0001236835-12-000411.txt : 20120829
0001236835-12-000411.hdr.sgml : 20120829
20120829151756
ACCESSION NUMBER: 0001236835-12-000411
CONFORMED SUBMISSION TYPE: NSAR-A
PUBLIC DOCUMENT COUNT: 3
CONFORMED PERIOD OF REPORT: 20120630
FILED AS OF DATE: 20120829
DATE AS OF CHANGE: 20120829
EFFECTIVENESS DATE: 20120829
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: Morgan Stanley China A Share Fund, Inc.
CENTRAL INDEX KEY: 0001368493
IRS NUMBER: 000000000
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: NSAR-A
SEC ACT: 1940 Act
SEC FILE NUMBER: 811-21926
FILM NUMBER: 121062975
BUSINESS ADDRESS:
STREET 1: 522 FIFTH AVENUE
CITY: NEW YORK
STATE: NY
ZIP: 10036
BUSINESS PHONE: 212-296-6963
MAIL ADDRESS:
STREET 1: 522 FIFTH AVENUE
CITY: NEW YORK
STATE: NY
ZIP: 10036
NSAR-A
1
answer.fil
MS CHINA A SHARE FUND ANSWER FILE
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SIGNATURE STEVE FORRESTER
TITLE MANAGER
EX-99.77Q2 ITEM 405
2
CETAAgreement.AmendmentTwo.txt
MS CHINA A SHARE FUND TA AGREEMENT
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
MORGAN STANLEY CLOSED END FUNDS
AND
COMPUTERSHARE TRUST COMPANY, N.A.
AND
COMPUTERSHARE SHAREHOLDER SERVICES, INC.
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Agent 1
2.1 Appointments 1
2.2 Documents 2
2.3 Records 2
2.4 Shares 2
2.5 Customer's Agent 3
2.6 Certificates 3
Section 3. Standard Services 3
3.1 Certificate Replacement 3
3.2 Customary Services 3
3.3 Compliance with Laws 3
3.4 Unclaimed Property and Lost Shareholders 3
3.5 Compliance with Office of Foreign Asset Control
("OFAC") Regulation 4
Section 4. Dividend Disbursing and Dividend Reinvestment
Plan Services 4
4.1 Declaration of Dividends 4
4.2 Stop Payments 4
4.3 Tax Withholding 4
4.4 Dividend Reinvestment 4
Section 5. Optional Services and Standards 4
5.1 Optional Services 4
5.2 Shareholder Internet Services 5
Section 6. Fees and Expenses 5
6.1 Fee and Service Schedules 5
6.2 Out-of-Pocket Expenses 5
6.3 Conversion Funds 5
6.4 Invoices 5
6.5 Late Payments 5
6.6 Overtime Charges 6
6.7 Bank Accounts 6
Section 7. Representations and Warranties of Transfer Agent 6
7.1 Governance 6
7.2 Compliance 6
Section 8. Computer Services 6
i
TABLE OF CONTENTS
(continued)
Page
8.1 Transfer Agent 6
8.2 Procedures for Access 7
8.3 Proprietary Information 7
8.4 Content 7
8.5 Transactions 8
Section 9. Representations and Warranties of Customer 8
9.1 Organizations 8
9.2 Governance 8
9.3 Securities Act of 1933 8
Section 10. Indemnification/Limitation of Liability 8
10.1 Standard of Care 8
10.2 Customer Indemnity 8
10.3 Instructions 9
10.4 Transfer Agent Indemnification/Limitation of Liability 9
10.5 Notice 9
Section 11. Damages 10
Section 12. Responsibilities of the Transfer Agent 10
Section 13. Covenants of the Customer and Transfer Agent 10
13.1 Notification 10
13.2 Records 10
Section 14. Confidentiality 10
14.1 Covenant 10
14.2 Request for Records 11
Section 15. Term and Termination 11
15.1 Term 11
15.2 Early Termination 11
15.3 Expiration of Term 11
15.4 Termination 11
15.5 Records 12
15.6 Privacy Act Information Definition 12
Section 16. Assignment 12
16.1 Consent 12
16.2 Affiliates 12
16.3 Sub-contractors 13
ii
TABLE OF CONTENTS
(continued)
Page
Section 17. Unaffiliated Third Parties. 13
Section 18. Miscellaneous. 13
18.1 Notices 13
18.2 Successors 13
18.3 Amendments 13
18.4 Severability 13
18.5 Governing Law 14
18.6 Force Majeure 14
18.7 Third Party Beneficiaries 14
18.8 Survival 14
18.9 Priorities 14
18.10 Merger of Agreement 14
18.11 Counterparts 14
iii
AGREEMENT made as of the 26th day of September 2006,
by and among certain Morgan Stanley Closed End Funds as set forth in
Appendix A, as may be amended from time to time to add and delete
funds, having their principal office and place of business at Harborside
Financial Center, Plaza II, Jersey City, NJ07311 (collectively, the
"Customers", or individually, the "Customer"), and Computershare
Trust Company, N.A. and Computershare Shareholder
Services, Inc.(collectively, the "Transfer Agent").
WHEREAS, the Customer desires to appoint the Transfer
Agent as sole transfer agent, registrar and administrator of its dividend
reinvestment plan or direct stock purchase plan, and CSS as dividend
disbursing agent and processor of all payments received or made by
Customer under this Agreement.
WHEREAS, the Trust Company and CSS desire to accept
such respective appointments and perform the services related to such
appointments;
NOW THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
Section 1. Certain Definitions.
(a) "Account" or "Accounts" shall mean the
account of each Shareholder which account shall hold any full or
fractional shares of stock held by such Shareholder and/or outstanding
funds or tax reporting to be done.
(b) "Agreement" shall mean this agreement and
any and all exhibits or schedules attached hereto and any and all
amendments or modifications, which may from time to time be
executed.
(c) "Closed Account" shall mean an account
with a zero share balance, no outstanding funds or no reportable tax
information.
(d) "Share" shall mean Customer's common
stock, par value $0.01 per share and Customer's preferred stock, par
value per share authorized by the Customer's Articles of Incorporation,
and other classes of Customer's stock to be designated by the Customer
in writing and for which the Transfer Agent agrees to service under this
Agreement.
(e) "Shareholder" shall mean the holder of record of Shares.
(f) "Shareholder Data" shall mean all Shareholder, Customer and
proxy information maintained on the records database of the Transfer Agent.
(g) "Shareholder Internet Services" shall have the meaning set forth
in Section 5.2.
(h) "Dividend Reinvestment Plan" and "Direct
Stock Purchase Plan" shall mean the services as set forth in Section 4
and in the Fee and Service Schedule.
Section 2. Appointment of Agent.
2.1 Appointments. The Customer hereby appoints the
Transfer Agent to act as sole transfer agent and registrar for all Shares
in accordance with the terms and conditions hereof and as administrator
of Plans and appoints CSS as dividend disbursing agent and processor
of all payments received or made by or on behalf of the Customer
under this Agreement, and the Transfer Agent and CSS accept the
appointments. Customer has provided or shall provide Transfer Agent
with certified copies of resolutions dated the date hereof appointing the
Trust Company as Transfer Agent.
2.2 Documents. In connection with the appointing of
Transfer Agent as the transfer agent and registrar for the Customer, the
Customer has provided or will provide the attached appointment
documents to the Transfer Agent, and Customer corporate authority
documents.
(a) Copies of Registration Statements and
amendments thereto, filed with the Securities and Exchange
Commission for initial public offerings;
(b) Specimens of all forms of outstanding stock
certificates, in forms approved by the Board of Directors of the
Customer, with a certificate of the Secretary of the Customer as to such
approval;
(c) Specimens of the Signatures of the officers
of the Customer authorized to sign stock certificates and individuals
authorized to sign written instructions and requests; and
(d) An opinion of counsel for the Customer
addressed to both the Trust Company and CSS with respect to:
(i) The Customer's organization and
existence under the laws of its state of organization;
(ii) The status of all Shares of the Customer covered by the appointment
under the Securities Act of 1933, as amended, and any other applicable
federal or state statute; and
(iii) That all issued Shares are, and all unissued Shares will be, when
issued, validly issued, fully paid and non-assessable.
(e) A copy of the Articles of Incorporation and By-Laws of the Customer;
(f) Copies of all material amendments to its
Articles of Incorporation or By-Laws made after the date of this
Agreement, promptly after such amendments are made; and
(g) A certificate of the Customer as to the
Shares authorized, issued and outstanding, as well as a description of
all reserves of unissued Shares relating to the exercise of options.
2.3 Records. Transfer Agent may adopt as part of its
records all lists of holders, records of Customer's stock, books,
documents and records which have been employed by any former agent
of Customer for the maintenance of the ledgers for such shares,
provided such ledger is certified by an officer of Customer or the prior
transfer agent to be true, authentic and complete. The Transfer Agent
shall keep records relating to the services to be performed hereunder, in
the form and manner as it may deem advisable. The Transfer Agent
agrees that all such records prepared or maintained by it relating to the
services performed hereunder are the property of the Customer and will
be preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the Customer
on and in accordance with its request.
2.4 Shares. Customer shall, if applicable, inform
Transfer Agent as to (i) the existence or termination of any restrictions
on the transfer of Shares and in the application to or removal from any
certificate of stock of any legend restricting the transfer of such Shares
or the substitution for such certificate of a certificate without such
legend, (ii) any authorized but unissued Shares reserved for specific
purposes, (iii) any outstanding Shares which are exchangeable for Shares
and the basis for exchange, (iv) reserved Shares subject to
option and the details of such reservation and (v) special instructions
regarding dividends and information of foreign holders.
2
2.5 Customer's Agent. Transfer Agent represents that it
is engaged in an independent business and will perform its obligations
under this Agreement as an agent of Customer.
2.6 Certificates. Customer shall deliver to Transfer
Agent an appropriate supply of stock certificates, which certificates
shall provide a signature panel for use by an officer of or authorized
signor for Transfer Agent to sign as transfer agent and registrar, and
which shall state that such certificates are only valid after being
countersigned and registered.
Section 3. Standard Services.
3.1 Certificate Replacement. The Transfer Agent will
perform the following services:
(a) issue and record the appropriate number of
Shares as authorized and hold such Shares in the appropriate
Shareholder account;
(b) effect transfers of Shares by the registered
owners thereof upon receipt of appropriate documentation;
(c) act as agent for Shareholders pursuant to the
Dividend Reinvestment Plan and other investment programs as
amended from time to time in accordance with the terms of the
agreements relating thereto to which the Transfer Agent is or will be a
party; and
(d) The Transfer Agent will issue replacement
certificates for those certificates alleged to have been lost stolen or
destroyed upon receipt by the Transfer Agent of an open penalty surety
bond satisfactory to it and holding it and the Customer harmless, absent
notice to the Customer and the Transfer Agent that such certificates
have been acquired by a bona fide purchaser. The Transfer Agent, at
its option, may issue replacement certificates in place of mutilated
stock certificates upon presentation thereof without such indemnity.
Further, the Transfer Agent may at its sole option accept
indemnification from a Customer to issue replacement certificates for
those certificates alleged to have been lost, stolen or destroyed in lieu
of an open penalty bond.
3.2 Customary Services. The Transfer Agent shall
perform all the customary services of a transfer agent, dividend
disbursing agent, agent of dividend reinvestment plan, cash purchase
plan and other investment programs as described in Section 3.1
consistent with those requirements in effect as of the date of this
Agreement and in compliance with applicable laws as set forth in
Section 3.3; provided, however, the Transfer Agent shall not be
required to take shareholder telephone calls or respond to written
shareholder inquiries. All such shareholder inquiries in writing or by
telephone shall be handled by Customer. Any correspondence or
telephone inquiries from shareholders received by the Transfer Agent
will be forwarded to Customers. The detailed services and definition,
frequency, limitations and associated costs (if any) are set out in the
attached fee and service schedule ("Fee and Service Schedule").
3.3 Compliance with Laws. The Trust Company and
CSS are obligated to and agree to comply with all applicable federal,
state and local laws and regulations, codes, order and government
rules in the performance of their duties under this Agreement.
3.4 Unclaimed Property and Lost Shareholders. The
Transfer Agent shall report unclaimed property to each state in
compliance with state law and Section 17Ad-17 of the Exchange Act of
1934 as amended (the "Exchange Act") for lost shareholders. If the Customers
are not in compliance with applicable state laws, there will be no
charge for the first two years for this service; provided that after the
first two years, the Transfer Agent will charge Customers its then
standard fee plus any out-of-pocket expenses.
3
3.5 Compliance with Office of Foreign Asset Control
("OFAC") Regulation. The Transfer Agent shall ensure compliance
with OFAC laws.
Section 4. Dividend Disbursing and Dividend Reinvestment
Plan Services.
4.1 Declaration of Dividends. Upon receipt of a written
notice from the President, any Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer of Customer declaring the
payment of a dividend, CSS shall disburse such dividend payments
provided that in advance of such payment, Customer furnishes CSS
with sufficient funds. The payment of such funds to CSS for the
purpose of being available for the payment of dividend checks from
time to time is not intended by Customer to confer any rights in such
funds on Customer's Shareholders whether in trust or in contract or
otherwise.
4.2 Stop Payments. Customer hereby authorizes CSS to
stop payment of checks issued in payment of dividends, but not
presented for payment, when the payees thereof allege either that they
have not received the checks or that such checks have been mislaid,
lost, stolen, destroyed or, through no fault of theirs, are otherwise
beyond their control and cannot be produced by them for presentation
and collection, and CSS shall issue and deliver duplicate checks in
replacement thereof, and Customer shall indemnify Transfer Agent
against any loss or damage resulting from reissuance of the checks.
4.3 Tax Withholding. CSS is hereby authorized to
deduct from all dividends declared by Customer and disbursed by CSS,
as dividend disbursing agent, the tax required to be withheld pursuant
to Sections 1441, 1442 and 3406 of the Internal Revenue Code of 1986,
as amended, or by any Federal or State statutes subsequently enacted,
and to make the necessary return and payment of such tax in
connection therewith.
4.4 Dividend Reinvestment. Receive all payments made
to the Customer or the Transfer Agent under the Dividend
Reinvestment Plan and make all payments required to be made under
such plans, including all payments required to be made to the
Customer.
Section 5. Optional Services and Standards.
5.1 Optional Services. To the extent that a Customer
elects to engage the Transfer Agent to provide the services listed below
the Customers shall engage the transfer Agent to provide such services
upon terms and fees to be agreed upon by the parties:
(a) Employee Plan Services;
(b) Employee Stock Purchase Plan Programs;
and
(c) Corporate actions (including inter alia, odd
lot buy backs, exchanges, mergers, redemptions, subscriptions, capital
reorganization, coordination of post-merger services and special
meetings.
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In the event that the Customer Vendor provides the above services, the
Customer shall pay the Transfer Agent its standard fees and expenses
charged by the Transfer Agent for services rendered to support the
above services rendered by the Customer Vendor for the benefit of the
Customer.
5.2 Shareholder Internet Services. The Transfer Agent
shall provide internet access to Customer's Shareholders through
Transfer Agent's web site,Computershare.com ("Shareholder Internet
Services"), pursuant to its established procedures ("Security
Procedures") and fees, to allow Shareholders to view their account
information and perform certain on-line transaction request capabilities.
The Shareholder Internet Services are provided "as is," on an "as
available" basis, and Transfer Agent hereby specifically disclaims any
and all representations or warranties, express or implied, regarding such
services provided by Transfer Agent hereunder, including any implied
warranty of merchantability or fitness for a particular purpose and
implied warranties arising from course of dealing or course of
performance.
Section 6. Fees and Expenses.
6.1 Fee and Service Schedules. Customer agrees to pay
Transfer Agent the fees for Services performed pursuant to this
Agreement as set forth in the Fee and Service Schedule attached hereto,
for the initial term of the Agreement (the "Initial Term"). Sixty (60)
days before the expiration of the Initial Term or a Renewal Term, the
parties to this Agreement will agree upon a Fee Schedule for the
upcoming Renewal Term. If no new fee schedule is agreed upon, the
fees will increase as set forth in the Term Section of the Fee and
Service Schedule.
6.2 Out-of-Pocket Expenses. In addition to the fees paid
under Section 6.1 above, the Customer agrees to reimburse the Transfer
Agent for out-of-pocket expenses, including but not limited to postage,
Transfer Agent administrative costs, forms, telephone, microfilm,
microfiche, taxes, records storage, exchange and broker fees, or
advances incurred by the Transfer Agent for the items setout in the Fee
and Service Schedule attached hereto. In addition, any other expenses
incurred by the Transfer Agent at the request or with the consent of the
Customer, will be reimbursed by the Customer.
6.3 Conversion Funds. Conversion funding required by
any out of proof condition caused by a prior agents' services shall be
advanced to Transfer Agent prior to the commencement of services.
6.4 Invoices. The Customer agrees to pay all fees and
reimbursable expenses within 30 days of the date of the respective
billing notice, except for any fees or expenses that are subject to good
faith dispute. In the event of such a dispute, the Customer may only
withhold that portion of the fee or expense subject to the good faith
dispute. The Customer shall settle such disputed amounts within
five (5) business days of the day on which the parties agree on the
amount to be paid by payment of the agreed amount. If no agreement
is reached, then such disputed amounts shall be settled as may be
required by law or legal process.
6.5 Late Payments.
(a) If any undisputed amount in an invoice of
the Transfer Agent (for fees or reimbursable expenses) is not paid
within 30 days after receipt of such invoice, the Customer shall pay the
Transfer Agent interest thereon (from the due date to the date of
payment) at a per annum rate equal to one percent (1.0%) plus the
Prime Rate (that is, the base rate on corporate loans posted by large
domestic Transfer Agent) published by the New York edition of The
Wall Street Journal (or, in the event such rate is not so published, a
reasonably equivalent published rate selected by Customer on the first
day of publication during the month when such amount was due.
Notwithstanding any other provision hereof,
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such interest rate shall be no greater than the greater/lesser rate
permitted under applicable provisions of New Jersey law.
(b) The failure by Customer to pay an invoice
within 90 days after receipt of such invoice or the failure by the
Customer to timely pay two consecutive invoices shall constitute a
material breach pursuant to Section 15.3(a) below. The Transfer Agent
may terminate this Agreement for such material breach immediately
and shall not be obligated to provide the Customer with 30 days to cure
such breach.
6.6 Overtime Charges. Overtime charges will be
assessed in the event of a late delivery to the Transfer Agent of
Customer material for mailings to Shareholders, unless the mail date is
rescheduled. Such material includes, but is not limited to, proxy
statements, quarterly and annual reports and news releases.
6.7 Bank Accounts. The Customer acknowledges that
the bank accounts maintained by CSS in connection with the Services
will be in its name and that CSS may receive investment earnings in
connection with the investment at CSS's risk and for its benefit of
funds held in those accounts from time to time.
Section 7. Representations and Warranties of Transfer Agent.
7.1 Governance. The Trust Company is a federally
chartered limited purpose national bank duly organized under the laws
of the United States and CSS is a corporation validly existing and in
good standing under the laws of the State of Delaware and each has full
corporate power, authority and legal right to execute, deliver and
perform this Agreement. The execution, delivery and performance of
this Agreement by Transfer Agent has been duly authorized by all
necessary corporate action and constitutes the legal valid and binding
obligation of Transfer Agent enforceable against Transfer Agent in
accordance with its terms.
7.2 Compliance. The execution, delivery and
performance of the Agreement by Transfer Agent will not violate,
conflict with or result in the breach of any material term, condition or
provision of, or require the consent of any other party to, (i) any
existing law, ordinance, or governmental rule or regulation to which
Transfer Agent is subject, (ii) any judgment, order, writ, injunction,
decree or award of any court, arbitrator or governmental or regulatory
official, body or authority which is applicable to Transfer Agent,
(iii) the incorporation documents or by-laws of, or any material
agreement to which Transfer Agent is a party.
7.3 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
7.4 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
7.5 It will comply with all applicable sections of the
Exchange Act necessary to enter into and perform this Agreement.
7.6 It has and will continue to have a commercially
reasonable disaster recovery plan.
Section 8. Computer Services.
8.1 Transfer Agent. Has developed a data access service
that enables the Customer to access the Customer's Shareholder records
maintained on the Transfer Agent's computer system through the
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Internet or remote access, as the case maybe (the "Data Access
Service"). The Customer wishes to use such Data Access Service
subject to the terms and conditions set forth herein.
8.2 Procedures for Access. Access is accomplished by
entering a unique Customer identification ("Customer ID(s)") and
passwords ("Password(s)")assigned to the Customer by Transfer Agent.
Each Customer ID and Password assigned to the Customer is for use
only by the Customer. The Customer shall establish and maintain
reasonable security and control over each Customer ID. After Transfer
Agent assigns the Customer a Password, the Customer shall change the
Password. The Password is within the Customer's exclusive control
after the necessary change. Customer agrees to notify Transfer Agent
immediately if any employee of Customer granted access to the Data
Access Service leaves the employ of the Customer, in order to enable
Transfer Agent to terminate such employee's access.
8.3 Proprietary Information. The Customer
acknowledges that the databases, computer programs, screen formats,
report formats, interactive design techniques, and documentation
manuals furnished to the Customer by Transfer Agent as part of the
Data Access Service to access Shareholder Data maintained by the
Transfer Agent on data bases under the control and ownership of the
Transfer Agent or other third party constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third
party. In no event shall Proprietary Information be deemed
Shareholder Data. The Customer agrees to treat all Proprietary
Information as proprietary to the Transfer Agent and further agrees that
it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting
the foregoing, the Customer agrees for itself and its employees and
agents:
(a) to refrain from copying or duplicating in any
way the Proprietary Information, other than to print out pages reflecting
Shareholder Data to provide to Shareholders or for Customer's internal
use;
(b) to refrain from obtaining unauthorized
access to any portion of the Proprietary Information, and if such access
is inadvertently obtained, to inform Transfer Agent in a timely manner
of such fact and dispose of such information in accordance with
Transfer Agent's instructions;
(c) to refrain from causing or allowing the
Proprietary Information from being retransmitted to any other computer
facility or other location, except with the prior written consent of the
Transfer Agent;
(d) that the Customer shall have access only to
those authorized transactions agreed upon by the parties; and
(e) to honor all reasonable written requests
made by Transfer Agent to protect at Transfer Agent's expense the
rights of Transfer Agent Proprietary Information at common law, under
federal copyright law and under other federal or state law.
8.4 Content. If the Customer notifies the Transfer Agent
that any part of the Data Access Service does not operate in material
compliance with the user documentation provided by the Transfer
Agent for such service, the Transfer Agent shall endeavor in a timely
manner to correct such failure. Organizations from which the Transfer
Agent may obtain certain data included in the services are solely
responsible for the contents of such data and the Customer agrees to
make no claim against the Transfer Agent arising out of the contents of
such third party data, including, but not limited to, the accuracy thereof.
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8.5 Transactions. If the transactions available to the
Customer include the ability to originate electronic instructions to the
Transfer Agent in order to (i) effect the transfer or movement of Shares
or direct CSS to transfer cash or (ii) transmit Shareholder information
or other information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such instructions
without undertaking any further inquiry as long as such instructions are
undertaken in conformity with security procedures established by the
Transfer Agent from time to time.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 8.
Section 9. Representations and Warranties of Customer.
The Customer represents and warrants to the Transfer Agent
that:
9.1 Organizations. It is a corporation duly organized and
existing and in good standing under the laws of Maryland;
9.2 Governance. It is empowered under applicable laws
and by its Articles of Incorporation and By-Laws to enter into and
perform this Agreement. All corporate proceedings required by said
Articles of Incorporation, By-Laws and applicable law have been taken
to authorize it to enter into and perform this Agreement; and
9.3 Securities Act of 1933. A registration statement
under the Securities Act of 1933, as amended (the "1933 Act") has
been filed and is currently effective, or will be effective prior to the sale
of any Shares, and will remain so effective, and all appropriate state
securities law filings have been made with respect to all the Shares of
the Customer being offered for sale except for any Shares which are
offered in a transaction or series of transactions which are exempt from
the registration requirements of the 1933 Act and state securities laws;
information to the contrary will result in immediate notification to the
Transfer Agent.
Section 10. Indemnification/Limitation of Liability.
10.1 Standard of Care. The Transfer Agent shall at all
times act in good faith and agrees to use its best efforts within
reasonable time limits to insure the accuracy of all services performed
under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith or willful misconduct or that of its employees
as set forth and subject to the limitations set forth in Section 10.4
below.
10.2 Customer Indemnity. The Transfer Agent shall not
be responsible for, and the Customer shall indemnify and hold the
Transfer Agent harmless from and against, any and all losses, claims,
damages, costs, charges, counsel fees and expenses, payments,
expenses and liability arising out of or attributable to:
(a) all actions of the Transfer Agent or its
agents or subcontractors required to be taken pursuant to this
Agreement provided such actions are taken in good faith and without
negligence or willful misconduct;
(b) the Customer's lack of good faith,
negligence or willful misconduct or the breach of any representation or
warranty of the Customer hereunder;
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(c) the reliance or use by the Transfer Agent or
its agents or subcontractors of information, records and documents
which have been prepared and/or maintained by the Customer or any
other person or firm on behalf of the Customer. Such other person or
firm shall include any former transfer agent or former registrar, or co-
transfer agent or co-registrar or any current registrar where the Transfer
Agent is not the current registrar;
(d) the reliance or use by the Transfer Agent or
its agents or subcontractors of any paper or document reasonably
believed to be genuine and to have been signed by the proper person or
persons including Shareholders or electronic instruction from
Shareholders submitted through the Shareholder Internet Services or
other electronic means pursuant to security procedures established by
the Transfer Agent; and
(e) the negotiations and processing of all
checks, including checks made payable to prospective or existing
shareholders which are tendered to the Transfer Agent for the purchase
of Shares (commonly known as "third party checks").
10.3 Instructions. At any time the Transfer Agent may
apply to any officer of the Customer for instruction, and may consult
with legal counsel for the Transfer Agent or the Customer with respect
to any matter arising in connection with the services to be performed by
the Transfer Agent under this Agreement, and Transfer Agent and its
agents and subcontractors shall not be liable and shall be indemnified
by the Customer for any action taken or omitted by it in reliance upon
such instructions or upon the advice or opinion of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document reasonably believed
to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents
provided the Transfer Agent or its agents or subcontractors by
telephone, in person, machine readable input, telex, CRT data entry or
similar means authorized by the Customer, and shall not be held to
have notice of any change of authority of any person, until receipt of
written notice thereof from the Customer. The Transfer Agent, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the
proper manual or facsimile signatures of officers of the Customer, and
the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
10.4 Transfer Agent Indemnification/Limitation of
Liability. Transfer Agent shall be responsible for and shall indemnify
and hold the Customer harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to Transfer Agent's refusal or failure to
comply with the terms of this Agreement, or which arise out of
Transfer Agent's negligence or willful misconduct or which arise out of
the breach of any representation or warranty of Transfer Agent
hereunder, for which Transfer Agent is not entitled to indemnification
under this Agreement; provided, however, that Transfer Agent's
aggregate liability during any term of this Agreement with respect to,
arising from, or arising in connection with this Agreement, or from all
services provided or omitted to be provided under this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall not
exceed $1,000,000.00 (one million dollars).
10.5 Notice. In order that the indemnification provisions
contained in this Section shall apply, upon the assertion of a claim for
which one party may be required to indemnify the other, the party
seeking indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The indemnifying party shall
have the option to participate with the indemnified party in the defense
of such claim or to defend against said claim in its own name or the
name of the indemnified party. The indemnified party shall in no case
confess any claim or make any compromise in any case in which the
indemnifying party may be required to indemnify it except with the
indemnifying party's prior written consent.
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Section 11. Damages.
No party shall be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not
limited to, loss of anticipated profits, occasioned by a breach of any
provision of this Agreement even if apprised of the possibility of such
damages.
Section 12. Responsibilities of the Transfer Agent.
12.1 The Customer agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Transfer Agent
for the carrying out, or performing by the Transfer Agent of the
provisions of this Agreement.
12.2 No provision of this Agreement shall require the
Transfer Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in
the exercise of its rights if it shall believe in good faith that repayment
of such funds or adequate indemnification against such risk or liability
is not reasonably assured to it.
Section 13. Covenants of the Customer and Transfer Agent.
13.1 Notification. Customer shall notify Transfer Agent
as soon as possible in advance of any stock split, stock dividend or
similar event which may affect the Shares, and any bankruptcy,
insolvency, moratorium or other proceeding regarding Customer
affecting the enforcement of creditors' rights. Notwithstanding any
other provision of the Agreement to the contrary, Transfer Agent will
have no obligation to perform any Services under the Agreement
subsequent to the commencement of any bankruptcy, insolvency,
moratorium or other proceeding regarding Customer affecting the
enforcement of creditor' rights unless Transfer Agent receives
assurance satisfactory to it that it will receive full payment for such
services.
13.2 Records. The Transfer Agent shall keep records
relating to the services to be performed hereunder, in the form and
manner as it may deem advisable. The Transfer Agent agrees that all
such records prepared or maintained by it relating to the services
performed hereunder are the property of the Customers and will be
preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the
Customers on and in accordance with its request, to the extent such
surrender does not conflict with, or is not prohibited by, applicable
laws.
Section 14. Confidentiality.
14.1 Covenant. The Transfer Agent and the Customer
agree that they will not, at any time during the term of this Agreement
or after its termination, reveal, divulge, or make known to any person,
firm, corporation or other business organization, any customers' lists,
trade secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information whatsoever,
whether of the Transfer Agent or of the Customer, used or gained by
the Transfer Agent or the Customer during performance under this
Agreement. The Customer and the Transfer Agent further covenant
and agree to retain all such knowledge and information acquired during
and after the term oft his Agreement respecting such lists, trade secrets,
or any secret or confidential information whatsoever in trust for the sole
benefit of the Transfer Agent or the Customer and their successors and
assigns. The above prohibition of disclosure shall not apply to the
extent that the Transfer Agent must disclose such data to its sub-
contractor or agent for purposes of providing services under this
Agreement.
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14.2 Request for Records. In the event that any requests
or demands are made for the inspection of the Shareholder records of
the Customer, other than request for records of Shareholders pursuant
to standard subpoenas from state or federal government authorities
(e.g., in divorce and criminal actions), the Transfer Agent will endeavor
to notify the Customer and to secure instructions from an authorized
officer of the Customer as to such inspection. The Transfer Agent
expressly reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by counsel that it may be
held liable for the failure to exhibit the Shareholder records to such
person or if required bylaw or court order.
Section 15. Term and Termination.
15.1 Term. The Initial Term of this Agreement shall be
three (3) years from the date first stated above unless terminated
pursuant to the provisions of this Section 15. Unless a terminating
party gives written notice to the other party sixty (60) days before the
expiration of the Initial Term this Agreement will renew automatically
from year to year ("Renewal Term"). If, after the Initial Term, any
party to this Agreement may terminate this Agreement by providing
notice to the other parties 60 days prior to the anticipated termination
date. Sixty (60) days prior to the Initial Term or a Renewal Term, the
parties to this Agreement will mutually agree upon a Fee Schedule for
the upcoming Renewal Term.
15.2 Early Termination. Notwithstanding anything
contained in this Agreement to the contrary, should Customer desire to
move any of its services provided by the Transfer Agent hereunder to a
successor service provider prior to the expiration of the then current
Initial or Renewal Term, or without the required notice period, the
Transfer Agent shall make a good faith effort to facilitate the
conversion on such prior date, however, there can be no guarantee that
the Transfer Agent will be able to facilitate a conversion of services on
such prior date. In connection with the foregoing, should services be
converted to a successor service provider, or if the Customer is
liquidated or its assets merged or purchased or the like with another
entity which does not utilize the services of the Transfer Agent, the fees
payable to the Transfer Agent shall be calculated as if the services had
remained with the Transfer Agent until the expiration of the then
current Initial or Renewal Term and calculated at existing rates on the
date notice of termination was given to the Transfer Agent, and the
payment of fees to the Transfer Agent as set forth herein shall be
accelerated to the date prior to the conversion or termination of
services. Section 15.2 shall not apply if the Transfer Agent is
terminated for cause under Section 15.4(a) of this Agreement. Once
this Agreement is terminated, any and all other services provided by
Transfer Agent for the Customer will be deemed terminated on said
date.
15.3 Expiration of Term. After the expiration of the Initial
Term or Renewal Term whichever currently is in effect, should either
party exercise its right to terminate, all reasonable out-of-pocket
expenses associated with the movement of records and material will be
borne by the Customer. Additionally, the Transfer Agent will charge a
de-conversion/transition fee in an amount equal to 10% of the
aggregate fees incurred by Customer during the immediately preceding
twelve (12) month period, provided, however, such fee shall in no event
be less than one thousand ($1,000.00) dollars.
15.4 Termination.
This Agreement may be terminated in accordance with the
following:
(a) At any time by any party upon a material
breach of a representation, covenant or term of this Agreement by any
other unaffiliated party which is not cured within a period not to exceed
thirty (30) days after the date of written notice thereof by one of the
other parties; and
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(b) By Transfer Agent, at any time, in the event
that during the term of this Agreement, a bankruptcy or insolvency
proceeding is filed by or against Customer or a trustee or receiver is
appointed for any substantial part of Customer's property (and in a case
of involuntary bankruptcy, insolvency or receivership proceeding, there
is entered an order for relief, or order appointing a receiver or some
similar order or decree and Customer does not succeed in having such
order lifted or stayed within sixty (60) days from the date of its entry),
or Customer makes an assignment of all or substantially all of its
property for the benefit of creditors or ceases to conduct its operations
in the normal course or business.
15.5 Records. Upon receipt of written notice of
termination, the parties will use commercially practicable efforts to
effect an orderly termination of this Agreement. Without limiting the
foregoing, Transfer Agent will deliver promptly to Customers, in
machine readable form on media as reasonably requested by
Customers, all stockholder and other records, files and data supplied to
or compiled by Transfer Agent on behalf of Customers.
15.6 Privacy Act Information Definition.
(a) Definition. Transfer Agent may receive
information from Customer or may come into possession of
information that Customer is required to protect under Title V of the
Graham-Leach-Bliley Act of 1999 ("Privacy Act") in connection with
providing services to Customer under this Agreement. For purposes of
this Agreement, "Privacy Act Information" shall mean the following
types of information and other information of a similar nature (whether
or not reduced to writing): Shareholder Information, non public
personal information including" personally identifiable financial
information" whether provided directly by the Shareholder in
connection with obtaining a service or obtained from other sources,
Shareholder financial information, Shareholder names and other
information related to Shareholders.
(b) Ownership. All notes, data, reference,
materials, memoranda, documentation and records, in any way
incorporating or reflecting any of the Privacy Act Information shall
belong exclusively at all times to Customer. Transfer Agent agrees to
turn over shareholder records to Customer upon request or upon
termination of this Agreement, subject to applicable law.
(c) Confidentiality. Transfer Agent agrees
during the term of this Agreement and thereafter to hold in confidence
and not to directly or indirectly reveal, report, publish, disclose or
transfer any of the Privacy Act Information to any person or entity, or
utilize any of the Privacy Act Information for any purpose, except in
connection with providing services hereunder or as required by law;
provided, however, Transfer Agent may disclose such Privacy Act
Information to its third-party vendors for purposes of performing
services for Customer provided such third party vendors are
contractually bound to keep such information confidential.
Section 16. Assignment.
16.1 Consent. Except as otherwise provided in
Section 16.2 below, neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by either party
without the written consent of the other.
16.2 Affiliates. The Transfer Agent may, without further
consent of the Customer assign its rights and obligations hereunto to
any affiliated transfer agent registered under Section 17A(c)(2) of the
Exchange Act. The Transfer Agent may not assign its rights or
obligations to unaffiliated third parties without the written consent of
the Customer.
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16.3 Sub-contractors. Transfer Agent may, without
further consent on the part of Customer, subcontract with other
subcontractors for telephone and mailing services as may be required
from time to time; provided, however, that the Transfer Agent shall be
as fully responsible to the Customer for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Section 17. Unaffiliated Third Parties.
Nothing herein shall impose any duty upon the Transfer Agent
in connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as, by way of example
and not limitation, airborne services, the U.S. mails and
telecommunication companies, provided, if the Transfer Agent selected
such company, the Transfer Agent shall have exercised due care in
selecting the same.
Section 18. Miscellaneous.
18.1 Notices. Any notice or communication by the
Transfer Agent or the Customer to the other is duly given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
telex, telecopier or overnight air courier guaranteeing next day delivery,
to the other's address:
If to the Customer:
Morgan Stanley Trust
Harborside Financial Center
Plaza II
Jersey City, NJ 07311
Telecopy No.: (781) 575-4210
Attn: General Counsel
If to the Transfer Agent:
Computershare Trust Company, N.A.
c/o Computershare Shareholder Services, Inc.
250 Royall Street
Canton, MA 02021
Telecopy No.: (781) 575-4210
Attn: General Counsel
18.2 Successors. All the covenants and provisions of this
agreement by or for the benefit of the Customer or the Transfer Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
18.3 Amendments. This Agreement may be amended or
modified by a written amendment executed by the parties hereto and, to
the extent required, authorized or approved by a resolution of the Board
of Directors of the Customer.
18.4 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provision, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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18.5 Governing Law. This Agreement shall be governed
by the laws of the Commonwealth of Massachusetts, without reference
to its conflicts of law provisions.
18.6 Force Majeure. Notwithstanding anything to the
contrary contained herein, Transfer Agent shall not be liable for any
delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of
computer facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.
18.7 Third Party Beneficiaries. The provisions of this
Agreement are intended to benefit only the Transfer Agent, the
Customer and their respective permitted successors and assigns. No
rights shall be granted to any other person by virtue of this agreement,
and there are no third party beneficiaries hereof.
18.8 Survival. All provisions regarding indemnification,
warranty, liability and limits thereon, and confidentiality and protection
of proprietary rights and trade secrets shall survive the termination of
this Agreement.
18.9 Priorities. In the event of any conflict, discrepancy,
or ambiguity between the terms and conditions contained in this
Agreement and any schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
18.10 Merger of Agreement. This agreement constitutes
the entire agreement between the parties hereto and supersedes any
prior agreement with respect to the subject matter hereof, whether oral
or written.
18.11 Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
14
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by one of its officers thereunto
duly authorized, all as of the date first written above.
Morgan Stanley Closed End Funds
Set Forth In Appendix A ("Morgan Stanley Closed-End Funds")
BY:
/s/ James Garrett
Name: James Garrett
Title: Treasurer and Chief Financial
Officer of each of the Morgan Stanley
Closed-End Funds
Computershare Shareholder Services, Inc. Computershare Trust Company, N.A.
On Behalf Of Both Entities
BY:
/s/ Darlene M. Diodato
Name: Darlene M. Diodato
Title: Senior Managing Director
APPENDIX A
Morgan Stanley China A Share Fund, Inc.
Morgan Stanley Emerging Markets Domestic Debt Fund, Inc.
Morgan Stanley Frontier Emerging Markets Fund, Inc.
The Turkish Investment Fund, Inc.
A-1
AMENDMENT NO. 1 TO
TRANSFER AGENCY AND SERVICE AGREEMENT
This Amendment No. 1 ("Amendment"), effective as of April 24,
2009 ("Effective Date"), is to the Transfer Agency and Service
Agreement dated as of September 26, 2006 ("Agreement"), by
and between certain Morgan Stanley Closed End Funds as set
forth in Appendix A of the Agreement (collectively, "Customers"
or individually, "Customer"), and Computershare Inc. (f/k/a
Computershare Shareholder Services, Inc.), and its fully-owned
subsidiary Computershare Trust Company, N.A. (collectively,
"Transfer Agent").
WHEREAS, the Customers and Transfer Agent are
parties to the Agreement;
WHEREAS, the Customers and Transfer Agent now
desire to amend the Agreement;
NOW, THEREFORE, in consideration of the premises and
mutual agreements herein set forth, the parties hereby agree as
follows:
1. Amendment of Introductory Section. The
Introductory Section of the Agreement is
hereby amended by deleting "Harborside Financial
Center, Plaza II, Jersey City, NJ 07311" in its entirety
and replacing it with "522 Fifth Avenue, New York, NY
10036".
2. Amendment of Section 18. Section 18 of the
Agreement is hereby amended by
deleting the "If to Customer" notice address in its
entirety and replacing it with the following:
Morgan Stanley Trust
522 Fifth Avenue
New York, NY 10036
Attn: General Counsel
3. Amendment of Name. The Agreement is hereby
amended by deleting each reference to "Computershare
Shareholder Services, Inc." and replacing each such
reference with "Computershare Inc."
4. Amendment of Appendix A. Appendix A to the
Agreement is hereby deleted in its entirety and replaced
with the new Appendix A attached hereto.
5. Effect on Agreement. Except as otherwise amended,
all other terms of the Agreement shall remain in full
force and effect.
6. Counterparts. This Amendment may be executed in
any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument. A
signature to this Agreement transmitted electronically
shall have the same authority, effect, and enforceability
as an original signature.
IN WITNESS WHEREOF each of the parties hereto has caused
this Amendment to be executed by one of its officers thereunto
duly authorized, all as of the Effective Date.
Computershare Inc. and Computershare Trust Company, N. A.
On Behalf of Both Entities:
By:
Name: Dennis V. Moccia
Title: Managing Director
Morgan Stanley Closed End Funds set forth in Appendix A
By:
Name: James Garrett
Title: Treasurer and Chief Financial Officer of
each of the Morgan Stanley Closed-End Funds
Appendix A
As amended April 24, 2009
Morgan Stanley Asia-Pacific Fund, Inc.
Morgan Stanley California Insured Municipal Income Trust
Morgan Stanley California Quality Municipal Securities
Morgan Stanley China "A" Share Fund, Inc.
Morgan Stanley Eastern Europe Fund, Inc.
Morgan Stanley Emerging Markets Debt Fund, Inc.
Morgan Stanley Emerging Markets Domestic Debt Fund, Inc.
Morgan Stanley Emerging Markets Fund, Inc.
Morgan Stanley Frontier Emerging Markets Fund, Inc.
Morgan Stanley Global Opportunity Bond Fund, Inc.
Morgan Stanley High Yield Fund, Inc.
Morgan Stanley Income Securities Inc.
Morgan Stanley India Investment Fund, Inc.
Morgan Stanley Insured California Municipal Securities
Morgan Stanley Insured Municipal Bond Trust
Morgan Stanley Insured Municipal Income Trust
Morgan Stanley Insured Municipal Securities
Morgan Stanley Insured Municipal Trust
Morgan Stanley Municipal Income Opportunities Trust
Morgan Stanley Municipal Income Opportunities Trust II
Morgan Stanley Municipal Income Opportunities Trust III
Morgan Stanley Municipal Premium Income Trust
Morgan Stanley New York Quality Municipal Securities
Morgan Stanley Quality Municipal Income Trust
Morgan Stanley Quality Municipal Investment Trust
Morgan Stanley Quality Municipal Securities
The Latin American Discovery Fund, Inc.
The Malaysia Fund, Inc.
The Thai Fund, Inc.
The Turkish Investment Fund, Inc.
AMENDMENT
NO. 2 TO TRANSFER AGENCY AND SERVICE AGREEMENT
This Amendment No. 2 ("Amendment), effective as of June 1, 2010 (
"Effective Date"), is to the Transfer Agency and Service Agreement
dated as of September 26, 2006 ("Agreement"), by and between certain
Morgan Stanley Closed End Funds as set forth in Appendix A of the
Agreement (collectively, "Customers" or individually, "Customer"),
and Computershare Inc. (f/k/a Computershare Shareholder Services,
Inc.), and its fully owned subsidiary Computershare Trust Company,
N.A. (collectively, "Transfer Agent").
WHEREAS, the Customers and Transfer Agent are
parties to the Agreement;
WHEREAS, the Customers and Transfer Agent now
desire to amend the Agreement;
NOW, THEREFORE, in consideration of the
premises and mutual agreements herein set forth, the parties hereby
agree as follows:
1. Amendment of Amended Appendix A. Amended Appendix
A to the Agreement is hereby deleted in its entirety and
replaced with the new Amended Appendix A attached hereto.
2. Effect on Agreement. Except as otherwise amended, all
other terms of the Agreement shall remain in full force and
effect.
3. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument. A signature to this Agreement transmitted
electronically shall have the same authority, effect, and
enforceability as an original signature.
IN WITNESS WHEREOF each of the parties hereto has caused this
Amendment to be executed by one of its officers thereunto duly
authorized, all as of the Effective Date.
Computershare Inc. and Computershare Trust Company, N.A.
On Behalf of Both Entities:
By: /s/ Dennis V. Moccia
Name: Dennis V. Moccia
Title: Manager, Contract Administration
Morgan Stanley Closed End Funds
set forth in Amended Appendix A
By: /s/ Frank Smith
Name: Frank Smith
Title: Treasurer, Morgan Stanley Closed-end Funds
Appendix A
As Amended April 29, 2010
Morgan Stanley Asia-Pacific Fund, Inc.
Morgan Stanley Eastern Europe Fund Inc.
Morgan Stanley Emerging Markets Fund
Morgan Stanley Emerging Markets Debt Fund
Morgan Stanley Global Opportunity Bond
Morgan Stanley Income Securities Inc.
Morgan Stanley India Investment Fund
The Latin American Discovery Fund Inc.
The Malaysia Fund Inc.
The Thai Fund Inc.
The Turkish Investment Fund Inc.
Morgan Stanley China A Share Fund
Morgan Stanley Emerging Markets Domestic Debt Fund
Morgan Stanley Frontier Emerging Market Fund
(revised: 4/29/2010)
17354857.1.BUSINESS
EX-99.77Q2 ITEM 405
3
MSChinaAShareFundByLaws.txt
MS CHINA A SHARE FUND BY LAWS
MORGAN STANLEY CHINA A SHARE
FUND, INC.
Second Amended and Restated Bylaws
June 2012
ARTICLE I
STOCKHOLDERS SECTION
Section 1.1. Place of Meeting. All
meetings of the stockholders should be held at the
principal office of the Corporation in the State of
Maryland or at such other place within the United
States as may from time to time be designated by
the Board of Directors and stated in the notice of
such meeting.
Section 1.2. Annual Meetings. The
annual meeting of the stockholders of the
Corporation shall be held on such day of each
calendar year as may from time to time be
designated by the Board of Directors and stated in
the notice of such meeting, for the purpose of
electing directors for the ensuing year and for the
transaction of such other business as may properly
be brought before the meeting.
Section 1.3. Special Meetings. Special
meetings of the stockholders for any purpose or
purposes may be called by the Chairman of the
Board, the President, or a majority of the Board of
Directors. Special meetings of stockholders shall
also be called by the Secretary upon receipt of the
request in writing signed by stockholders holding
not less than a majority of the votes entitled to be
cast thereat. Such request shall state the purpose or
purposes of the proposed meeting and the matters
proposed to be acted on at such proposed meeting.
The Secretary shall inform such stockholders of the
reasonably estimated costs of preparing and mailing
such notice of meeting and upon payment to the
Corporation of such costs, the Secretary shall give
notice as required in this Article to all stockholders
entitled to notice of such meeting.
Section 1.4. Notice of Meetings of
Stockholders. Not less than ten days' and not more
than ninety days' written or printed notice of every
meeting of stockholders, stating the time and place
thereof (and the purpose of any special meeting),
shall be given by the Secretary to each stockholder
entitled to vote thereat and to each other stockholder
entitled to notice of the meeting by leaving the same
with such stockholder or at such stockholder's
residence or usual place of business or by mailing it,
postage prepaid, and addressed to such stockholder
at such stockholder's address as it appears upon the
books of the Corporation or by any other means
permitted by Maryland law. If mailed, notice shall
be deemed to be given when deposited in the mail
addressed to the stockholder as aforesaid.
No notice of the time, place or purpose of
any meeting of stockholders need be given to any
stockholder who attends in person or by proxy or to
any stockholder who, in writing executed and filed
with the records of the meeting, either before or
after the holding thereof, waives such notice.
Section 1.5. Record Dates. The Board of
Directors may fix, in advance, a record date for the
determination of stockholders entitled to notice of
or to vote at any stockholders meeting or to receive
a dividend or be allotted rights or for the purpose of
any other proper determination with respect to
stockholders and only stockholders of record on
such date shall be entitled to notice of and to vote at
such meeting or to receive such dividends or rights
or otherwise, as the case may be; provided,
however, that such record date shall not be prior to
ninety days preceding the date of any such meeting
of stockholders, dividend payment date, date for the
allotment of rights or other such action requiring the
determination of a record date; and further provided
that such record date shall not be prior to the close
of business on the day the record date is fixed, that
the transfer books shall not be closed for a period
longer than 20 days, and that in the case of a
meeting of stockholders, the record date or the
closing of the transfer books shall not be less than
ten days prior to the date fixed for such meeting.
Section 1.6. Quorum; Adjournment of
Meetings. The presence in person or by proxy of
stockholders entitled to cast a majority of the votes
entitled to be cast thereat shall constitute a quorum
at all meetings of the stockholders, except as
otherwise provided in the Charter of the
Corporation (the "Charter"). If, however, such
quorum shall not be present or represented at any
meeting of the stockholders, the chairman of the
meeting or the holders of a majority of the stock
present in person or by proxy shall have power to
adjourn the meeting from time to time, without
notice other than announcement at the meeting,
until the requisite amount of stock entitled to vote at
such meeting shall be present, to a date not more
than 120 days after the original record date. 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 convened, may continue to transact business
until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 1.7. Voting and Inspectors.
Unless otherwise provided in the Charter (including
the articles supplementary for any class or series
which may be classified or reclassified), at all
meetings, stockholders of record entitled to vote
thereat shall have one vote for each share of capital
stock standing in such stockholder's name on the
books of the Corporation (and such stockholders of
record holding fractional shares, if any, shall have
proportionate voting rights) on the date for the
determination of stockholders entitled to vote at
such meeting, either in person or by proxy
appointed by instrument in writing subscribed by
such stockholder or his duly authorized attorney.
All elections shall be had and all questions
and other matters shall be decided by a majority of
the votes cast at a duly constituted meeting, except
as otherwise provided by statute or by the Charter
or by these Bylaws.
At any election of directors, the chairman of
the meeting may, and upon the request of the
holders of ten percent (10%) of the stock entitled to
vote at such election shall, appoint two inspectors of
election who shall first subscribe an oath or
affirmation to execute faithfully the duties of
inspectors at such election with strict impartiality
and according to the best of their ability, and shall
after the election make a certificate of the result of
the vote taken. No candidate for the office of
director shall be appointed such Inspector.
Section 1.8. Conduct of Stockholders'
Meetings. The meetings of the stockholders shall
be presided over by the Chairman of the Board, or if
he is not present, by the President, or if he is not
present, by a Vice-President, or if none of them is
present, by a Chairman to be elected at the meeting.
The Secretary of the Corporation, if present, shall
act as a Secretary of such meetings, or if he is not
present, an Assistant Secretary shall so act; if
neither the Secretary nor the Assistant Secretary is
present, then the meeting shall elect its Secretary.
The 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 and other such individuals 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
and other such individuals as the chairman of the
meeting may determine; (d) limiting the time
allotted to questions or comments by participants;
(e) maintaining order and security at the meeting;
(f) removing any stockholder or any other
individual who refuses to comply with meeting
procedures, rules or guidelines as set forth by the
chairman of the meeting; and (g) recessing or
adjourning the meeting to a later date and time and
place announced at the meeting. 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 1.9. Concerning Validity of
Proxies, Ballots, etc. A stockholder may cast the
votes entitled to be cast by the shares of stock
owned by such stockholder in person or by proxy
executed by the stockholder or by the stockholder's
duly authorized agent in any manner permitted by
law. Such proxy or evidence of authorization of
such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. At
every meeting of the stockholders, all proxies shall
be received and taken in charge of and all ballots
shall be received and canvassed by the Secretary of
the meeting, who shall decide all questions touching
the qualification of voters, the validity of the
proxies and the acceptance or rejection of votes,
unless inspectors of election shall have been
appointed by the chairman of the meeting, in which
event such inspectors of election shall decide all
such questions. Unless a proxy provides otherwise,
it is not valid for more than eleven months after its
date.
Section 1.10. Action Without Meeting.
Any action to be taken by stockholders may be
taken without a meeting if (1) all stockholders
entitled to vote on the matter consent to the action
in writing, (2) all stockholders entitled to notice of
the meeting but not entitled to vote at it sign a
written waiver of any right to dissent and (3) said
consents and waivers are filed with the records of
the meetings of stockholders. Such consent shall be
treated for all purposes as a vote at the meeting.
Section 1.11. Advance Notice of
Stockholder Nominees for Director and Other
Stockholder Proposals.
(a) The matters to be considered and
brought before any annual or special meeting of
stockholders of the Corporation shall be limited to
only such matters, including the nomination and
election of directors, as shall be brought properly
before such meeting in compliance with the
procedures set forth in this Section 1.11.
(b) For any matter to be properly before
any annual meeting of stockholders, the matter must
be (i) specified in the notice of annual meeting
given by or at the direction of the Board of
Directors, (ii) otherwise brought before the annual
meeting by or at the direction of the Board of
Directors or (iii) brought before the annual meeting
in the manner specified in this Section 1.11 by a
stockholder of record both at the time of the giving
of notice provided for in this Section 1.11 and at the
time of the meeting, or a stockholder (a "Nominee
Holder") that holds voting securities entitled to vote
at meetings of stockholders through a nominee or
"street name" holder of record and can demonstrate
to the Corporation such indirect ownership and such
Nominee Holder's entitlement to vote such
securities, and is a Nominee Holder at both the time
of the giving of notice provided for in this Section
1.11 and at the time of the meeting. In addition to
any other requirements under applicable law and the
Charter and Bylaws of the Corporation, persons
nominated by stockholders for election as directors
of the Corporation and any other proposals by
stockholders shall be properly brought before the
meeting only if notice of any such matter to be
presented by a stockholder at such meeting of
stockholders (the "Stockholder Notice") shall be
delivered to the Secretary of the Corporation at the
principal executive office of the Corporation not
less than 60 nor more than 90 days prior to the first
anniversary date of the annual meeting for the
preceding year; provided, however, that, if and only
if the annual meeting is not scheduled to be held
within a period that commences 30 days before such
anniversary date and ends 30 days after such
anniversary date (an annual meeting date outside
such period being referred to herein as an "Other
Annual Meeting Date"), such Stockholder Notice
shall be given in the manner provided herein by the
later of the close of business on (i) the date 60 days
prior to such Other Annual Meeting Date or (ii) the
10th day following the date such Other Annual
Meeting Date is first publicly announced or
disclosed. Any stockholder desiring to nominate
any person or persons (as the case may be) for
election as a director or directors of the Corporation
shall deliver, as part of such Stockholder Notice: (i)
a statement in writing setting forth (A) the name of
the person or persons to be nominated, (B) the
number and class of all shares of each class of stock
of the Corporation owned of record and beneficially
by each such person, as reported to such
stockholder by such nominee(s), (C) the
information regarding each such person required by
paragraph (b) of Item 22 of Rule 14a-101 under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), adopted by the Securities and
Exchange Commission (or the corresponding
provisions of any regulation or rule subsequently
adopted by the Securities and Exchange
Commission applicable to the Corporation), (D)
whether such stockholder believes any nominee will
be an "interested person" of the Corporation (as
defined in the Investment Company Act of 1940, as
amended), and, if not an "interested person",
information regarding each nominee that will be
sufficient for the Corporation to make such
determination, and (E) the number and class of all
shares of each class of stock of the Corporation
owned of record and beneficially by such
stockholder; (ii) each such person's signed consent
to serve as a director of the Corporation if elected,
such stockholder's name and address; and (iii) in
the case of a Nominee Holder, evidence establishing
such Nominee Holder's indirect ownership of, and
entitlement to vote, securities at the meeting of
stockholders. Any stockholder who gives a
Stockholder Notice of any matter proposed to be
brought before the meeting (not involving nominees
for director) shall deliver, as part of such
Stockholder Notice, the text of the proposal to be
presented and a brief written statement of the
reasons why such stockholder favors the proposal
and setting forth such stockholder's name and
address, the number and class of all shares of each
class of stock of the Corporation owned of record
and beneficially by such stockholder, if applicable,
any material interest of such stockholder in the
matter proposed (other than as a stockholder) and,
in the case of a Nominee Holder, evidence
establishing such Nominee Holder's indirect
ownership of, and entitlement to vote, securities at
the meeting of stockholders. As used herein, shares
"beneficially owned" shall mean all shares which
such person is deemed to beneficially own pursuant
to Rules 13d-3 and 13d-5 under the Exchange Act.
Notwithstanding anything in this Section
1.11 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of
the Corporation is increased and either all of the
nominees for director or the size of the increased
Board of Directors are not publicly announced or
disclosed by the Corporation at least 70 days prior
to the first anniversary of the preceding year's
annual meeting, a Stockholder Notice shall also be
considered timely hereunder, 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 at the principal executive office of
the Corporation not later than the close of business
on the 10th day following the first date all of such
nominees or the size of the increased Board of
Directors shall have been publicly announced or
disclosed.
(c) Only such matters 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 (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the
direction of the Board of Directors or (iii) provided
that the Board of Directors has determined that
directors shall be elected at such special meeting, by
any stockholder of the Corporation who is a
stockholder of record both at the time of giving of
notice provided for in this Section 1.11 and at the
time of the special meeting, who is entitled to vote
at the meeting and who complied with the notice
procedures set forth in this Section 1.11, or a
Nominee Holder that holds voting securities entitled
to vote at meetings of stockholders through a
nominee or "street name" holder of record and can
demonstrate to the Corporation such indirect
ownership and such Nominee Holder's entitlement
to vote such securities, and is a Nominee Holder
both at the time of giving of notice provided for in
this Section 1.11 and at the time of the Special
Meeting, and who is entitled to vote at the meeting
and has complied with the notice procedures set
forth in this Section 1.11. In the event the
Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to
the Board of Directors, any stockholder may
nominate a person or persons (as the case may be),
for election to such position(s) as specified in the
Corporation's notice of meeting, if the Stockholder
Notice required by clause (b) of this Section 1.11
hereof shall be delivered to the Secretary of the
Corporation at the principal executive office of the
Corporation not later than the close of business on
the 10th day following the day on which the date of
the special meeting and of the nominees proposed
by the Board of Directors to be elected at such
meeting is publicly announced or disclosed.
(d) For purposes of this Section 1.11, a
matter shall be deemed to have been "publicly
announced or disclosed" if such matter is disclosed
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
Corporation with the Securities and Exchange
Commission.
(e) In no event shall the adjournment of
an annual or special meeting, or any announcement
thereof, commence a new period for the giving of
notice as provided in this Section 1.11. This
Section 1.11 shall not apply to stockholder
proposals made pursuant to Rule 14a-8 under the
Exchange Act.
(f) The person presiding at any meeting
of stockholders, in addition to making any other
determinations that may be appropriate to the
conduct of the meeting, shall have the power and
duty to determine whether notice of nominees and
other matters proposed to be brought before a
meeting has been duly given in the manner provided
in this Section 1.11 and, if not so given, shall direct
and declare at the meeting that such nominees and
other matters shall not be considered.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Function of Directors. The
business and affairs of the Corporation shall be
conducted and managed under the direction of its
Board of Directors. All powers of the Corporation
shall be exercised by or under authority of the
Board of Directors except as conferred on or
reserved to the stockholders by statute.
Section 2.2. Number of Directors. At any
regular meeting or at any special meeting called for
that purpose, a majority of the entire Board of
Directors may establish, increase or decrease the
number of directors, provided that the number
thereof shall never be more than fifteen directors
nor less than the minimum number of directors
required under Maryland law. Directors need not
be stockholders.
Section 2.3. Classes of Directors. As
permitted by Article VI of the Charter and
applicable law, the directors shall be divided into
three classes, designated Class I, Class II and Class
III. All classes shall be as nearly equal in number
as possible and the Board of Directors shall
designate from its members the directors to initially
serve as Class I directors, Class II directors and
Class III directors. The directors as initially
classified shall hold office for terms as follows: the
Class III directors shall hold office until the date of
the annual meeting of stockholders in 2007 or until
their successors shall be elected and qualified; the
Class I directors shall hold office until the date of
the annual meeting of stockholders in 2008 or until
their successors shall be elected and qualified; and
the Class II directors shall hold office until the date
of the annual meeting of stockholders in 2009 or
until their successors shall be elected and qualified.
Upon expiration of the term of office of each class
as set forth above, the successors to the directors in
each such class shall be elected for a term of three
years to succeed the directors whose terms of office
expire. Each director shall hold office until the
expiration of his or her term and until his or her
successor shall have been elected and qualified, or
until his or her death, or until he or she shall have
resigned, or until he or she shall have been removed
as provided by statute or the Charter of the
Corporation.
Section 2.4. Vacancies. Except as may be
provided by the Board of Directors in setting the
terms of any class or series of preferred stock, any
vacancy on the Board of Directors may be filled
only by a majority of the remaining directors, even
if the remaining directors do not constitute a
quorum. Any director elected to fill a vacancy shall
serve for the remainder of the full term of the class
in which the vacancy occurred and until a successor
is elected and qualifies.
Section 2.5. Place of Meeting. The
Directors may hold their meetings within or outside
the State of Maryland, at any office or offices of the
Corporation or at any other place as they may from
time to time determine.
Section 2.6. Regular Meetings. Regular
meetings of the Board of Directors shall be held at
such time and on such notice as the Directors may
from time to time determine.
The annual meeting of the Board of
Directors shall be held as soon as practicable after
the annual meeting of the stockholders for the
election of Directors.
Section 2.7. Special Meetings. Special
meetings of the Board of Directors may be held
from time to time upon call of the Chairman of the
Board, the President, the Secretary or two or more
of the Directors, by oral or telegraphic or written
notice duly served on or sent or mailed to each
Director not less than one day before such meeting.
Section 2.8. Notices. Unless required by
statute or otherwise determined by resolution of the
Board of Directors in accordance with these
Bylaws, notices to Directors need not be in writing
and need not state the business to be transacted at or
the purpose of any meeting and may be given not
less than twenty-four (24) hours in advance of the
meeting, and no notice need be given to any
Director who is present in person or to any Director
who, in writing executed and filed with the records
of the meeting either before or after the holding
thereof, waives such notice. Waivers of notice need
not state the purpose or purposes of such meeting.
Section 2.9. Quorum. One-third of the
directors then in office shall constitute a quorum for
the transaction of business, provided that if there is
more than one director, a quorum shall in no case be
less than two directors. If at any meeting of the
Board there shall be less than a quorum present, a
majority of those present may adjourn the meeting
from time to time until a quorum shall have been
obtained. The act of the majority of the directors
present at any meeting at which there is a quorum
shall be the act of the Directors, except as may be
otherwise specifically provided by statute or by the
Charter or by these Bylaws.
Section 2.10. Executive Committee. The
Board of Directors may appoint from the Directors
an Executive Committee to consist of such number
of directors (which may be one or more) as the
Board may from time to time determine. The
Chairman of the Committee shall be elected by the
Board of Directors. The Board of Directors shall
have power at any time to change the members of
such Committee and may fill vacancies in the
Committee by election from the directors. When
the Board of Directors is not in session, to the
extent permitted by law, the Executive Committee
shall have and may exercise any or all of the powers
of the Board of Directors in the management and
conduct of the business and affairs of the
Corporation. The Executive Committee may fix its
own rules of procedure, and may meet when and as
provided by such rules or by resolution of the Board
of Directors, but in every case the presence of a
majority shall be necessary to constitute a quorum.
During the absence of a member of the Executive
Committee, the remaining members may appoint a
member of the Board of Directors to act in his
place.
Section 2.11. Other Committees. The
Board of Directors may appoint from the directors
other committees which shall in each case consist of
such number of directors (which may be one or
more) and, to the extent permitted by law, shall
have and may exercise such powers as the Board
may determine in the resolution appointing them. A
majority of all the members of any such committee
may determine its action and fix the time and place
of its meetings, unless the Board of Directors shall
otherwise provide. The Board of Directors shall
have power at any time to change the members and
powers of any such committee, to fill vacancies and
to discharge any such committee.
Section 2.12. Telephone Meetings.
Members of the Board of Directors or a committee
of the Board of Directors may participate in a
meeting by means of a conference telephone or
similar communications equipment if all persons
participating in the meeting can hear each other at
the same time. Participation in a meeting by these
means, subject to the provisions of the Investment
Company Act of 1940, as amended, constitutes
presence in person at the meeting.
Section 2.13. Action Without a Meeting.
Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee
thereof may be taken without a meeting, if a
unanimous consent which sets forth such action is
given in writing or by electronic transmission by
each member of the Board or of such committee, as
the case may be, and such consent is filed with the
minutes of the proceedings of the Board or such
committee.
Section 2.14. Compensation of Directors.
No director shall receive any stated salary or fees
from the Corporation for his services as such if such
director is, otherwise than by reason of being such
Director, an interested person (as such term is
defined by the Investment Company Act of 1940, as
amended) of the Corporation or of its investment
manager or principal underwriter. Except as
provided in the preceding sentence, directors shall
be entitled to receive such compensation from the
Corporation for their services as may from time to
time be voted by the Board of Directors.
Section 2.15. Selection and Nomination of
Non-Interested Directors. Subject to approval by a
majority of the directors of the Corporation, the
directors of the Corporation who are not interested
persons of the Corporation (as that term is defined
in the Investment Company Act of 1940, as
amended) shall select and nominate the directors of
the Corporation who are not interested persons of
the Corporation.
ARTICLE III
OFFICERS
Section 3.1. Executive Officers. The
executive officers of the Corporation shall be
chosen by the Board of Directors. These may
include a Chairman of the Board of Directors (who
shall be a Director) and shall include a President, a
Secretary and a Treasurer. The Board of Directors
or the Executive Committee may also in its
discretion appoint one or more Vice-Presidents,
Assistant Secretaries, Assistant Treasurers and other
officers, agents and employees, who shall have such
authority and perform such duties as the Board of
Directors or the Executive Committee may
determine. The Board of Directors may fill any
vacancy which may occur in any office. Any two
offices, except those of President and Vice-
President, may be held by the same person, but no
officer shall execute, acknowledge or verify any
instrument in more than one capacity, if such
instrument is required by law or these Bylaws to be
executed, acknowledged or verified by two or more
officers.
Section 3.2. Term of Office. The term of
office of all officers shall be one year and until their
respective successors are chosen and qualified. Any
officer may be removed from office at any time
with or without cause by the vote of a majority of
the whole Board of Directors. Any officer may
resign his office at any time by delivering a written
resignation to the Corporation and, unless otherwise
specified therein, such resignation shall take effect
upon delivery.
Section 3.3. Powers and Duties. The
officers of the Corporation shall have such powers
and duties as shall be stated in a resolution of the
Board of Directors, or the Executive Committee
and, to the extent not so stated, as generally pertain
to their respective offices, subject to the control of
the Board of Directors and the Executive
Committee.
Section 3.4. Surety Bonds. The Board of
Directors may require any officer or agent of the
Corporation to execute a bond (including, without
limitation, any bond required by the Investment
Company Act of 1940, as amended, and the rules
and regulations of the Securities and Exchange
Commission) to the Corporation in such sum and
with such surety or sureties as the Board of
Directors may determine, conditioned upon the
faithful performance of his duties to the
Corporation, including responsibility for negligence
and for the accounting of any of the Corporation's
property, funds or securities that may come into his
hands.
ARTICLE IV
CAPITAL STOCK
Section 4.1. Certificates for Shares.
Subject to the authority of the Board of Directors to
cause some or all of the shares of any class or series
of stock to be issued without certificates, each
stockholder of the Corporation shall be entitled to a
certificate or certificates for the full number of
shares of stock of the Corporation owned by him in
such form as the Board may from time to time
prescribe.
Section 4.2. Transfer of Shares. Shares of
the Corporation shall be transferable on the books
of the Corporation by the holder thereof in person
or by his duly authorized attorney or legal
representative, upon surrender and cancellation of
certificates, if any, for the same number of shares,
duly endorsed or accompanied by proper
instruments of assignment and transfer, with such
proof of the authenticity of the signature as the
Corporation or its agents may reasonably require; in
the case of shares not represented by certificates,
the same or similar requirements may be imposed
by the Board of Directors.
Section 4.3. Stock Ledgers. The stock
ledgers of the Corporation, containing the names
and addresses of the stockholders and the number of
shares held by them respectively, shall be kept at
the principal offices of the Corporation or, if the
Corporation employs a Transfer Agent, at the
offices of the Transfer Agent of the Corporation.
Section 4.4. Transfer Agents and
Registrars. The Board of Directors may from time
to time appoint or remove transfer agents and/or
registrars of transfers of shares of stock of the
Corporation, and it may appoint the same person as
both transfer agent and registrar. Upon any such
appointment being made, all certificates
representing shares of capital stock thereafter issued
shall be countersigned by one of such transfer
agents or by one of such registrars of transfers or by
both and shall not be valid unless so countersigned.
If the same person shall be both transfer agent and
registrar, only one counter signature by such person
shall be required.
Section 4.5. Lost, Stolen or Destroyed
Certificates. The Board of Directors or the
Executive Committee or any officer or agent
authorized by the Board of Directors or Executive
Committee may determine the conditions upon
which a new certificate of stock of the Corporation
of any class may be issued in place of a certificate
which is alleged to have been lost, stolen or
destroyed; and may, in its discretion, require the
owner of such certificate or such owner's legal
representative to give bond, with sufficient surety,
to the Corporation and each Transfer Agent, if any,
to indemnify it and each such Transfer Agent
against any and all loss or claims which may arise
by reason of the issue of a new certificate in the
place of the one so lost, stolen or destroyed.
ARTICLE V
CORPORATE SEAL; LOCATION OF OFFICES;
BOOKS; NET ASSET VALUE
Section 5.1. Corporate Seal. The Board
of Directors may provide for a suitable corporate
seal, in such form and bearing such inscriptions as it
may determine. Any officer or director shall have
the authority to affix the corporate seal. If the
Corporation is required to place its corporate seal to
a document, it shall be sufficient to place the word
"(seal)" adjacent to the signature of the authorized
officer of the Corporation signing the document.
Section 5.2. Location of Offices. The
Corporation shall have a principal office in the State
of Maryland. The Corporation may, in addition,
establish and maintain such other offices as the
Board of Directors or any officer may, from time to
time, determine.
Section 5.3. Books and Records. The
books and records of the Corporation shall be kept
at the places, within or without the State of
Maryland, as the directors or any officer may
determine; provided, however, that the original or a
certified copy of the Bylaws, including any
amendments to them, shall be kept at the
Corporation's principal executive office.
Section 5.4. Annual Statement of Affairs.
The President or any other executive officer of the
Corporation shall prepare annually a full and correct
statement of the affairs of the Corporation, to
include a balance sheet and a financial statement of
operations for the preceding fiscal year. The
statement of affairs should be submitted at the
annual meeting of stockholders and, within 20 days
of the meeting, placed on file at the Corporation's
principal office.
Section 5.5. Net Asset Value. The value
of the Corporation's net assets shall be determined
at such times and by such method as shall be
established from time to time by the Board of
Directors.
ARTICLE VI
FISCAL YEAR AND ACCOUNTANT
Section 6.1. Fiscal Year. The fiscal year
of the Corporation, unless otherwise fixed by
resolution of the Board of Directors, shall begin on
the first day of January and shall end on the last day
of December in each year.
Section 6.2. Accountant. The Corporation
shall employ an independent public accountant or a
firm of independent public accountants as its
Accountant to examine the accounts of the
Corporation and to sign and certify financial
statements filed by the Corporation. The
employment of the Accountant shall be conditioned
upon the right of the Corporation to terminate the
employment forthwith without any penalty by vote
of a majority of the outstanding voting securities at
any stockholders' meeting called for that purpose.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
Section 7.1. General. The Corporation
shall indemnify, and, without requiring a
preliminary determination of the ultimate
entitlement to indemnification, shall pay or
reimburse reasonable expenses in advance of final
disposition of a proceeding to, directors or officers
of the Corporation against judgments, penalties,
fines, settlements and expenses to the fullest extent
authorized and in the manner permitted, by
applicable federal and state law.
Section 7.2. Indemnification of Directors
and Officers. The Corporation shall indemnify to
the fullest extent permitted by law (including the
Investment Company Act of 1940, as amended) as
currently in effect or as the same may hereafter be
amended, any person made or threatened to be
made a party to any action, suit or proceeding,
whether criminal, civil, administrative or
investigative, by reason of the fact that such person
or such person's testator or intestate is or was a
director or officer of the Corporation or, while a
director or officer of the Corporation, serves or
served at the request of the Corporation any other
enterprise as a director, officer, trustee, employee or
agent. To the fullest extent permitted by law
(including the Investment Company Act of 1940, as
amended) 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 in advance
of final disposition of a proceeding (without
requiring a preliminary determination of the
ultimate entitlement to indemnification) by the
Corporation promptly upon receipt by it of (i) a
written undertaking by or on behalf 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 and (ii) a written
affirmation by the person of the person's good faith
belief that the standard of conduct necessary for
indemnification by the Corporation has been met.
The Corporation shall have the power, with the
approval of the Board of Directors, to provide
indemnification and advancement of expenses to
any employee or agent of the Corporation. The
rights provided to any person by this Article VII
shall be enforceable against the Corporation by such
person who shall be presumed to have relied upon it
in serving or continuing to serve as a director,
officer, employee or agent as provided above. No
amendment of this Article VII shall impair the
rights of any person arising at any time with respect
to events occurring prior to such amendment. For
purposes of this Article VII, the term "Corporation"
shall include any predecessor of the Corporation
and any constituent corporation (including any
constituent of a constituent) absorbed by the
Corporation in a consolidation or merger; the term
"other enterprises" shall include any corporation,
partnership, joint venture, trust or employee benefit
plan; service "at the request of the Corporation"
shall include service as a director, officer, trustee,
employee or agent of the Corporation which
imposes duties on, or involves services by, such
person with respect to an employee benefit plan, its
participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee
benefit plan shall be deemed to be indemnifiable
expenses; and action by a person with respect to any
employee benefit plan which such person
reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be
deemed to be action not opposed to the best
interests of the Corporation.
Section 7.3. Insurance. Subject to the
provisions of the Investment Company Act of 1940,
as amended, the Corporation, directly, through third
parties or through affiliates of the Corporation, may
purchase, or provide through a trust fund, letter of
credit or surety bond insurance on behalf of any
person who is or was a director or officer of the
Corporation, or who, while a Director or officer of
the Corporation, is or was serving at the request of
the Corporation as a Director or officer, trustee or
agent of another foreign or domestic corporation,
partnership joint venture, trust or other enterprise
against any liability asserted against and incurred by
such person in any such capacity or arising out of
such person's position, whether or not the
Corporation would have the power to indemnify
such person against such liability.
ARTICLE VIII
CUSTODIAN
The Corporation shall have as custodian or
custodians one or more trust companies or banks of
good standing, foreign or domestic, as may be
designated by the Board of Directors, subject to the
provisions of the Investment Company Act of 1940,
as amended, and other applicable laws and
regulations; and the funds and securities held by the
Corporation shall be kept in the custody of one or
more such custodians, provided such custodian or
custodians can be found ready and willing to act,
and further provided that the Corporation and/or the
Custodians may employ such subcustodians as the
Board of Directors may approve and as shall be
permitted by law.
ARTICLE IX
AMENDMENT OF BYLAWS
The Bylaws of the Corporation may be
altered, amended, added to or repealed only by
majority vote of the entire Board of Directors.
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