nominee for Director shall be elected as a Director only
if such nominee receives the affirmative vote of a majority of the total number
of votes entitled to be cast thereon at a meeting of stockholders duly called
and at which a quorum is present. Each share may be voted for as many
individuals as there are Directors to be elected and for whose election the
share is entitled to be voted. A majority of the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient
to approve any other matter which may properly come before the meeting, unless
more than a majority of the votes cast is required by statute or by the charter
of the Corporation. Unless otherwise provided in the charter, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders.
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Section 8. Proxies. A stockholder may cast the votes entitled to be cast by the
shares of stock of the Corporation owned of record by him, her or it either in
person or by proxy executed by the stockholder or the stockholder's duly
authorized agent in any manner authorized by law. Such proxy shall be filed
with the Secretary of the Corporation before or at the time of the meeting. No
proxy shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 9. Voting of Stock by Certain Holders. Stock of the Corporation
registered in the name of a corporation, limited liability company,
partnership, joint venture, trust or other entity, if entitled to be voted, may
be voted by the President or a Vice President, member, manager, general partner
or trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote
such stock pursuant to a bylaw or a resolution of the governing body of such
corporation or other entity or agreement of the partners of a partnership
presents a certified copy of such bylaw, resolution or agreement, in which case
such person may vote such stock. Any Director or other fiduciary may vote stock
registered in his or her name as such fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall
not be voted at any meeting and shall not be counted in determining the total
number of outstanding shares entitled to be voted at any given time, unless
they are held by it in a fiduciary capacity, in which case they may be voted
and shall be counted in determining the total number of outstanding shares at
any given time.
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The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Section 10. Inspectors. The Board of Directors, in advance of any meeting, may,
but need not, appoint one or more individual inspectors or one or more entities
that designate individuals as inspectors to act at the meeting or any
adjournment thereof. If an inspector is, or inspectors are, not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the chairman of the
meeting. The inspectors, if any, shall (i) determine the number of shares of
stock represented at the meeting, in person or by proxy, and the validity and
effect of proxies, (ii) receive and tabulate all votes, ballots or consents,
(iii) report such tabulation to the chairman of the meeting, (iv) hear and
determine all challenges and questions arising in connection with the right to
vote, and (v) do such acts as are proper to fairly conduct the election or
vote. Each such report shall be in writing and signed by the inspector or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
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Section 11. Presiding Officer - Stockholders Meetings. At every meeting of
stockholders, an individual appointed by the Board of Directors to be chairman
of the meeting shall conduct the meeting or, in the absence of such appointment
or appointed individual, the Chairman of the Board, if there be one, shall
conduct the meeting or, in the case of vacancy in office or absence of the
Chairman of the Board, one of the following Directors or officers present shall
conduct the meeting in the order stated: the Vice Chairman of the Board, if
there be one, the Chief Executive Officer, the President, the Vice Presidents
in their order of rank and seniority, or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as chairman, and the
Secretary, or, in his or her absence, an Assistant Secretary, or in the absence
of both the Secretary and Assistant Secretaries, a person appointed by the
chairman shall act as secretary.
Section 12. Conduct of Stockholders Meetings. The order of business and all
other matters of procedure at any meeting of stockholders shall be determined
by the chairman of the meeting. The chairman of the meeting may prescribe such
rules, regulations and procedures and take such action as, in the discretion of
such chairman, are appropriate for the proper conduct of the meeting,
including, without limitation, (a) restricting admission to the time set for
the commencement of the meeting; (b) limiting attendance at the meeting to
stockholders of record of the Corporation, their duly authorized proxies or
other such persons
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as the chairman of the meeting may determine; (c) limiting participation at the
meeting on any matter to stockholders of record of the Corporation entitled to
vote on such matter, their duly authorized proxies or other such persons as the
chairman of the meeting may determine; (d) limiting the time allotted to
questions or comments by participants; (e) determining when and for how long
the polls should be opened and when the polls should be closed; (f) maintaining
order and security at the meeting; (g) concluding the meeting or recessing or
adjourning the meeting to a later date and time and a place announced at the
meeting and (h) complying with any state and local laws and regulations
concerning safety and security. Unless otherwise determined by the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 13. Advance Notice of Stockholder Nominees for Director and Other
Stockholder Proposals. (a) Annual Meetings of Stockholders. (1) Nominations of
individuals for election to the Board of Directors and the proposal of other
business to be considered by the stockholders may be made at an annual meeting
of stockholders (i) pursuant to the Corporation's notice of meeting, (ii) by or
at the direction of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record as of the record date set by the
Board of Directors for the purpose of determining stockholders entitled to vote
at the annual meeting, at the time of giving of notice by the stockholder as
provided for in this Section 13(a) and at the time of the annual meeting, who
is entitled to vote at the meeting in the election of each individual so
nominated or on any such other business and who has complied with this
Section 13(a).
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(2) For any nomination or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1)
of this Section 13, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and, in the case of any such other
business, such other business must otherwise be a proper matter for action by
the stockholders. To be timely, a stockholder's notice shall set forth all
information required under this Section 13 and shall be delivered to the
Secretary of the Corporation not earlier than the 150/th/ day nor later than
5:00 p.m., Eastern Time, on the 120/th/ day prior to the first anniversary of
the date of the proxy statement (as defined in Section 13(c)(3) of this Article
II) for the preceding year's annual meeting; provided, however, that, in the
event that the date of the annual meeting is advanced or delayed by more than
30 days from the first anniversary of the date of the preceding year's annual
meeting, in order for notice by the stockholder to be timely, such notice must
be so delivered not earlier than the 150/th/ day prior to the date of such
annual meeting and not later than 5:00 p.m., Eastern Time, on the later of the
120/th/ day prior to the date of such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made.
The public announcement of a postponement or adjournment of an annual meeting
shall not commence a new time period for the giving of a stockholder's notice
as described above.
(3) Such stockholder's notice shall set forth:
(i) as to each individual whom the stockholder proposes to nominate
for election or reelection as a Director (each, a "Proposed Nominee"),
(A) all information relating to the Proposed Nominee that would be
required to be disclosed in connection with the solicitation of
proxies for the election of the Proposed Nominee as a Director in an
election contest (even if an election contest is not involved), or
would otherwise be required in connection with such solicitation, in
each case pursuant to Regulation 14A (or any successor provision)
under the Exchange Act and the rules thereunder; and
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(B) whether such stockholder believes any such Proposed Nominee
is, or is not, an "interested person" of the Corporation, as defined
in the Investment Company Act, and information regarding such
individual that is sufficient, in the discretion of the Board of
Directors or any committee thereof or any authorized officer of the
Corporation, to make such determination;
(ii) as to any other business that the stockholder proposes to bring
before the meeting, a description of such business, the stockholder's
reasons for proposing such business at the meeting and any material
interest in such business of such stockholder or any Stockholder
Associated Person (as defined below), individually or in the aggregate,
including any anticipated benefit to the stockholder or the Stockholder
Associated Person therefrom, other than an interest arising from the
ownership of Company Securities where such stockholder, Proposed Nominee
or Stockholder Associated Person receives no extra or special benefit
not shared on a pro rata basis by all other holders of the same class;
(iii) as to the stockholder giving the notice, any Proposed Nominee
and any Stockholder Associated Person,
(A) the class and number of all shares of stock or other
securities of the Corporation or any affiliate thereof (collectively,
the "Company Securities"), if any, which are owned (beneficially or
of record) by such stockholder, Proposed Nominee or Stockholder
Associated Person, the date on which each such Company Security was
acquired, and any short interest (including any opportunity to profit
or share in any benefit from any decrease in the price of such stock
or other security) in any Company Securities of any such person;
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(B) the nominee holder for, and number of, any Company Securities
owned beneficially but not of record by such stockholder, Proposed
Nominee or Stockholder Associated Person;
(C) whether and the extent to which such stockholder, Proposed
Nominee or Stockholder Associated Person, directly or indirectly
(through brokers, nominees or otherwise), is subject to or during the
last twelve months has engaged in any hedging, derivative or other
transaction or series of transactions or entered into any other
agreement, arrangement or understanding (including any short
interest, any borrowing or lending of securities or any proxy or
voting agreement), the effect or intent of which is to (I) manage
risk or benefit, for such stockholder, Proposed Nominee or
Stockholder Associated Person, of changes in the price of Company
Securities or (II) increase or decrease the voting power of such
stockholder, Proposed Nominee or Stockholder Associated Person in the
Corporation or any affiliate thereof disproportionately to such
person's economic interest in the Company Securities; and
(D) any substantial interest, direct or indirect (including,
without limitation, any existing or prospective commercial, business
or contractual relationship with the Corporation), by security
holdings or otherwise, of such stockholder, Proposed Nominee or
Stockholder Associated Person, in the Corporation or any affiliate
thereof, other than an interest arising from the ownership of Company
Securities where such stockholder, Proposed Nominee or Stockholder
Associated Person receives no extra or special benefit not shared on
a pro rata basis by all other holders of the same class;
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(iv) as to the stockholder giving the notice, any Stockholder
Associated Person with an interest or ownership referred to in clauses
(ii) or (iii) of this paragraph (3) of this Section 13(a) and any
Proposed Nominee, the name and address of such stockholder, as they
appear on the Corporation's stock ledger, and the current name and
business address, if different, of each such Stockholder Associated
Person and any Proposed Nominee.
(4) Such stockholder's notice shall, with respect to any Proposed
Nominee, be accompanied by a certificate executed by the Proposed Nominee
(i) certifying that such Proposed Nominee (a) is not, and will not become a
party to, any agreement, arrangement or understanding with any person or entity
other than the Corporation in connection with service or action as a Director
that has not been disclosed to the Corporation and (b) will serve as a Director
of the Corporation if elected; and (ii) attaching a completed Proposed Nominee
questionnaire (which questionnaire shall be provided by the Corporation, upon
request, to the stockholder in advance of providing the notice and shall, as
completed, include all information relating to the Proposed Nominee that would
be required to be disclosed in connection with the solicitation of proxies for
the election of the Proposed Nominee as a Director in an election contest (even
if an election contest is not involved), or would otherwise be required in
connection with such solicitation, in each case pursuant to Regulation 14A (or
any successor provision) under the Exchange Act and the rules thereunder, or
would be required pursuant to the rules of any national securities exchange or
over-the-counter market on which the Corporation's securities are listed or
traded). Such Proposed Nominee questionnaire shall, as completed, also include
a statement specifying which of clauses (1)-(7) of the definition of "Relevant
Experience and Country Knowledge" in Article III, Section 3 of the Bylaws the
person being nominated satisfies, information relating to such person
sufficient to support a determination that the person satisfies the specified
clause or clauses of the definition and a representation that the person does
not have a "Conflict of Interest" as defined in Article III, Section 3 of the
Bylaws.
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(5) Notwithstanding anything in this subsection (a) of this Section 13
to the contrary, in the event that the number of Directors to be elected to the
Board of Directors is increased, and there is no public announcement of such
action at least 130 days prior to the first anniversary of the date of the
proxy statement (as defined in Section 13(c)(3) of this Article II) for the
preceding year's annual meeting, a stockholder's notice required by this
Section 13(a) shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary of the Corporation not later than 5:00 p.m., Eastern
Time, on the tenth day following the day on which such public announcement is
first made by the Corporation.
(6) For purposes of this Section 13, "Stockholder Associated Person" of
any stockholder means (i) any person acting in concert with such stockholder,
(ii) any beneficial owner of shares of stock of the Corporation owned of record
or beneficially by such stockholder (other than a stockholder that is a
depositary) and (iii) any person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such stockholder or such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting. Nominations of
individuals for election to the Board of Directors may be made at a special
meeting of stockholders at which Directors are to be elected only (i) by or at
the direction of the Board of Directors or (ii) provided that the special
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meeting has been called in accordance with Section 3 of this Article II for the
purpose of electing Directors, by any stockholder of the Corporation who is a
stockholder of record as of the record date set by the Board of Directors for
the purpose of determining stockholders entitled to vote at the special
meeting, at the time of giving of notice provided for in this Section 13 and at
the time of the special meeting, who is entitled to vote at the meeting in the
election of each individual so nominated and who has complied with the notice
procedures set forth in this Section 13. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
individuals to the Board of Directors, any such stockholder may nominate an
individual or individuals (as the case may be) for election as a Director as
specified in the Corporation's notice of meeting, if the stockholder's notice,
containing the information required by paragraphs (a)(3) and (4) of this
Section 13 shall be delivered to the Secretary of the Corporation not earlier
than the 120/th/ day prior to such special meeting and not later than 5:00
p.m., Eastern Time, on the later of the 90/th/ day 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 and of the nominees proposed by
the Board of Directors to be elected at such meeting. The public announcement
of a postponement or adjournment of a special meeting shall not commence a new
time period for the giving of a stockholder's notice as described above.
(c) General. (1) If information submitted pursuant to this Section 13 by any
stockholder proposing a nominee for election as a Director or any proposal for
other business at a meeting of stockholders shall be inaccurate in any material
respect, such information may be deemed not to have been provided in accordance
with this Section 13. Any such stockholder shall notify the Corporation of any
material inaccuracy or change (within two Business Days of becoming aware of
such inaccuracy or change) in any such information. Upon written request by the
Secretary of the Corporation or the Board of Directors, any such
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stockholder shall provide, within five Business Days of delivery of such
request (or such other period as may be specified in such request), (A) written
verification, satisfactory, in the discretion of the Board of Directors or any
authorized officer of the Corporation, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section 13, and (B) a
written update of any information (including, if requested by the Corporation,
written confirmation by such stockholder that it continues to intend to bring
such nomination or other business proposal before the meeting) submitted by the
stockholder pursuant to this Section 13 as of an earlier date. If a stockholder
fails to provide such written verification or written update within such
period, the information as to which written verification or a written update
was requested may be deemed not to have been provided in accordance with this
Section 13.
(2) Only such individuals whose nomination is made in accordance with
this Section 13 shall be eligible for nomination and election by stockholders
as Directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
this Section 13. The chairman of the meeting shall have the power to determine
whether a nomination or any other business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with this
Section 13.
(3) For purposes of this Section 13, "the date of the proxy statement"
shall have the same meaning as "the date of the company's proxy statement
released to shareholders" as used in Rule 14a-8(e) promulgated under the
Exchange Act, as interpreted by the Securities and Exchange Commission or the
Staff thereof from time to time. "Public announcement" shall mean disclosure
(i) in a press release reported by the Dow Jones News Service, Associated
Press, Business Wire, PR Newswire or other widely circulated news or wire
service or (ii) in a document publicly filed by the Corporation with the
Securities and Exchange Commission and the staff thereof pursuant to the
Exchange Act or the Investment Company Act.
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(4) Notwithstanding the foregoing provisions of this Section 13, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the Investment Company Act and the rules and
regulations thereunder with respect to the matters set forth in this
Section 13. Nothing in this Section 13 shall be deemed to affect any right of a
stockholder to request inclusion of a proposal in, or the right of the
Corporation to omit a proposal from, the Corporation's proxy statement pursuant
to Rule 14a-8 (or any successor provision) under the Exchange Act. Nothing in
this Section 13 shall require disclosure of revocable proxies received by the
stockholder or Stockholder Associated Person pursuant to a solicitation of
proxies after the filing of an effective Schedule 14A by such stockholder or
Stockholder Associated Person under Section 14(a) of the Exchange Act.
Section 14. Voting by Ballot. Voting on any question or in any election may be
viva voce unless the chairman of the meeting shall order or any stockholder
shall demand that voting be by ballot.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors.
Section 2. Number and Tenure. The number of Directors shall be not less than
the minimum number required by the Maryland General Corporation Law (the
"MGCL"). Subject to the minimum number of Directors described in the
immediately preceding sentence, the number of Directors of the Corporation
shall be fixed only by a vote of the Board of Directors.
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Section 3. Qualifications. Directors need not be stockholders. Each Director
shall hold office until the earlier of: (a) the expiration of his term and his
or her successor shall have been elected and qualifies, (b) his or her death,
(c) his or her resignation, or (d) his or her removal. To be eligible for
nomination as a Director a person must, at the time of such person's
nomination, (a) have Relevant Experience and Country Knowledge (as defined
below), (b) not have any Conflict of Interest (as defined below) and (c) not be
over 75 years of age, unless the Nominating and Governance Committee of the
Board of Directors determines to except such person from that clause based on
its determination that such person's continued service on the Board of
Directors would be in the best interests of the Corporation, giving
consideration to, among other things, the person's leadership role(s) on the
Board. Whether a proposed nominee satisfies the foregoing qualifications shall
be determined by the Nominating and Governance Committee or, in the absence of
such a Committee, by the Board of Directors, each in its sole discretion.
For purposes of the following definitions of Relevant Experience and Country
Knowledge and Conflict of Interest, the term "Specified Country" means any one
or more of the following countries: Czech Republic, Hungary, Germany, Poland or
Russia.
"Relevant Experience and Country Knowledge" means experience in business,
investment, economic or political matters of a Specified Country or the United
States, through service for five of the past 25 years (except where a shorter
period is noted) in one or more of the following occupations:
(1)senior executive officer or partner of a financial or industrial
business headquartered in a Specified Country or other European country
and that has annual revenues of at least the equivalent of US
$250 million or total assets of at least the equivalent of US
$25 billion,
(2)senior executive officer or partner of a financial or industrial
business headquartered in the United States that has annual revenues of
at least the equivalent of US $250 million and whose management
responsibilities include supervision of business operations in a
Specified Country or other European country,
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(3)director (or the equivalent) for one of the past 10 years of one or more
investment businesses or vehicles (including this Corporation) a
principal focus of which is investment in one or more Specified
Countries or other European countries and that have at least the
equivalent of US $25 million in combined total assets of their own,
(4)senior executive officer, partner or member of the board of directors
(or equivalent, such as member of a supervisory board) of an investment
management business having at least the equivalent of US $250 million of
assets under discretionary management for others, such assets to consist
of either: (A) securities of companies in one or more Specified
Countries or other European countries or securities principally traded
on one of the 10 largest securities exchanges in Europe (measured by
market capitalization); or (B) at least $10 million of securities of
companies in one or more Specified Countries or other European countries
or securities principally traded on one of the 10 largest securities
exchanges in Europe (measured by market capitalization), and at least
$240 million of securities of companies in the United States or
securities principally traded in the United States,
(5)senior executive officer or partner of a business consulting, accounting
or law firm having at least 100 professionals and whose principal
responsibility involves or involved providing services involving matters
relating to a Specified Country or other European country for financial
or industrial businesses, investment businesses or vehicles or
investment management businesses as described in (1)--(4) above,
(6)senior official (including ambassador or minister) (i) in the national
government, a government agency or the central bank of a Specified
Country, another European country or the United States, (ii) in a major
supranational agency or organization of which a Specified Country,
another European country or the United States is a member, or (iii) in a
leading international trade organization relating to a Specified
Country, another European country or the United States, in each case in
the area of finance, economics, trade or foreign relations, or
(7)current director, senior officer or person holding a comparably senior
position (without regard to years of service) of an investment manager
or adviser of the Corporation, or of any entity controlling or under
common control with an investment manager or adviser of the Corporation
(including, for greater certainty, any employee of such investment
manager or adviser or entity from time to time serving as the chief
executive officer of the Corporation).
For purposes of clauses (1)-(5) of the preceding sentence and clauses (1)-(2)
of the next paragraph, the term "financial or industrial business" includes a
financial or industrial business unit within a larger enterprise; the term
"investment businesses or vehicles" includes an investment business unit or
investment vehicle within a larger enterprise; the term "investment management
business" includes an investment management business unit within a larger
enterprise; and the term "investment vehicle" includes an investment vehicle
within a larger enterprise; but in each case only to the extent the unit
satisfies the revenue, asset and other requirements specified for the business
or vehicle in clauses (1)-(5) of the preceding sentence or clauses (1)-(2) of
the next paragraph.
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"Conflict of Interest" means the presence of a conflict with the interests
of the Corporation or its operations through any of the following:
(1)current position (a) as a director, officer, partner or employee of
another investment vehicle a significant (i.e., 25% or more of total
assets) focus of which is securities of companies in one or more
Specified Countries or other European countries or securities
principally traded in markets of one or more Specified Countries or
other European countries and that does not have the same investment
adviser as the Corporation or an investment adviser affiliated with an
investment adviser of the Corporation, and (b) having direct and regular
responsibilities relating to that investment vehicle,
(2)current position as (a) a director, officer, partner or employee of the
sponsor (or equivalent) of an investment vehicle described in the
previous point and (b) having direct and regular responsibilities
relating to that investment vehicle, or
(3)current position as an official of a governmental agency or
self-regulatory body having responsibility for regulating the
Corporation or the markets in which it proposes to invest.
Section 4. Vacancies. Subject to the provisions of the Investment Company Act,
each vacancy on the Board of Directors of the Corporation may be filled only by
the affirmative vote of a majority of the remaining Directors in office, even
if the remaining Directors do not constitute a quorum. 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.
Section 5. Place of Meeting. The Directors may hold their meetings, have one or
more offices, and keep the books of the Corporation at any office or offices of
the Corporation or at any other place as they may from time to time by
resolution determine, or in the case of meetings, as they may from time to time
by resolution determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
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Section 6. Annual and Regular Meetings. The annual meeting of the Board of
Directors shall be held as soon as practicable after the annual meeting of the
stockholders. The Board of Directors may provide, by resolution, the time and
place, either within or without the State of Maryland, for the holding of
regular meetings of the Board of Directors without other notice than such
resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the Chief Executive Officer, the
President, the Secretary or two or more Directors who are then appointed to the
Executive Committee. The person or persons authorized to call special meetings
of the Board of Directors may fix any place as the place for holding any
special meeting of the Board of Directors called by them.
Section 8. Notice. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, facsimile transmission, United
States mail or courier to each Director at his business or residence address
and may also be provided by electronic mail. Notice by personal delivery, by
telephone, electronic mail or a facsimile transmission shall be given at least
two days prior to the meeting. Notice by mail shall be given at least five days
prior to the meeting and shall be deemed to be given when deposited in the
United States mail properly addressed, with postage thereon prepaid. Telephone
notice shall be deemed to be given when the Director is personally given such
notice in a telephone call to which he or she is a party. Electronic mail
notice shall be deemed to be given upon transmission of the message to the
electronic mail address given to the Corporation by the Director. Facsimile
transmission notice shall be deemed to be given upon completion of the
transmission of the message to the number given to the Corporation by the
Director and receipt of a completed answer-back indicating receipt. Neither the
business to be transacted at, nor the purpose of, any annual, regular or
special meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these Bylaws.
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Section 9. Quorum and Voting. A majority of the Board of Directors then in
office shall constitute a quorum for the transaction of business, provided
that, if less than a majority of such Directors are present at said meeting, a
majority of the Directors present may adjourn the meeting from time to time
without further notice, and provided further that if, pursuant to the charter
of the Corporation or these Bylaws, the vote of a majority of a particular
group of Directors is required for action, a quorum must also include a
majority of such group. The action of the majority of the Directors present at
any 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 applicable statute.
Section 10. Telephone Meetings. Directors may participate in a meeting by means
of a conference telephone or similar communications equipment if all persons
participating in the meeting can hear each other at the same time; provided
that no such meeting by conference telephone or similar communications
equipment may be held for the purpose of voting to approve or continue any
investment advisory contract pursuant to Section 15 of the Investment Company
Act. Participation in a meeting by these means constitutes presence in person
at the meeting.
Section 11. Informal Action by the Board of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a consent to such action is given in writing or by
electronic transmission by each Director and such consent is subsequently filed
with the minutes of the proceedings of the Board or such committee; provided
that no such action by consent may be taken to approve or continue an
investment advisory contract pursuant to Section 15 of the Investment Company
Act.
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Section 12. Compensation of Directors. Directors shall be entitled to receive
such compensation from the Corporation for their services as may from time to
time be voted by the Board of Directors.
Section 13. Reliance. Each Director and officer of the Corporation shall, in
the performance of his or her duties with respect to the Corporation, be
entitled to rely on any information, opinion, report or statement, including
any financial statement or other financial data, prepared or presented by an
officer or employee of the Corporation whom the Director or officer reasonably
believes to be reliable and competent in the matters presented, by a lawyer,
certified public accountant or other person, as to a matter which the Director
or officer reasonably believes to be within the person's professional or expert
competence, or, with respect to a Director, by a committee of the Board of
Directors on which the Director does not serve, as to a matter within its
designated authority, if the Director reasonably believes the committee to
merit confidence.
Section 14. Emergency Provisions. Notwithstanding any other provision in the
Charter or these Bylaws, this Section 15 shall apply during the existence of
any catastrophe, or other similar emergency condition affecting the Company, as
a result of which a quorum of the Board of Directors under Article III of these
Bylaws cannot readily be obtained (an "Emergency"). During any Emergency,
unless otherwise provided by the Board of Directors, (i) a meeting of the Board
of Directors or a committee thereof may be called by any Director or officer by
any means feasible under the circumstances; (ii) notice of any meeting of the
Board of Directors during such an Emergency may be given less than 24 hours
prior to the meeting to as many Directors and by such means as may be feasible
at the time, including publication, television or radio; and (iii) the number
of Directors necessary to constitute a quorum shall be one-third of the entire
Board of Directors.
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ARTICLE IV
Committees
Section 1. Number, Tenure and Qualifications. The Board of Directors may
appoint from among its members an Audit Committee and other committees,
composed of one or more Directors, to serve at the pleasure of the Board of
Directors. The Board of Directors may appoint from among its members an
Executive Committee composed of two or more Directors, to serve at the pleasure
of the Board of Directors.
Section 2. Powers. The Board of Directors may delegate to committees appointed
under Section 1 of this Article any of the powers of the Board of Directors,
except as prohibited by law.
Section 3. Meetings. Notice of committee meetings shall be given in the same
manner as notice for special meetings of the Board of Directors. A majority of
the members of the committee shall constitute a quorum for the transaction of
business at any meeting of the committee. The act of a majority of the
committee members present at a meeting shall be the act of such committee. The
Board of Directors may designate a chairman of any committee, and such chairman
or any two members of any committee (if there are at least two members of the
committee) may fix the time and place of its meeting unless the Board shall
otherwise provide. In the absence of any member of any such committee, the
members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another Director to act in the place of such absent member.
Each committee shall keep minutes of its proceedings.
Section 4. Telephone Meetings. Members of a committee of the Board of Directors
may participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time; provided that no such meeting by conference
telephone or similar communications equipment may be held for the purpose of
voting to approve or continue any investment advisory contract pursuant to
Section 15 of the Investment Company Act. Participation in a meeting by these
means constitutes presence in person at the meeting.
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Section 5. Informal Action by Committees. Any action required or permitted to
be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a consent to such action is given in writing or by
electronic transmission by each member of the committee and such consent is
subsequently filed with the minutes of proceedings of such committee; provided
that no such action by written consent may be taken to approve or continue an
investment advisory contract pursuant to Section 15 of the Investment Company
Act.
Section 6. Vacancies. Subject to the provisions hereof, the Board of Directors
shall have the power at any time to change the membership of any committee, to
fill all vacancies, to designate alternate members to replace any absent or
disqualified member or to dissolve any such committee.
ARTICLE V
Officers
Section 1. General Provisions. The officers of the Corporation shall include a
Chief Executive Officer, a President, a Secretary and a Treasurer and may
include a Chairman of the Board, a Vice Chairman of the Board, one or more Vice
Presidents, a Chief Operating Officer, a Chief Financial Officer, one or more
Assistant Secretaries and one or more Assistant Treasurers. In addition, the
Board of Directors may from time to time appoint such other officers with such
powers and duties as they shall deem necessary or desirable. The officers of
the Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of
stockholders, except that the Chief Executive Officer may appoint one or more
Vice Presidents, Assistant Secretaries and Assistant Treasurers. If the
election of officers shall not be held at such meeting, such
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election shall be held as soon thereafter as may be convenient. Each officer
shall hold office until his or her successor is elected and qualifies or until
his or her death, resignation or removal in the manner hereinafter provided.
Any two or more offices except President and Vice President may be held by the
same person. In its discretion, the Board of Directors may leave unfilled any
office except that of President, Treasurer and Secretary. Election of an
officer or agent shall not of itself create contract rights between the
Corporation and such officer or agent.
Section 2. Removal and Resignation. Any officer or agent of the Corporation may
be removed by the Board of Directors if in its judgment the best interests of
the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Any officer
of the Corporation may resign at any time by giving written notice of his or
her resignation to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall become
effective is not specified therein, immediately upon its receipt. The
acceptance of a resignation shall not be necessary to make it effective unless
otherwise stated in the resignation. Such resignation shall be without
prejudice to the contract rights, if any, of the Corporation.
Section 3. Vacancies. A vacancy in any office may be filled by the Board of
Directors for the balance of the term.
Section 4. Chairman of the Board. The Board of Directors shall designate from
among its members a Chairman of the Board. The Chairman of the Board shall
preside over the meetings of the Board of Directors and of the stockholders at
which he or she shall be present. The Chairman of the Board shall perform such
other duties as may be assigned to him or her by the Board of Directors.
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Section 5. Chief Executive Officer. The Board of Directors may designate a
Chief Executive Officer. In the absence of such designation, the Chairman of
the Board shall be the Chief Executive Officer of the Corporation. The Chief
Executive Officer shall have general responsibility for implementation of the
policies of the Corporation, as determined by the Board of Directors, and for
the management of the business and affairs of the Corporation. He or she may
execute any deed, mortgage, bond, contract or other instrument, except in cases
where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed.
Section 6. President. The President shall have the responsibilities and duties
as set forth by the Board of Directors or, in the event that the offices of
Chief Executive Officer and President are not held by the same person, the
Chief Executive Officer.
Section 7. Chief Operating Officer. The Board of Directors may designate a
Chief Operating Officer. The Chief Operating Officer shall have the
responsibilities and duties as set forth by the Board of Directors or the Chief
Executive Officer.
Section 8. Chief Financial Officer. The Board of Directors may designate a
Chief Financial Officer. The Chief Financial Officer shall have the
responsibilities and duties as set forth by the Board of Directors or the Chief
Executive Officer.
Section 9. Vice Presidents. In the absence of the Chief Executive Officer and
the President or in the event of a vacancy in such office, the Vice President
(or in the event there be more than one Vice President, the Vice Presidents in
the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of
the Chief Executive Officer and the President and when so acting shall have all
the powers of and be subject to all the restrictions upon the Chief Executive
Officer and the President; and shall perform such other duties as from time to
time may be assigned to him by the President or by the Board of Directors. The
Board of Directors or the Chief Executive Officer may designate one or more
Vice Presidents as executive Vice President or as Vice President for particular
areas of responsibility.
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Section 10. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal
of the Corporation; (d) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder;
(e) have general charge of the share transfer books of the Corporation; and
(f) in general perform such other duties as from time to time may be assigned
to him by the Chief Executive Officer, the President or by the Board of
Directors.
Section 11. Treasurer. The Treasurer shall have the custody of the funds and
securities of the Corporation and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and Board of Directors, at the regular meetings
of the Board of Directors or whenever it may so require, an account of all his
or her transactions as Treasurer and of the financial condition of the
Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, moneys and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation.
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Section 12. Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or Treasurer, respectively, or by
the Chief Executive Officer or the Board of Directors. The Assistant Treasurers
shall, if required by the Board of Directors, give bonds for the faithful
performance of their duties in such sums and with such surety or sureties as
shall be satisfactory to the Board of Directors.
Section 13. Salaries. The salaries and other compensation of the officers shall
be fixed from time to time by the Board of Directors and no officer shall be
prevented from receiving such salary or other compensation by reason of the
fact that he or she is also a Director.
ARTICLE VI
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize any officer or agent
to enter into any contract or to execute and deliver any instrument in the name
of and on behalf of the Corporation and such authority may be general or
confined to specific instances. Any agreement, deed, mortgage, lease or other
document executed by one or more of the Directors or by an authorized person
shall be valid and binding upon the Board of Directors and upon the Corporation
when authorized or ratified by action of the Board of Directors.
Section 2. Checks and Drafts. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or agent of the Corporation
in such manner as shall from time to time be determined by the Board of
Directors.
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Section 3. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may designate.
ARTICLE VII
Stock
Section 1. Certificates; Required Information. The Board of Directors may
authorize the Corporation to issue some or all of the shares of any class of
its stock without certificates. In the event that the Corporation issues shares
of stock represented by certificates, such certificates shall be in such form
as prescribed by the Board of Directors or a duly authorized officer, shall
contain the statements and information required by the MGCL and shall be signed
by the officers of the Corporation in the manner permitted by the MGCL. In the
event that the Corporation issues shares of stock without certificates, to the
extent then required by the MGCL, the Corporation shall provide to record
holders of such shares a written statement of the information required by the
MGCL to be included on stock certificates. There shall be no differences in the
rights and obligations of stockholders based on whether or not their shares are
represented by certificates. If shares of a class of stock are authorized by
the Board of Directors to be issued without certificates, no stockholder shall
be entitled to a certificate or certificates representing any shares of such
class of stock held by such stockholder unless otherwise determined by the
Board of Directors and then only upon written request by such stockholder to
the Secretary of the Corporation.
Section 2. Transfers. All transfers of shares of stock shall be made on the
books of the Corporation, by the holder of the shares, in person or by his, her
or its attorney, in such manner as the Board of Directors or any officer of the
Corporation may prescribe and, if such shares are certificated, upon surrender
of certificates duly endorsed. The issuance of a new certificate upon the
transfer of certificated shares is subject to the determination of the Board of
Directors that such shares shall no longer be represented by certificates. Upon
the transfer of any uncertificated shares, to the extent then required by the
MGCL, the Corporation shall provide to the record holders of such shares a
written statement of the information required by the MGCL to be included on
stock certificates.
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The Corporation shall be entitled to treat the holder of record of any share
of stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise expressly provided by the laws of the State of
Maryland. Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the Charter and all of the terms and
conditions contained therein.
Section 3. Replacement Certificate. Any officer of the Corporation may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
destroyed, stolen or mutilated, upon the making of an affidavit of that fact by
the person claiming the certificate to be lost, destroyed, stolen or mutilated;
provided, however, if such shares have ceased to be certificated, no new
certificate shall be issued unless requested in writing by such stockholder and
the Board of Directors has determined that such certificates may be issued.
Unless otherwise determined by an officer of the Corporation, the owner of such
lost, destroyed, stolen or mutilated certificate or certificates, or his or her
legal representative, shall be required, as a condition precedent to the
issuance of a new certificate or certificates, to give the Corporation a bond
in such sums as it may direct as indemnity against any claim that may be made
against the Corporation.
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Section 4. Fixing of Record Date. Subject to Article II, Section 3(b) of these
Bylaws, in advance, a record date may be set, for the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
by the Chief Executive Officer, the President or the Board of Directors,
whoever shall have called the meeting. The Board of Directors may set, in
advance, the record date for determining stockholders entitled to receive
payment of any dividend or the allotment of any other rights, or in order to
make a determination of stockholders for any other proper purpose. Such date,
in any case, shall not be prior to the close of business on the day the record
date is fixed and shall be not more than 90 days and, in the case of a meeting
of stockholders, not less than ten days, before the date on which the meeting
or particular action requiring such determination of stockholders of record is
to be held or taken. When a record date for the determination of stockholders
entitled to notice of and to vote at any meeting of stockholders has been set
as provided in this section, such record date shall continue to apply to the
meeting if adjourned or postponed, except if the meeting is adjourned or
postponed to a date more than 120 days after the record date originally fixed
for the meeting, in which case a new record date for such meeting may be
determined as set forth herein.
Section 5. Stock Ledger. The Corporation shall maintain at its principal office
or at the office of its transfer agent, an original or duplicate stock ledger
containing the name and address of each stockholder and the number of shares of
each class held by such stockholder.
Section 6. Fractional Stock. The Board of Directors may authorize the
Corporation to issue fractional stock on such terms and under such conditions
as it may determine.
ARTICLE VIII
Corporate Seal
Section 1. In General. The Board of Directors may provide for a suitable
corporate seal, in such form and bearing such inscriptions as it may determine.
Section 2. Affixing Seal. Whenever the Corporation is permitted or required to
affix its seal to a document, it shall be sufficient to meet the requirements
of any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Corporation.
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ARTICLE IX
Fiscal Year
The Board of Directors shall have the power, from time to time, to fix the
fiscal year of the Corporation by a duly adopted resolution.
ARTICLE X
Distributions
Section 1. Authorization. Dividends and other distributions upon the stock of
the Corporation may be authorized by the Board of Directors, subject to the
provisions of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the Corporation,
subject to the provisions of law and the charter.
Section 2. Contingencies. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
available for dividends or other distributions such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends or other
distributions, for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors shall determine to be in the
best interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
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ARTICLE XI
Waiver of Notice
Whenever any notice of a meeting is required to be given pursuant to the
charter of the Corporation or these Bylaws or pursuant to applicable law, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at nor the purpose of any meeting need be set forth in the waiver of notice,
unless specifically required by statute. The attendance of any person at any
meeting shall constitute a waiver of notice of such meeting, except where such
person attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE XII
Indemnification
The Corporation shall indemnify to the fullest extent permitted by law
(including the Investment Company Act) as currently in effect or as the same
may hereafter be amended, any person made or threatened to be made a party to,
or witness in, any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person or such
person's testator or intestate is or was a Director or officer of the
Corporation or serves or served at the request of the Corporation any other
enterprise as a Director or officer. To the fullest extent permitted by law
(including the Investment Company Act) as currently in effect or as the same
may hereafter be amended, expenses incurred by any such person in defending any
such action, suit or proceeding shall be paid or reimbursed by the Corporation
promptly upon receipt by it of an undertaking of such person to repay such
expenses if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation. The rights provided to any person by this
Article XII shall be enforceable against the Corporation by such person who
shall be presumed to have relied upon it in serving or continuing to serve as a
Director or officer as provided above. No amendment of this Article XII shall
impair the rights of any person arising at any time with respect to events
occurring prior to such amendment. For purposes of this Article XII, the
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term "Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed
by the Corporation in a consolidation or merger; the term "other enterprise"
shall include any corporation, partnership, joint venture, trust or employee
benefit plan; service "at the request of the Corporation" shall include service
as a Director or officer of the Corporation which imposes duties on, or
involves services by, such Director or officer with respect to an employee
benefit plan, its participants or beneficiaries; any excise taxes assessed on a
person with respect to an employee benefit plan shall be deemed to be
indemnifiable expenses; and action by a person with respect to any employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
ARTICLE XIII
Custodian
Section 1. In General. The Corporation shall have as custodian or custodians
(including any sub-custodian) one or more trust companies or banks of good
standing which shall conform to the requirements of Section 17(f) of the
Investment Company Act and the rules promulgated thereunder. To the extent
required by the Investment Company Act and the rules promulgated thereunder,
the funds and securities held by the Corporation shall be kept in the custody
of one or more such custodians (and any sub-custodian), provided such custodian
or custodians (and any sub-custodian) can be found ready and willing to act.
Section 2. Resignation, Change or Inability to Serve. The Corporation shall
upon the resignation, change or inability to serve of its custodian (and any
sub-custodian):
(i) in case of such resignation or inability to serve, use its best efforts to
obtain a successor custodian;
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(ii) require that the cash and securities owned by the Corporation be delivered
directly to the successor custodian; and
(iii) in the event that no successor custodian can be found, submit to the
stockholders before permitting delivery of the cash and securities owned by the
Corporation otherwise than to a successor custodian, the question whether or
not this Corporation shall be liquidated or shall function without a custodian.
ARTICLE XIV
Exclusive Forum for Certain Litigation
Unless the Corporation consents in writing to the selection of an
alternative forum, the Circuit Court for Baltimore City, Maryland, or, if that
Court does not have jurisdiction, the United States District Court for the
District of Maryland, Baltimore Division, shall be the sole and exclusive forum
for (a) any derivative action or proceeding brought on behalf of the
Corporation, (b) any action asserting a claim of breach of any duty owed by any
Director or officer or other employee of the Corporation to the Corporation or
to the stockholders of the Corporation, (c) any action asserting a claim
against the Corporation or any Director or officer or other employee of the
Corporation arising pursuant to any provision of the MGCL or the charter or
Bylaws of the Corporation, or (d) any action asserting a claim against the
Corporation or any Director or officer or other employee of the Corporation
that is governed by the internal affairs doctrine.
ARTICLE XV
Amendment of Bylaws
The Bylaws of the Corporation may be altered, amended, added to or repealed
by a majority vote of the entire Board of Directors; the power to alter, amend,
add to or repeal the Bylaws is vested exclusively in the Board of Directors.
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