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BLACKROCK MUNIYIELD FUND, INC.
AMENDED
AND RESTATED
BYLAWS
Effective as of November 2, 2021
BLACKROCK MUNIYIELD FUND, INC.
BYLAWS
These Bylaws are made and adopted pursuant to the Articles
of Incorporation, dated as of September 19, 1991, as from time to time amended
(hereinafter called the “Charter”), of BlackRock MuniYield Fund, Inc.
(the “Fund”).
Definitions. As used in these Bylaws, the following
terms shall have the following meanings:
“12(d) Holder” shall have the meaning set forth in Section
1 of Article II.
“1940 Act” shall mean the Investment Company Act of
1940 and the rules and regulations promulgated thereunder.
“5% Holder” shall have the meaning set forth in Section
1 of Article II.
“Act” shall
have the meaning set forth in Section 4 of Article VI.
“Bylaws” shall mean these Bylaws of the Fund as
amended or restated from time to time by the Directors.
“Code” shall mean the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
“Contested
Election” shall mean any election of Directors in which the number of
persons nominated for election as Directors in accordance with Section 7
of Article I exceeds the number of Directors to be elected, with the
determination that any election of Directors is a Contested Election to be made
by the Secretary or other officer of the Fund prior to the time the Fund mails
its initial proxy statement in connection with such election of Directors. If,
prior to the time the Fund mails its initial proxy statement in connection with
such election of Directors, one or more persons nominated for election as a
Director are withdrawn such that the number of persons nominated for election
as Director no longer exceeds the number of Directors to be elected, such
election shall not be considered a Contested Election.
“Directors” and “Board of Directors” shall
mean the persons duly elected or appointed to the Board of Trustees or Board of
Directors, as the case may be, of the Fund from time to time, so long as they
shall continue in office, and all other persons who at the time in question
have been duly elected or appointed and have qualified as directors or trustees
in accordance with the provisions hereof and are then in office.
“Disabling Conduct” shall have the meaning set
forth in Section 2(a) of Article IV.
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“immediate family member”
shall mean any parent, child, spouse, spouse of a parent, spouse of a child,
brother or sister (including step and adoptive relationships).
“Indemnitee” shall have the meaning set forth in Section 2(a)
of Article IV.
“Independent Director” shall mean a Director that
is not an “interested person” as defined in Section 2(a)(19) of the
1940 Act.
“Independent Non-Party Directors” shall have the
meaning set forth in Section 2(b) of Article IV.
“investment company” shall have the meaning set
forth in Section 1 of Article II.
“Management Director” shall have the meaning set
forth in Section 1 of Article II.
“MGCL”
shall have the meaning set forth in Section 2 of Article II.
“nominated or seated” shall have the meaning set
forth in Section 1 of Article II.
“Non-Management Director” shall have the meaning
set forth in Section 1 of Article II.
“Person” shall mean and include natural persons,
corporations, partnerships, trusts, limited liability companies, associations,
joint ventures and other entities, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
“Prohibited Conduct” shall have the meaning set
forth in Section 1 of Article II.
“Proposed Nominee” shall have the meaning set forth
in Section 7 of Article I.
“Proposed Nominee Associated Person” of any
Proposed Nominee shall mean (A) any Person acting in concert with such Proposed
Nominee, (B) any direct or indirect beneficial owner of Shares owned of record
or beneficially by such Proposed Nominee or Person acting in concert with the
Proposed Nominee and (C) any Person controlling, controlled by or under common
control with such Proposed Nominee or a Proposed Nominee Associated Person.
“proxy access rules” shall have the meaning set
forth in Section 7 of Article I.
“SEC” shall mean the Securities and Exchange
Commission.
“Shareholder Associated Person” of any beneficial
or record shareholder shall mean (A) any Person acting in concert with such
shareholder, (B) any direct or indirect beneficial owner of Shares owned of
record or beneficially by such shareholder or any Person acting in concert with
such shareholder, (C) any Person controlling, controlled by or under common
control with such shareholder or a Shareholder Associated Person and (D) any
member of the immediate family of such shareholder or Shareholder Associated
Person.
“Shares” shall mean (i) if the Fund is organized as
a trust, the units of beneficial interest into which the beneficial interests
in the Fund shall be divided from time to time, (ii) if the Fund is organized
as a corporation, the shares of stock of the Fund and (iii) if the Fund is
organized as a limited liability company, the limited
liability company interests of the Fund, and in each case includes fractions of
Shares as well as whole Shares. In addition, Shares also means any preferred
units of beneficial interest, preferred stock or preferred limited liability
company interests which may be issued from time to time, as described herein.
All references to Shares shall be deemed to be Shares of any or all series or
classes as the context may require.
“special meeting in lieu of an annual meeting”
shall mean a special meeting called by Directors for the purpose of electing
Directors in the event that an annual meeting is not held on or before such
date as may be required by the NYSE Amex, New York Stock Exchange or such other
exchange or trading system on which shares are principally traded, if
applicable.
“Special Counsel” shall mean an “independent
legal counsel” as defined in Reg. §270.0-1(a)(6) promulgated under the 1940
Act, and such counsel shall be selected by (i) a majority of the Independent
Non-Party Directors, (ii) if fewer than 50% of the Independent Directors are
Independent Non-Party Directors, the regular independent counsel to the
Independent Directors, or (iii) if such counsel is not able to act in a
capacity contemplated in these Bylaws for ethical or other reasons, counsel
selected by such regular independent counsel to the Independent Directors.
“Special Meeting Request” shall have the meaning
set forth in Section 3(b)(i) of Article I.
Article I
SHAREHOLDER MEETINGS
Section 1.
Chair. The Chair, if any, shall act as chair at all meetings of
the shareholders. In the Chair’s absence, the Vice Chair, if any, shall act as
chair at the meeting. In the absence of the Chair and the Vice Chair, the
Director or Directors present at each meeting or the Board of Directors may
elect a temporary chair for the meeting, who may be one of Directors.
Section 2.
Annual Meetings of Shareholders. The annual meeting of
shareholders for the election of directors shall be held on such date and at
such time and at such place as shall be designated from time to time by the
Board of Directors. In the event that such a meeting is not held on or before
such date as may be required by the NYSE Amex, New York Stock Exchange or such
other exchange or trading system on which shares are principally traded, if
applicable, a subsequent “special meeting in lieu of an annual meeting” may be
called by the Directors. Any other proper business may be transacted at the
annual meeting of shareholders. Directors may only be elected at an annual
meeting of shareholders or a special meeting in lieu of an annual meeting of
shareholders.
Section 3.
Special Meetings of Shareholders.
(a)
Unless otherwise required by binding law or by the Charter, special
meetings of shareholders, for any purpose or purposes, except for the election
of Directors, may be called by the Board of Directors (or any duly authorized
committee), the Chair or the President and shall be called by the Secretary at
the request in writing by the shareholders of record of not less than a
majority of the outstanding Shares of the Fund or class or series of Shares
having voting rights on the matter. Only such business shall be
conducted at a special meeting as shall be specified in
the notice of meeting (or any supplement thereto).
(b)
(i) Any shareholder of record seeking to request a special meeting shall
send written notice to the Secretary (the “Special Meeting Request”) by
registered mail, return receipt requested, requesting the Secretary to call a
special meeting. Proof of the requesting shareholder’s ownership of Shares at
the time of giving the Special Meeting Request must accompany the requesting
shareholder’s Special Meeting Request. The Special Meeting Request shall set
forth the purpose of the meeting and the matters proposed to be acted on at the
meeting, shall be signed by one or more shareholders of record (or their duly authorized
agents), shall bear the date of signature of each requesting shareholder (or
its duly authorized agent) signing the Special Meeting Request and shall set
forth all information that each such shareholder of record and, with respect to
the beneficial owners of Shares on whose behalf such request is being made,
each such beneficial owner of Shares would be required to disclose in a proxy statement
or other filings required to be made in connection with solicitations of
proxies with respect to the proposed business to be brought before the meeting
pursuant to Section 14 of the Exchange Act, as well as additional
information required by Article I Section 6(d) of these
Bylaws. Upon receiving the Special Meeting Request, the Directors may in their
discretion fix a special meeting date, which need not be the same date as that
requested in the Special Meeting Request.
(ii)
A shareholder of record providing notice of business proposed to be
brought before a special meeting shall further update and supplement such
notice, if necessary, so that the information provided or required to be
provided in such notice pursuant to this Section 3(b) shall be true
and correct as of the record date for determining the shareholders entitled to
receive notice of the special meeting and such update and supplement shall be
delivered to or be mailed and received by the Secretary at the principal
executive offices of the Fund not later than five (5) business days after the
record date for determining the shareholders entitled to receive notice of the
special meeting.
(iii)
The Board of Directors shall determine the validity of any purported
Special Meeting Request received by the Secretary.
(iv)
Within ten (10) days of receipt of a valid Special Meeting Request, the
Secretary shall inform the requesting shareholders of the reasonably estimated
cost of preparing and mailing the notice of meeting (including the Fund’s proxy
materials). The Secretary shall not be required to call a special meeting upon
receipt of a Special Meeting Request and such meeting shall not be held unless
the Secretary receives payment of such reasonably estimated cost prior to the
mailing of any notice of the meeting.
Section 4.
Place of Meetings. Any shareholder meeting, including a special
meeting, shall be held within or without the state in which the Fund was formed
at such place, date and time as the Directors shall designate.
Section
5.
Notice of Meetings. Written notice of all meetings of
shareholders, stating the place, date and time of the meeting, shall be given
by the Secretary by mail to each shareholder of record entitled to vote thereat
at its registered address, mailed at least ten (10) days and not more than
sixty (60) days before the meeting or otherwise in compliance with applicable
binding law. Such notice will also specify the means of remote communications,
if any, by which shareholders and proxyholders may be deemed to be present in
person and vote at such meeting.
Section 6.
Nature of Business at Annual Meetings of Shareholders.
(a)
Only such business (other than nominations for election to the Board of
Directors, which must comply with the provisions of Section 7 of
this Article I) may be transacted at an annual meeting of
shareholders as is either:
(i)
specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors (or any duly authorized committee
thereof),
(ii)
otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
or
(iii)
otherwise properly brought before the annual meeting by any shareholder
of record of the Fund:
(A)
who is a shareholder of record on the date such shareholder gives the
notice provided for in this Section 6 of this Article I and
on the record date for the determination of shareholders entitled to notice of
and to vote at such annual meeting; and
(B)
who complies with the notice procedures set forth in this Section 6
of this Article I.
(b)
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such shareholder of
record must have given timely notice thereof in proper written form to the
Secretary of the Fund.
(c)
To be timely, a record shareholder’s notice to the Secretary must be
delivered to or be mailed and received at the principal executive offices of
the Fund not less than one hundred and twenty (120) days nor more than one
hundred and fifty (150) days prior to the anniversary date of the immediately
preceding annual meeting of shareholders; provided, however, that in the event
that the annual meeting is called for a date that is not within twenty-five
(25) days before or after such anniversary date, notice by the shareholder of
record in order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs. In no event shall the
adjournment or postponement of an annual meeting, or the public announcement of
such an adjournment or postponement, commence a new time period (or extend any
time period) for the giving of a record shareholder’s notice as described
above.
(d)
To be in proper written form, a record shareholder’s notice to the
Secretary must set forth the following information:
(i)
as to each matter such shareholder of record proposes to bring before
the annual meeting, a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, and
(ii)
as to the record shareholder giving notice and the beneficial owner, if
any, on whose behalf the proposal is being made,
(A)
the name and address of such person and of any Shareholder Associated
Person;
(B)
(1) the class or series and number of all Shares which are owned
beneficially or of record by such person and any Shareholder Associated Person,
(2)
the name of each nominee holder of Shares owned beneficially but not of
record by such person or any Shareholder Associated Person, and the number of
such Shares held by each such nominee holder,
(3)
whether and the extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest or other transaction has been
entered into by or on behalf of such person, or any Shareholder Associated
Person, with respect to Shares, and
(4)
whether and the extent to which any other transaction, agreement,
arrangement or understanding (including any short position or any borrowing or
lending of Shares) has been made by or on behalf of such person, or any
Shareholder Associated Person, the effect or intent of any of the foregoing
being to mitigate loss to, or to manage risk or benefit of stock price changes
for, such person, or any Shareholder Associated Person, or to increase or
decrease the voting power or pecuniary or economic interest of such person, or
any Shareholder Associated Person, with respect to Shares;
(C)
a description of all agreements, arrangements, or understandings
(whether written or oral) between or among such person, or any Shareholder
Associated Person, and any other Person or Persons (including their names) in
connection with the proposal of such business and any material interest of such
person or any Shareholder Associated Person, in such business, including any
anticipated benefit therefrom to such person, or any Shareholder Associated
Person;
(D)
a representation that the shareholder of record giving notice intends to
appear in person or by proxy at the annual meeting to bring such business
before the meeting; and
(E)
information relating to such person or any Shareholder Associated Person
that would be required to be disclosed in a proxy statement or other filing
required to be made in connection with the solicitation of proxies by such
person with respect to the proposed business to be brought by such person
before the annual meeting pursuant to Section 14 of the Exchange Act.
(e)
A shareholder of record providing notice of business proposed to be
brought before an annual meeting shall further update and supplement such
notice, if necessary, so that the information provided or required to be
provided in such notice pursuant to this Section 6 of this Article I
shall be true and correct as of the record date for determining the shareholders
entitled to receive notice of the annual meeting and such update and supplement
shall be delivered to or be mailed and received by the Secretary at the
principal executive offices of the Fund not later than five (5) business days
after the record date for determining the shareholders entitled to receive
notice of the annual meeting.
(f)
No business (other than nominations for election to the Board of
Directors, which must comply with the provisions of Section 7 of
this Article I) shall be conducted at the annual meeting of
shareholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 6 of this Article I.
If the chair of an annual meeting determines that business was not properly
brought before the annual meeting in accordance with the foregoing procedures,
the chair shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be transacted.
(g)
Nothing contained in this Section 6 of this Article I
shall be deemed to affect any rights of shareholders to request inclusion of
proposals in the Fund’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act (or any successor provision of law).
Section 7.
Nomination of Directors.
(a)
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Fund. Nominations
of persons for election to the Board of Directors may be made only at any
annual meeting of shareholders, or at any special meeting in lieu of the annual
meeting of shareholders:
(i)
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), or
(ii)
by any shareholder of record, or group of shareholders of record, of the
Fund:
(A)
who is a shareholder or are shareholders of record on the date such
shareholder(s) give the notice provided for in this Section 7 of
this
Article I and on the record date for
the determination of shareholders entitled to notice of and to vote at such
annual meeting or special meeting in lieu of an annual meeting; and
(B)
who complies with the notice procedures set forth in this Section 7
of this Article I.
(b)
In addition to any other applicable requirements, for a nomination to be
made by a shareholder of record, or group of shareholders of record, such
shareholder must have given timely notice thereof in proper written form to the
Secretary of the Fund.
(c)
To be timely, a record shareholder’s notice to the Secretary must be
delivered to or be mailed and received at the principal executive offices of
the Fund:
(i)
in the case of an annual meeting, not less than one hundred and twenty
(120) days nor more than one hundred and fifty (150) days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within twenty-five (25) days before or after such anniversary
date, notice by the shareholder of record in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs;
(ii)
in the case of a special meeting of shareholders in lieu of an annual
meeting, not later than the close of business on the tenth (10th) day following
the day on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first occurs;
and
(iii)
in no event shall the adjournment or postponement of an annual meeting
or such a special meeting in lieu of an annual meeting, or the public
announcement of such an adjournment or postponement, commence a new time period
(or extend any time period) for the giving of a shareholder’s notice as
described above.
(d)
To be in proper written form, a record shareholder’s notice to the
Secretary must set forth the following information:
(i)
as to each person whom the shareholder of record proposes to nominate
for election as a director (a “Proposed Nominee”) and any Proposed
Nominee Associated Person:
(A)
the name, age, business address and residence address of such Proposed
Nominee and of any Proposed Nominee Associated Person;
(B)
the principal occupation or employment of such Proposed Nominee;
(C)
(1) the class or series and number of all Shares which are owned
beneficially or of record, directly or indirectly, by such Proposed Nominee and
any Proposed Nominee Associated Person, and the name and address of the record
holder(s) of such Shares (if different than the beneficial owner(s)) as they
appear on the records of the Fund,
(2)
the name of each nominee holder of Shares owned beneficially but not of
record by such Proposed Nominee or any Proposed Nominee Associated Person, and
the number of such Shares held by each such nominee holder,
(3)
whether and the extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest or other transaction has been
entered into by or on behalf of such Proposed Nominee, or any Proposed Nominee
Associated Person, with respect to Shares,
(4)
whether and the extent to which any other transaction, agreement,
arrangement or understanding (including any short position or any borrowing or
lending of Shares) has been made by or on behalf of such Proposed Nominee, or
any Proposed Nominee Associated Person, the effect or intent of any of the
foregoing being to mitigate loss to, or to manage risk or benefit of share
price changes for, such Proposed Nominee, or any Proposed Nominee Associated
Person, or to increase or decrease the voting power or pecuniary or economic
interest of such Proposed Nominee, or any Proposed Nominee Associated Person,
with respect to the Shares,
(5)
a representation as to whether such Proposed Nominee is an “interested
person,” as defined under Section 2(a)(19) of the 1940 Act and
sufficient information about the Proposed Nominee to permit counsel to the Fund
to confirm such representation, including information with respect to each
relationship set forth in Section 2(a)(19) of the 1940 Act which may cause
such Proposed Nominee to be an interested person of the Fund or a
representation that no such relationship exists;
(6)
information to establish to the satisfaction of the Board of Directors
that the Proposed Nominee satisfies the director qualifications as set out in Section
1 of Article II; and
(D)
any other information relating to such Proposed Nominee or Proposed
Nominee Associated Person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors in an
election
contest pursuant to Section 14 of the Exchange Act (even if an election
contest is not involved); and
(ii)
as to the shareholder of record giving the notice, and the beneficial
owner, if any, on whose behalf the nomination is being made,
(A)
the name and record address of such person and of any Shareholder
Associated Person;
(B)
(1) the class or series and number of all Shares which are owned
beneficially or of record by such person and any Shareholder Associated Person,
(2)
the name of each nominee holder of Shares of the Fund owned beneficially
but not of record by such person or any Shareholder Associated Person, and the
number of Shares held by each such nominee holder,
(3)
whether and the extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest or other transaction has been
entered into by or on behalf of such person, or any Shareholder Associated
Person, with respect to stock of the Fund, and
(4)
whether and the extent to which any other transaction, agreement,
arrangement or understanding (including any short position or any borrowing or
lending of Shares) has been made by or on behalf of such person, or any
Shareholder Associated Person, the effect or intent of any of the foregoing
being to mitigate loss to, or to manage risk or benefit of stock price changes
for, such person, or any Shareholder Associated Person, or to increase or
decrease the voting power or pecuniary or economic interest of such person, or any
Shareholder Associated Person, with respect to Shares;
(C)
a description of all agreements, arrangements, or understandings
(whether written or oral) between such person, or any Shareholder Associated
Person, and any proposed nominee or any other person or persons (including
their names) pursuant to which the nomination(s) are being made by such person,
and any material interest of such person, or any Shareholder Associated Person,
in such nomination, including any anticipated benefit therefrom to such person,
or any Shareholder Associated Person;
(D)
a representation that the shareholder, or group of shareholders, giving
notice intends to appear in person or by proxy at the annual meeting or special
meeting in lieu of an annual meeting to nominate the persons named in its
notice;
(E)
any other information relating to such person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with the solicitation of proxies for election of directors in an
election contest pursuant to Section 14 of the Exchange Act (even if an
election contest is not involved).
(iii)
Such notice must be accompanied by a written consent of each Proposed
Nominee to being named as a nominee and to serve as a director if elected.
(e)
A shareholder of record, or group of shareholders of record, providing
notice of any nomination proposed to be made at an annual meeting or special
meeting in lieu of an annual meeting shall further update and supplement such
notice, if necessary, so that:
(i)
the information provided or required to be provided in such notice
pursuant to this Section 7 of this Article I shall be
true and correct as of the record date for determining the shareholders
entitled to receive notice of the annual meeting or special meeting in lieu of
an annual meeting, and such update and supplement shall be delivered to or be
mailed and received by the Secretary at the principal executive offices of the
Fund not later than five (5) business days after the record date for
determining the shareholders entitled to receive notice of such annual meeting
or special meeting in lieu of an annual meeting; and
(ii)
any subsequent information reasonably requested by the Board of
Directors to determine that the Proposed Nominee has met the director
qualifications as set out in Section 1 of Article II is provided,
and such update and supplement shall be delivered to or be mailed and received
by the Secretary at the principal executive offices of the Fund not later than
five (5) business days after the request by the Board of Directors for subsequent
information regarding director qualifications has been delivered to or mailed
and received by such shareholder of record, or group of shareholders of record,
providing notice of any nomination.
(f)
No person shall be eligible for election as a director of the Fund
unless nominated in accordance with the procedures set forth in this Section 7
of this Article I. If the chair of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the chair
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
(g)
Notwithstanding any provision of this Section 7 of this Article I
to the contrary, a nomination of persons for election to the Board of Directors
may be submitted for inclusion in the Fund’s proxy materials to the extent
required by rules adopted by the SEC providing for such nominations and
inclusion and interpretations thereof (“proxy access rules”), and, if
such nomination is submitted under the proxy access rules, such submission:
(i)
in order to be timely, must be delivered to, or be mailed and received
by, the Secretary at the principal executive offices of the Fund no later than
120
calendar days before the date that the Fund mailed
(or otherwise disseminated) its proxy materials for the prior year’s annual
meeting (or such other date as may be set forth in the proxy access rules for
companies without advance notice bylaws);
(ii)
in all other respects, must be made pursuant to, and in accordance with,
the terms of the proxy access rules, as in effect at the time of the
nomination, or any successor rules or regulations of the SEC then in effect;
and
(iii)
must provide the Fund with any other information required by this Section 7
of this Article I, by applicable binding law, the Charter or a
resolution of the Directors for nominations not made under the proxy access
rules, except to the extent that requiring such information to be furnished is
prohibited by the proxy access rules. The provisions of this paragraph of this Section 7
of this Article I do not provide shareholders of the Fund with any
rights, nor impose upon the Fund any obligations, other than the rights and
obligations set forth in the proxy access rules.
Section 8.
Conduct of Meetings. The Board of Directors of the Fund may adopt
by resolution such rules and regulations for the conduct of any meeting of the
shareholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the chair
of any meeting of the shareholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chair, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chair of the meeting, may include, without
limitation, the following: (a) the establishment of an agenda or order of
business for the meeting; (b) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (c) rules and
procedures for maintaining order at the meeting and the safety of those
present; (d) limitations on attendance at and participation in the meeting to
shareholders, their duly authorized and constituted proxies or such other
persons as the chair of the meeting shall determine; (e) restrictions on entry
to the meeting after the time fixed for the commencement thereof; (f)
limitations on the time allotted to questions or comments by shareholders; and
(g) the extent to which, if any, other participants are permitted to speak.
Section 9.
Postponements; Adjournments. The Board of Directors may, prior to
a meeting of shareholders being convened, postpone such meeting from time to
time to a date not more than 120 days after the original record date. The chair
of any meeting of the shareholders may adjourn the meeting from time to time to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place, if any, thereof and the means of
remote communications, if any, by which shareholders and proxyholders may be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the adjourned meeting, the
Fund may transact any business which might have been transacted at the original
meeting. Any adjourned meeting may be held as adjourned one or more times
without further notice not later than one hundred and twenty (120) days after
the record date. If after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting in accordance with the
requirements of Section 5 of this Article I shall be given
to each shareholder of record entitled to vote at the meeting and each other
shareholder entitled to notice of the meeting.
Section
10.
Record Date.
(a)
For the purposes of determining the shareholders who are entitled to
vote at or otherwise entitled to notice of any meeting, the Directors may,
without closing the transfer books, fix a date not more than sixty (60) nor
less than ten (10) days prior to the date of such meeting of shareholders as a
record date for the determination of the Persons to be treated as shareholders
of record for such purposes. The record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Directors. If no
record date is fixed by the Directors and the stock transfer books are not
closed, the record date for determining shareholders entitled to notice of or
to vote at a meeting of the shareholders shall be the later of the close of
business on the day immediately preceding the day on which notice is given or
the thirtieth (30th) day before the meeting. A determination of shareholders entitled
to notice of or to vote at a meeting of the shareholders of record shall apply
to any adjournment of the meeting.
(b)
In order that the Fund may determine the shareholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the
Directors. If no record date has been fixed by the Directors and no prior
action by the Directors is required by applicable binding law or the Charter to
take such action, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Fund by delivery to its registered
office in the state in which the Fund was formed, its resident agent, its
principal place of business, or an officer or agent of the Fund having custody
of the book in which proceedings of meetings of the shareholders are recorded.
Delivery made to the Fund’s registered office shall be by hand or by certified
or registered mail, return receipt requested.
If no record date has been fixed by the Directors and
prior action by the Directors is required by applicable binding law or the
Charter, the record date for determining shareholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Directors adopts the resolution taking such prior
action.
Section 11.
Voting.
(a)
Shareholders shall have no power to vote on any matter except matters on
which a vote of shareholders is required by applicable binding law, the Charter
or resolution of the Directors.
(b)
Subject to any provision of applicable binding law, the Charter, these
Bylaws or a resolution of the Directors specifying a greater or a lesser vote
requirement for the transaction of any item of business that properly comes
before any meeting of shareholders (i) with respect to the election of
directors, other than a Contested Election, the affirmative vote of a plurality
of the Shares for which votes were cast at any meeting at which a quorum is
present shall be the act of the shareholders with respect to such matter,
(ii) with respect to a Contested Election, the
affirmative vote of a majority of the Shares outstanding and entitled to vote
with respect to such matter at such meeting shall be the act of the
shareholders with respect to such matter, (iii) for all other items of
business, the affirmative vote of a majority of the Shares represented in
person or by proxy at any meeting at which a quorum is present shall be the act
of the shareholders with respect to such matter(s), and (iv) where a separate
vote of one or more classes or series of Shares is required on any matter, the
affirmative vote of a plurality of Shares of such class or series of Shares
represented in person or by proxy at any meeting at which a quorum is present,
a majority of the Shares of such class or series of Shares outstanding and
entitled to vote, or a majority of the Shares of such class or series of Shares
represented in person or by proxy at any meeting at which a quorum is present,
as required by the preceding clauses of this paragraph, shall be the act of the
shareholders of such class or series with respect to such matter.
(c)
Only shareholders of record shall be entitled to vote. Each full Share
shall be entitled to one vote and fractional Shares shall be entitled to a vote
of such fraction. When any Share is held jointly by several persons, any one of
them may vote at any meeting in person or by proxy in respect of such Share,
but if more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall be cast in accordance with applicable binding
law.
(d)
There shall be no cumulative voting in the election or removal of
Directors.
Section 12.
Quorum. The presence in person or by proxy of the holders of
Shares entitled to cast one-third of the votes entitled to be cast shall
constitute a quorum at any meeting of shareholders, except with respect to any
matter which requires approval by a separate vote of one or more classes or
series of Shares, in which case the presence in person or by proxy of the
holders of Shares entitled to cast one-third of the votes entitled to be cast
by each class or series entitled to vote as a separate class or series shall
constitute a quorum. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the chair of the meeting shall have power to adjourn the meeting from time to
time, in the manner provided in Section 9 of this Article I,
until a quorum shall be present or represented.
Section 13.
Proxies.
(a)
At any meeting of shareholders, any holder of Shares entitled to vote
thereat may vote by properly executed proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Fund as the Directors or
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Directors,
proxies may be solicited in the name of one or more Directors or one or more of
the officers or employees of the Fund. No proxy shall be valid after the
expiration of 11 months from the date thereof, unless otherwise provided in the
proxy. A proxy purporting to be executed by or on behalf of a shareholder shall
be deemed valid unless challenged at or prior to its exercise, and the burden
of proving invalidity shall rest on the challenger. If the holder of
any such Share is a minor or a person of unsound mind,
and subject to guardianship or to the legal control of any other person as
regards the charge or management of such Share, such person may vote by their
guardian or such other person appointed or having such control, and such vote
may be given in person or by proxy.
(b)
Without limiting the manner in which a shareholder may authorize another
person or persons to act for such shareholder as proxy, the following shall
constitute a valid means by which a shareholder may grant such authority:
(i)
A shareholder may execute a writing authorizing another person or
persons to act for such shareholder as proxy. Execution may be accomplished by
the shareholder or such shareholder’s authorized officer, director, employee or
agent signing such writing or causing such person’s signature to be affixed to
such writing by any reasonable means, including, but not limited to, by
facsimile signature.
(ii)
A shareholder may authorize another person or persons to act for such
shareholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be
the holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
shareholder. If it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information on which
they relied.
(c)
Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission authorizing another person or persons to act as
proxy for a shareholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing
or transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section 14.
Inspectors of Election. In advance of any meeting of the
shareholders, the Board of Directors, by resolution, may appoint one or more
inspectors to act at the meeting and make a written report thereof. If
inspectors of election are not so appointed, the person acting as chair of any
meeting of shareholders may, and on the request of any shareholder or
shareholder proxy shall, appoint inspectors of election of the meeting. One or
more other persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of the shareholders, the chair of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by applicable
binding law, inspectors may be officers, employees or agents of the Fund. Each
inspector, before entering upon the discharge of the duties of inspector, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such inspector’s ability. The
inspector shall have the duties prescribed by law or
assigned by the chair of the meeting and shall take charge of the polls and,
when the vote is completed, shall make a certificate of the result of the vote
taken and of such other facts as may be required by applicable binding law.
Section 15.
Shareholder Action by Written Consent.
(a)
Any action required or permitted to be taken at any annual or special
meeting of shareholders of the Fund may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by all shareholders entitled to vote
on the matter.
(b)
Any such consent shall be delivered to the Fund by delivery to its
registered office in the state in which the Fund was formed, its resident
agent, its principal place of business, or an officer or agent of the Fund
having custody of the book in which proceedings of meetings of the shareholders
are recorded. Delivery made to the Fund’s registered office shall be by hand or
by certified or registered mail, return receipt requested. Every written
consent shall bear the date of signature of each shareholder who signs the
consent and no written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the earliest dated
consent delivered in the manner required by this Article I Section 15
to the Fund, written consents signed in accordance with Section 15(a)
of this Article I by holders to take action are delivered to the Fund
by delivery to its registered office in the state in which the Fund was formed,
its resident agent, its principal place of business, or an officer or agent of
the Fund having custody of the book in which proceedings of meetings of the
shareholders are recorded. Any copy, facsimile or other reliable reproduction
of a consent in writing may be substituted or used in lieu of the original
writing for any and all purposes for which the original writing could be used,
provided that such copy, facsimile or other reproduction shall be a complete
reproduction of the entire original writing.
Article II
DIRECTORS
Section 1.
Number and Qualification. Prior to a public offering of Shares
there may be a sole Director. Thereafter, the number of Directors shall be
determined by a written instrument signed by a majority of the Directors then
in office, provided that the number of Directors shall be no less than the
lower limit for Directors as stated in the Charter and no more than fifteen
(15) and the Directors shall satisfy the requirements set forth below in this Section
1 of this Article II. No reduction in the number of Directors shall
have the effect of removing any Director from office prior to the expiration of
the Director’s term. Directors need not own Shares and may succeed themselves
in office. Directors who have such present or former associations with the
Fund’s investment adviser as may cause such person not to be an Independent
Director are referred to as “Management Directors”. Each Director who is
not a Management Director is referred to as a “Non-Management Director.”
(a)
After the offering of Shares, only persons satisfying the following
qualification requirements applicable to all Directors may be nominated,
elected, appointed, qualified or seated (“nominated or seated”) to serve
as directors:
(i)
An individual nominated or seated as a Director shall be at least
twenty-one (21) years of age and not older than the younger of (A) the
mandatory retirement age determined from time to time by the Directors or a
committee of the Directors and (B) eighty (80) years of age, in each case at
the time the individual is nominated or seated, and not under legal disability;
(ii)
An individual nominated or seated as a Director shall, at the time the
individual is nominated or seated, serve as a Director of no more than 5
companies having securities registered under the Exchange Act (investment
companies having the same investment adviser or investment advisers affiliated
through a control relationship shall all be counted as a single company for this
purpose);
(iii)
Except as set forth in Section 1 of this Article II, an
individual nominated or seated as a Director shall not be an employee, officer,
partner, member, director or 5% or greater shareholder in any investment
adviser (other than the Fund’s investment adviser or any investment adviser
affiliated with the Fund’s investment adviser), collective investment vehicle
primarily engaged in the business of investing in “investment securities”
(as defined in the 1940 Act) (an “investment company”) or entity
controlling or controlled by any investment adviser (other than the Fund’s
investment adviser or any investment adviser affiliated with the Fund’s
investment adviser) or investment company unless a majority of the Board of
Directors shall have determined by resolution that such relationship will not
present undue conflicts or impede either the ability of the individual to
discharge the duties of a Director or the free flow of information between the
Fund’s investment adviser and the Board of Directors;
(iv)
An individual nominated or seated as a Director shall not have been
charged (unless such charges were dismissed or the individual was otherwise
exonerated) with a criminal offense involving moral turpitude, dishonesty or
breach of trust, or have been convicted or have pled guilty or nolo contendere
with respect to a felony under the laws of the United States or any state
thereof;
(v)
An individual nominated or seated as a Director shall not be and shall
not have been subject to any censure, order, consent decree (including consent
decrees in which the respondent has neither admitted nor denied the findings)
or adverse final action of any federal, state or foreign governmental or
regulatory authority (including self-regulatory organizations), barring or suspending
such individual from participation in or association with any
investment-related business or restricting such individual’s activities with
respect to any investment-related business (collectively, “Prohibited
Conduct”), nor shall an individual nominated or seated as a Director be the
subject of any investigation or proceeding that could reasonably be expected to
result in an individual nominated or seated as a Director failing to satisfy
the requirements of this paragraph, nor shall any individual
nominated or seated as a Director be or have engaged in
any conduct which has resulted in, or could have reasonably been expected or
would reasonably be expected to result in, the SEC censuring, placing
limitations on the activities, functions, or operations of, suspending, or
revoking the registration of any investment adviser under Section 203(e)
or (f) of the Investment Advisers Act of 1940;
(vi)
An individual nominated or seated as a Director shall not be and shall
not have been the subject of any of the ineligibility provisions contained in Section
9(b) of the 1940 Act that would permit, or could reasonably have been expected
or would reasonably be expected to permit the SEC by order to prohibit,
conditionally or unconditionally, either permanently or for a period of time,
such individual from serving or acting as an employee, officer, director,
member of an advisory board, investment adviser or depositor of, or principal
underwriter for, a registered investment company or affiliated person (as
defined in Section 2(a)(3) of the 1940 Act) of such investment adviser,
depositor, or principal underwriter; and
(vii)
An individual nominated or seated as a Director shall not be and shall
not have been the subject of any of the ineligibility provisions contained in Section
9(a) of the 1940 Act that would result in, or could have reasonably been
expected or would reasonably be expected to result in such individual or a
company of which such individual is an affiliated person (as defined in Section 2(a)(3)
of the 1940 Act) being ineligible to serve or act in the capacity of employee,
officer, director, member of an advisory board, investment adviser, or
depositor of any registered investment company, or principal underwriter for
any registered investment company, registered unit investment trust, or
registered face-amount certificate company.
(b)
After the offering of Shares, only persons satisfying the following
additional qualification requirements applicable to all Non-Management
Directors shall be nominated or seated as Non-Management Directors:
(i)
An individual nominated or seated as a Non-Management Director may not
be an “interested person” of the Fund as defined under Section 2(a)(19)
of the 1940 Act;
(ii)
An individual nominated or seated as a Non-Management Director may not
directly or indirectly own, control or hold with the power to vote, or be a
member of a group of shareholders party to an agreement, arrangement or
practice for sharing information or decisions concerning shareholder actions or
the acquisition, disposition or voting of Shares, who together directly or
indirectly own, control or hold with the power to vote, 5% or more of the
outstanding shares of any class of Shares of the Fund (each such person and
each member of such a group, a “5% Holder”), may not control or act in
concert with a 5% Holder, and may not be an immediate family member of a 5%
Holder or of a person who controls or acts in concert with a 5% Holder;
(iii)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, be employed or have
been employed within the last year by any 5% Holder or any person who controls,
is controlled by, is under common control with or acts in concert with a 5%
Holder;
(iv)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, have accepted directly
or indirectly, during the year of the election for which such individual is
nominated or seated or during the immediately preceding calendar year, any consulting,
advisory, or other compensatory fee from any 5% Holder or from any person who
controls, is controlled by, is under common control with or acts in concert
with any 5% Holder;
(v)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, be an officer,
director, general partner or managing member (or person performing similar
functions) of any 5% Holder or of any person who controls, is controlled by, is
under common control with or acting in concert with a 5% Holder;
(vi)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, be employed or
employed within the last year by any investment company or any company or companies
controlled by an investment company which in the aggregate own (A) more than
three percent (3%) of the outstanding voting Shares of the Fund, (B) securities
issued by the Fund having an aggregate value in excess of five percent (5%) of
the total assets of such investment company and any company or companies
controlled by such investment company, (C) securities issued by the Fund and by
all other investment companies having an aggregate value in excess of ten
percent (10%) of the total assets of the investment company making such
investment and any company or companies controlled by the investment company
making such investment, or (D) together with other investment companies having
the same investment adviser and companies controlled by such investment
companies, more than ten percent (10%) of the total outstanding Shares of the
Fund (an investment company making such investment(s) and any company or
companies controlled by it in the aggregate owning securities in excess of the
amounts set forth in (A), (B), (C) or (D) being referred to as a “12(d)
Holder”), or by any person who controls, is controlled by, under common
control with or acts in concert with a 12(d) Holder;
(vii)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, have accepted directly
or indirectly, during the year of the election for which such individual is
nominated or seated, or during the immediately preceding calendar year, any
consulting, advisory, or other compensatory fee from any 12(d) Holder or from
any person who controls, is controlled by, is under common control with or acts
in concert with any 12(d) Holder;
(viii)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, be an officer,
director, partner or member (or person performing similar functions) of any
12(d) Holder or of any person who controls, is controlled by, is under common
control with or acting in concert with a 12(d) Holder; and
(ix)
An individual nominated or seated as a Non-Management Director may not,
and any immediate family member of such nominee may not, control or act in
concert with any 12(d) Holder or any person who controls, is controlled by, is
under common control with or acting in concert with a 12(d) Holder.
Section 2.
Term of Office. The Fund has elected to be subject to the
provisions of Section 3-803 of the Maryland General Corporation Law (the “MGCL”),
which election shall be effective as of the effective date set forth in the
applicable Articles Supplementary filed with the State of Maryland. Pursuant to
this election, the Board of Directors was divided into three (3) classes,
designated Class I, Class II, and Class III. To the extent possible, each class
shall have the same number of Directors. The initial number of Class I
Directors shall be five (5), the initial number of Class II Directors shall be
four (4), and the initial number of Class III Directors shall be four (4).
Within the limits above specified, the Directors in each class were initially
determined and designated by resolution of the Board of Directors. The term of
office of the Class III Directors shall continue until the date of the 2022
annual meeting of shareholders and until their successors are elected and
qualify. The term of office of the Class I Directors shall continue until the
date of the 2023 annual meeting of shareholders and until their successors are
elected and qualify. The term of office of the Class II Directors shall
continue until the date of the 2024 annual meeting of shareholders and until
their successors are elected and qualify. Upon expiration of the term of office
of each class as set forth above, the successors of the class to the class of
Directors whose term expires at each annual meeting of shareholders shall be
elected to hold office for a term continuing until the annual meeting of
shareholders held in the third year following the year of their election and
until their successors are elected and qualify. The term of office of a Director
shall terminate and a vacancy shall occur in the event of the death,
resignation, removal, bankruptcy, adjudicated incompetence or other incapacity
to perform the duties of the office of the Director.
Section 3.
Resignation and Removal. Any of the Directors may resign (without
need for prior or subsequent accounting) by an instrument in writing signed by
such Director and delivered or mailed to the Directors, the Chair, if any, the
President, or the Secretary and such resignation shall be effective upon such
delivery, or at a later date according to the terms of the instrument. Any of
the Directors may be removed, provided the aggregate number of Directors after
such removal shall not be less than the minimum number set forth in the
Charter, only by the proportion of votes of the shareholders or Directors, as
applicable, that are set forth in the Charter as the required proportion of
votes for the removal of a Director, and with or without cause as may be
permitted by the Charter or as required by applicable binding law. Upon the
resignation or removal of a Director, each such resigning or removed Director
shall execute and deliver to the Fund such documents as may be required by
applicable binding law or the Charter or as may be requested by the remaining
Directors as being in the best interests of the Fund and the shareholders. Upon
the incapacity or death of any Director, such Director’s legal representative
shall execute
and deliver to the Fund on such
Director’s behalf such documents as the remaining Directors shall require as
provided in the preceding sentence.
Section 4.
Vacancies. The Fund elects to be subject to the provisions of Section
3-804(c) of the MGCL, subject to applicable requirements of the 1940 Act and
the right of the shareholders of a class or series to elect additional
Directors in accordance with the Charter. Each vacancy on the Board of
Directors that results from (a) an increase in the size of the Board of
Directors or (b) the death, resignation, or removal of a Director may be filled
by an individual having the qualifications described in this Article II
made only by the affirmative vote of a majority of the remaining Directors in
office, even if the remaining Directors do not constitute a quorum. Any
Director elected to fill a vacancy shall serve until the next annual meeting of
Shareholders and until a successor is elected and qualifies.
Whenever a vacancy in the number of Directors shall occur,
until such vacancy is filled as provided herein, the Directors in office,
regardless of their number, shall have all the powers granted to the Directors
and shall discharge all the duties imposed upon the Directors.
Section 5.
Meetings.
(a)
Meetings of the Directors shall be held from time to time upon the call
of the Chair, if any, the Vice Chair, if any, the President or a majority of
the Directors. Regular meetings of the Directors may be held without call or
notice at a time and place fixed by the Bylaws or by resolution of the
Directors. Notice of any other meeting shall be given by the Secretary and shall
be delivered to the Directors orally or by email not less than 24 hours, or
otherwise in writing not less than 72 hours, before the meeting, but may be
waived in writing by any Director either before or after such meeting.
Directors shall provide the Secretary with an email address to which the
Secretary may send communications relating to the Fund. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting has not been
properly called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of the Board of Directors need be stated in the notice
or waiver of notice of such meeting, and no notice need be given of action
proposed to be taken by written consent. Whenever written notice is required by
binding law, the Charter or these Bylaws to be given to any Director, such
notice may be given by mail, addressed to such Director at such person’s
address as it appears on the records of the Fund, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited with a nationally recognized overnight delivery service, or by
facsimile or email to a location provided by the Director to the Fund.
(b)
The Secretary of the Fund shall act as secretary at each meeting of the
Board of Directors and of each committee thereof. In case the Secretary shall
be absent from any meeting of the Board of Directors or of any committee
thereof, an Assistant Secretary or a person appointed by the chair of the
meeting shall act as secretary of the meeting. Notwithstanding the foregoing,
the members of each committee of the Board of Directors may appoint any person
to act as secretary of any meeting of such committee and the Secretary of the
Fund may, but need not if such committee so elects, serve in such capacity.
(c)
Unless otherwise provided by applicable binding law, all or any one or more
Directors may participate in a meeting of the Directors or any committee
thereof by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other;
participation in a meeting pursuant to any such communications system shall
constitute presence in person at such meeting.
Section 6.
Quorum. Any time there is more than one Director, a quorum for
all meetings of the Board of Directors shall be a majority of the Directors. If
a quorum shall not be present at any meeting of the Board of Directors or any
committee thereof, the Directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting of the time
and place of the adjourned meeting, until a quorum shall be present. With
respect to actions of the Directors and any committee of the Directors,
Directors who are not Independent Directors in any action to be taken may be
counted for quorum purposes under this Article II Section 6 and
shall be entitled to vote to the extent not prohibited by the 1940 Act.
Section 7.
Required Vote. Unless otherwise required or permitted in the
Charter or by applicable binding law (including the 1940 Act), any action of
the Board of Directors may be taken at a meeting at which a quorum is present
by vote of a majority of the Directors present.
Section 8.
Committees.
(a)
The Board of Directors may designate one or more committees of its
members. Each member of a committee must meet the requirements for membership,
if any, imposed by applicable binding law and the rules and regulations of any
securities exchange or quotation system on which the securities of the Fund are
listed or quoted for trading. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. Subject to the rules
and regulations of any securities exchange or quotation system on which the
securities of the Fund are listed or quoted for trading, in the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another qualified member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any Director serving on a committee of the Board of
Directors may be removed from such committee at any time by the Board of
Directors or by any committee to which such authority is delegated.
(b)
Any committee, to the extent permitted by law and provided in the
resolution or charter establishing such committee, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Fund, and may authorize the seal of the Fund, if
any, to be affixed to all papers which may require it.
(c)
Any committee of the Directors, including an executive committee, if
any, may act with or without a meeting. Any time there is more than one
Director on a committee, unless otherwise required by the committee’s charter,
a quorum for all meetings
of any committee shall be a
majority of the members thereof. Unless otherwise required by applicable
binding law (including the 1940 Act) or provided in the Charter, these Bylaws
or the committee’s charter, any action of any such committee may be taken at a
meeting at which a quorum is present by vote of a majority of the members
present. Each committee shall keep regular minutes and report to the Board of
Directors when required.
(d)
Notwithstanding anything to the contrary contained in this Article II
Section 8, the resolution of the Board of Directors establishing
any committee of the Board of Directors or the charter of any such committee
may establish requirements or procedures relating to the governance or
operation of such committee that are different from, or in addition to, those
set forth in these Bylaws and, to the extent that there is any inconsistency
between these Bylaws and any such resolution or charter, the terms of such
resolution or charter shall be controlling.
Section 9.
Director Action by Written Consent. Subject to the provisions of
the 1940 Act, any action which may be taken by Directors by vote may be taken
without a meeting if all the members of the Board of Directors or of the
respective committee, as the case may be, required for approval of such action
at a meeting of the Directors or such committee consent to the action in
writing or electronic transmission and the written consents or electronic
transmission are filed with the records of the meetings of Directors. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Directors or the committee.
Section 10.
Chair; Records. The Chair, if any, shall act as chair at all
meetings of the Directors. In absence of the Chair, the Vice Chair, if any,
shall act as chair at the meeting. In the absence of the Chair and the Vice
Chair, the Directors present shall elect one of their number to act as
temporary chair. The results of all actions taken at a meeting of the
Directors, or by written consent of the Directors, shall be recorded by the Secretary
or, in the absence of the Secretary, an Assistant Secretary or such other
person appointed by the Board of Directors as the meeting secretary.
Section 11.
Delegation. Unless otherwise provided in the Charter or these
Bylaws and except as provided by applicable binding law, the Directors shall
have the power to delegate from time to time to such of their number or to one
or more officers, employees or agents of the Fund the doing of such things,
including any matters set forth in the Charter or these Bylaws, and the
execution of such instruments in the name of the Fund.
Section 12.
Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
for service as director, payable in cash or securities. Members of special or
standing committees may be allowed like compensation for service as committee
members.
Section 13.
Governance. The Board of Directors may from time to time require
all its members (including any individual nominated to serve as a Director) to
agree in writing as to matters of corporate governance, business ethics and
confidentiality while such persons serve as a Director, such agreement to be on
the terms and in a form determined satisfactory by the Board of
Directors, as amended and supplemented from time to time
in the discretion of the Board of Directors.
Article III
OFFICERS
Section 1.
Officers of the Fund. The Directors shall elect a President, a
Secretary and a Treasurer and may elect a Chair and a Vice Chair. Any Chair or
Vice Chair shall, and the President, Secretary and Treasurer may, but need not,
be a Director. No other officer of the Fund need be a Director. Any two or more
of the offices may be held by the same Person, except that (a) the same person
may not be both President and Vice President and (b) after the Fund’s initial
public offering the same person may not be both President and Secretary.
Section 2.
Election and Tenure. The Chair, if any, and Vice Chair, if any, President,
Secretary, Treasurer and such other officers as the Directors from time to time
may elect shall serve at the pleasure of the Directors or until their
successors have been duly elected and qualified. The Directors may fill a
vacancy in office or add any additional officers at any time.
Section 3.
Removal and Resignation of Officers. Any officer may be removed
at any time, with or without cause, by action of a majority of the Directors.
This provision shall not prevent the making of a contract of employment for a
definite term with any officer and shall have no effect upon any cause of
action which any officer may have as a result of removal in breach of a
contract of employment. Any officer may resign at any time by notice in writing
signed by such officer and delivered or mailed to the Chair, if any, President,
or Secretary, and such resignation shall take effect immediately upon receipt
by the Chair, if any, President, or Secretary, or at a later date according to
the terms of such notice in writing.
Section 4.
Chair of the Board of Directors. The Chair of the Board of
Directors, if there be one, shall preside at all meetings of the shareholders
and of the Board of Directors. The Chair of the Board of Directors shall also
perform such other duties and may exercise such other powers as may from time
to time be assigned by these Bylaws or by the Board of Directors.
Section 5.
Vice Chair of the Board of Directors. The Vice Chair shall
perform the duties of the Chair when the Chair is not able to fulfill those
duties for any reason.
Section 6.
President. The President shall, subject to the control of the
Directors, have general supervision, direction and control of the business of
the Fund and of its employees and shall exercise such general powers of
management as are usually vested in the office of President of a Fund. The
President shall have such further authorities and duties as the Directors shall
from time to time determine. In the absence or disability of the President, the
Directors shall delegate authority to another officer of the Fund to perform
all of the duties of the President, and when so acting shall have all the
powers of and be subject to all of the restrictions upon the President.
Section 7.
Secretary. The Secretary shall maintain the minutes of all
meetings of, and record all votes of, shareholders, Directors and committees of
Directors, if any. The Secretary shall be custodian of the seal of the Fund, if
any, and the Secretary (and any other person so authorized by the Directors)
may affix the seal, or if permitted, facsimile thereof, to any instrument
executed
by the Fund which would be sealed by a
business corporation in the state in which the Fund was formed executing the
same or a similar instrument and shall attest the seal and the signature or
signatures of the officer or officers executing such instrument on behalf of
the Fund. The Secretary shall also perform any other duties commonly incident
to such office in a business corporation in the state in which the Fund was
formed and shall have such other authorities and duties as the Directors shall
from time to time determine, including but not limited to calling special
meetings of shareholders and providing written notice of all meetings of
shareholders.
Section 8.
Treasurer and/or Chief Financial Officer. The Directors can
nominate a Treasurer and/or Chief Financial Officer, and, except as otherwise
directed by the Directors, such officer(s) shall have the general supervision
of the monies, funds, securities, notes receivable and other valuable papers
and documents of the Fund, and shall have and exercise under the supervision of
the Directors and of the President all powers and duties normally incident to
the office. Such officer(s) may endorse for deposit or collection all notes,
checks and other instruments payable to the Fund or to its order. Such
officer(s) shall deposit all funds of the Fund in such depositories as the
Directors shall designate. Such officer(s) shall be responsible for such
disbursement of the funds of the Fund as may be ordered by the Directors or the
President. Such officer(s) shall keep accurate account of the books of the
Fund’s transactions which shall be the property of the Fund, and which together
with all other property of the Fund in such officer(s)’s possession, shall be
subject at all times to the inspection and control of the Directors. Unless the
Directors shall otherwise determine, such officer(s) shall be the principal
accounting officer(s) of the Fund and shall also be the principal financial
officer(s) of the Fund. Such officer(s) shall have such other duties and
authorities as the Directors shall from time to time determine. Notwithstanding
anything to the contrary herein contained, the Directors may authorize any
adviser, administrator, manager or transfer agent to maintain bank accounts and
deposit and disburse funds of any series of the Fund on behalf of such series.
Section 9.
Other Officers and Duties. The Directors may elect or appoint, or
may authorize the President to appoint, such other officers or agents with such
powers as the Directors may deem to be advisable. Assistant officers shall act
generally in the absence of the officer whom they assist and shall assist that
officer in the duties of the office. Each officer, employee and agent of the
Fund shall have such other duties and authority as may be conferred upon such
person by the Directors or delegated to such person by the President. If the
Directors elect or appoint, or authorize the President to appoint, a chief
executive officer of the Fund, such chief executive officer, subject to
direction of the Directors, shall have power in the name and on behalf of the
Fund to execute any and all loans, documents, contracts, agreements, deeds,
mortgages, registration statements, applications, requests, filings and other
instruments in writing, and to employ and discharge employees and agents of the
Fund. Unless otherwise directed by the Directors, the chief executive officer
shall have full authority and power, on behalf of all of the Directors, to
attend and to act and to vote, on behalf of the Fund at any meetings of
business organizations in which the Fund holds an interest, or to confer such
powers upon any other persons, by executing any proxies duly authorizing such
persons. The chief executive officer shall have such further authorities and
duties as the Directors shall from time to time determine. In the absence or
disability of the chief executive officer, the Directors shall delegate
authority to another officer of the Fund to perform all of the duties of the
chief executive officer, and when so acting shall have all the powers of and be
subject to all of the restrictions upon the chief executive officer.
Article IV
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
Section 1.
No Personal Liability of Directors or Officers. No Director,
advisory board member or officer of the Fund shall be subject in such capacity
to any personal liability whatsoever to any Person, save only liability to the
Fund or its shareholders arising from bad faith, willful misfeasance, gross
negligence or reckless disregard for his or her duty to such Person; and,
subject to the foregoing exception, all such Persons shall look solely to the
assets of the Fund for satisfaction of claims of any nature arising in
connection with the affairs of the Fund. If any Director, advisory board member
or officer, as such, of the Fund, is made a party to any suit or proceeding to
enforce any such liability, subject to the foregoing exception, such person
shall not, on account thereof, be held to any personal liability. Any repeal or
modification of the Charter or this Article IV Section 1 shall
not adversely affect any right or protection of a Director, advisory board
member or officer of the Fund existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal
or modification.
Section 2.
Mandatory Indemnification.
(a)
The Fund hereby agrees to indemnify each person who is or was a
Director, advisory board member or officer of the Fund (each such person being
an “Indemnitee”) to the full extent permitted under the Charter. In
addition, the Fund may provide greater but not lesser rights to indemnification
pursuant to a contract approved by at least a majority of Directors between the
Fund and any Indemnitee. Notwithstanding the foregoing, no Indemnitee shall be
indemnified hereunder against any liability to any person or any expense of
such Indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties involved in
the conduct of the Indemnitee’s position (the conduct referred to in such
clauses (i) through (iv) being sometimes referred to herein as “Disabling
Conduct”). Furthermore, with respect to any action, suit or other
proceeding voluntarily prosecuted by any Indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action, suit
or other proceeding by such Indemnitee (A) was authorized by a majority of the
Directors or (B) was instituted by the Indemnitee to enforce his or her rights
to indemnification hereunder in a case in which the Indemnitee is found to be
entitled to such indemnification.
(b)
Notwithstanding the foregoing, unless otherwise provided in any
agreement relating to indemnification between an Indemnitee and the Fund, no
indemnification shall be made hereunder unless there has been a determination
(i) by a final decision on the merits by a court or other body of competent
jurisdiction before whom the issue of entitlement to indemnification hereunder
was brought that such Indemnitee is entitled to indemnification hereunder or,
(ii) in the absence of such a decision, by (A) a majority vote of a quorum of
those Directors who are both Independent Directors and not parties to the
proceeding (“Independent Non-Party Directors”), that the Indemnitee is
entitled to indemnification hereunder, or (B) if such quorum is not obtainable
or even if obtainable, if such majority so directs, a Special Counsel in a
written opinion concludes that the Indemnitee should be entitled to
indemnification hereunder.
(c)
Subject to any limitations provided by the 1940 Act and the Charter, the
Fund shall have the power and authority to indemnify and provide for the
advance payment of expenses to employees, agents and other Persons providing
services to the Fund or serving in any capacity at the request of the Fund to
the full extent permitted for corporations organized under the corporations
laws of the state in which the Fund was formed, provided that such
indemnification has been approved by a majority of the Directors.
(d)
Any repeal or modification of the Charter or Section 2 of
this Article IV shall not adversely affect any right or protection of a
Director, advisory board member or officer of the Fund existing at the time of
such repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
Section 3.
Good Faith Defined; Reliance on Experts. For purposes of any
determination under this Article IV, a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be in
the best interests of the Fund, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person’s conduct
was unlawful, if such person’s action is based on the records or books of
account of the Fund, or on information supplied to such person by the officers
of the Fund in the course of their duties, or on the advice of legal counsel
for the Fund or on information or records given or reports made to the Fund by
an independent certified public accountant or by an appraiser or other expert
or agent selected with reasonable care by the Fund. The provisions of this Article
IV Section 3 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in this Article IV. Each
Director and officer or employee of the Fund shall, in the performance of his
or her duties, be fully and completely justified and protected with regard to
any act or any failure to act resulting from reliance in good faith upon the
books of account or other records of the Fund, upon an opinion of counsel
selected by the Board of Directors or a committee of the Directors, or upon
reports made to the Fund by any of the Fund’s officers or employees or by any
advisor, administrator, manager, distributor, dealer, accountant, appraiser or
other expert or consultant selected with reasonable care by the Board of
Directors or a committee of the Directors, officers or employees of the Fund,
regardless of whether such counsel or expert may also be a Director.
Section 4.
Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article IV shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 5.
Insurance. The Directors may maintain insurance for the
protection of the Fund’s property, the shareholders, Directors, officers,
employees and agents in such amount as the Directors shall deem adequate to
cover possible tort liability, and such other insurance as the Directors in
their sole judgment shall deem advisable or is required by the 1940 Act.
Section 6.
Subrogation. In the event of payment by the Fund to an Indemnitee
under the Charter or these Bylaws, the Fund shall be subrogated to the extent
of such payment to all of the rights of recovery of the Indemnitee, who shall
execute such documents and do such acts as
the
Fund may reasonably request to secure such rights and to enable the Fund
effectively to bring suit to enforce such rights.
Article V
STOCK
Section 1.
Shares of Stock. Except as otherwise provided in a resolution
approved by the Board of Directors, all Shares of the Fund shall be
uncertificated Shares.
Section 2.
Transfer Agents, Registrars and the Like. The Directors shall
have authority to employ and compensate such transfer agents and registrars
with respect to the Shares of the Fund as the Directors shall deem necessary or
desirable. The transfer agent or transfer agents may keep the applicable
register and record therein the original issues and transfers, if any, of the
Shares. Any such transfer agents and/or registrars shall perform the duties
usually performed by transfer agents and registrars of certificates of stock in
a corporation, as modified by the Directors. In addition, the Directors shall
have power to employ and compensate such dividend disbursing agents, warrant
agents and agents for the reinvestment of dividends as they shall deem
necessary or desirable. Any of such agents shall have such power and authority
as is delegated to any of them by the Directors.
Section 3.
Transfer of Shares. Shares of the Fund shall be transferable in
the manner prescribed by the Charter, these Bylaws and applicable binding law.
Transfers of Shares shall be made on the books of the Fund, and in the case of
certificated Shares, only by the person named in the certificate or by such
person’s attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; or, in the case of uncertificated Shares, upon
receipt of proper transfer instructions from the registered holder of the
Shares or by such person’s attorney lawfully constituted in writing, and upon
payment of all necessary transfer taxes and compliance with appropriate
procedures for transferring Shares in uncertificated form; provided, however,
that such surrender and endorsement, compliance or payment of taxes shall not
be required in any case in which the officers of the Fund shall determine to
waive such requirement. If any certificated Shares are issued as provided in Section
1 of this Article V, they may be transferred only by the person
named in the certificate or by such person’s attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, properly endorsed
for transfer and payment of all necessary transfer taxes. With respect to
certificated Shares, every certificate exchanged, returned or surrendered to
the Fund shall be marked “Cancelled,” with the date of cancellation, by
the Secretary of the Fund or the transfer agent thereof. No transfer of Shares
shall be valid as against the Fund for any purpose until it shall have been
entered in the Share records of the Fund by an entry showing from and to whom
transferred.
Section 4.
Registered Shareholders. The Fund may deem and treat the holder
of record of any Shares as the absolute owner thereof for all purposes and shall
not be required to take any notice of any right or claim of right of any other
person.
Section 5.
Register of Shares. A register shall be kept at the offices of
the Fund or any transfer agent duly appointed by the Directors under the
direction of the Directors which shall
contain the
names and addresses of the shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Separate registers shall be
established and maintained for each class or series of Shares. Each such register
shall be conclusive as to who are the holders of the Shares of the applicable
class or series of Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of shareholders. No
shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to such Person as herein provided, until
such Person has given their address to a transfer agent or such other officer
or agent of the Directors as shall keep the register for entry thereon.
Section 6.
Disclosure of Holdings. The holders of Shares or other securities
of the Fund shall upon demand disclose to the Directors in writing such
information with respect to direct and indirect ownership of Shares or other
securities of the Fund as the Directors deem necessary or appropriate.
Section 7.
Signatures. Any or all of the signatures on a certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Fund with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section 8.
Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Fund alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate,
or such owner’s legal representative, to advertise the same in such manner as
the Board of Directors shall require and/or to give the Fund a bond in such sum
as it may direct as indemnity against any claim that may be made against the
Fund on account of the alleged loss, theft or destruction of such certificate
or the issuance of such new certificate.
Article VI
MISCELLANEOUS
Section 1.
Filing. These Bylaws and any amendment or supplement hereto shall
be filed in such places as may be required or as the Directors deem
appropriate. Each amendment or supplement shall be accompanied by a certificate
signed and acknowledged by the Secretary stating that such action was duly
taken in a manner provided herein, and shall, upon insertion in the Fund’s
minute book, be conclusive evidence of all amendments contained therein.
Section 2.
Governing Law. These Bylaws and the rights of all parties and the
validity and construction of every provision hereof shall be subject to and
construed according to the laws of the state in which the Fund was formed,
although such law shall not be viewed as limiting the powers otherwise granted
to the Directors hereunder and any ambiguity shall be viewed in favor of such
powers.
Section
3.
Provisions in Conflict with Law or Regulation.
(a)
The provisions of these Bylaws are severable, and if the Directors shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Code or with other applicable binding laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of these Bylaws;
provided, however, that such determination shall not affect any of the
remaining provisions of these Bylaws or render invalid or improper any action
taken or omitted prior to such determination.
(b)
If any provision of these Bylaws shall be held invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall attach only to
such provision in such jurisdiction and shall not in any manner affect such
provision in any other jurisdiction or any other provision of these Bylaws in
any jurisdiction.
Section 4.
Control Share Acquisition Act. Pursuant to Sections 3-702(b) and
(c)(4) of the MGCL, the Board of Directors has adopted a resolution that the
Fund shall be subject to Title 3, Subtitle 7 of the MGCL (the “Maryland
Control Share Acquisition Act” or the “Act”), which shall apply to
the voting rights of holders of shares of stock of the Fund acquired in a
control share acquisition to the extent provided in such provisions of the
MGCL. Notwithstanding the foregoing sentence, (1) no holder of shares of stock
of the Fund shall be entitled to exercise the rights of an objecting
stockholder under Section 3-708 of the MGCL; (2) the Act shall not apply to the
voting rights of the holders of any shares of preferred stock of the Fund (but
only with respect to such shares); (3) the Act shall not apply to the voting
rights of any person acquiring shares of stock of the Fund in a control share
acquisition (as defined in the Act) if, prior to the acquisition, the person
obtains approval of the Board of Directors exempting the acquisition from the
Act specifically, generally, or generally by types, which exemption may include
the person and the person’s affiliates or associates or other persons; and (4)
to the extent that any provisions of the Act are determined to be inconsistent
with the 1940 Act, then any such provisions shall not apply.
Article VII
AMENDMENT OF BYLAWS
Section 1.
Amendment and Repeal of Bylaws. The Directors shall have the
exclusive power to amend or repeal the Bylaws or adopt new Bylaws at any time.
Except as may be required by applicable binding law or the Charter, action by
the Directors with respect to the Bylaws shall be taken by an affirmative vote
of a majority of the Directors. The Directors shall in no event adopt Bylaws
which are in conflict with the Charter, and any inconsistency shall be
construed in favor of the related provisions in the Charter.