-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UFZ+A1KGk0rgTG9iiU6NYEh61vLUck06dfstnt8GTAqaGC8Hn1Dbl/KWulTLSshc +ceFnKrzT79+L3H2G9wndA== 0001193125-03-046118.txt : 20030905 0001193125-03-046118.hdr.sgml : 20030905 20030905164501 ACCESSION NUMBER: 0001193125-03-046118 CONFORMED SUBMISSION TYPE: POS AMI PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030905 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MORGAN STANLEY DEAN WITTER ASIA PACIFIC FUND INC CENTRAL INDEX KEY: 0000919808 IRS NUMBER: 000000000 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AMI SEC ACT: 1940 Act SEC FILE NUMBER: 811-08388 FILM NUMBER: 03884224 BUSINESS ADDRESS: STREET 1: 1221 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 6175578742 MAIL ADDRESS: STREET 1: MORGAN STANLEY ASIA PACIFIC FUND STREET 2: 1221 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 FORMER COMPANY: FORMER CONFORMED NAME: MORGAN STANLEY ASIA PACIFIC FUND INC DATE OF NAME CHANGE: 19940505 FORMER COMPANY: FORMER CONFORMED NAME: MORGAN STANLEY ASIA INVESTMENT FUND INC DATE OF NAME CHANGE: 19940316 POS AMI 1 dposami.txt MORGAN STANLEY ASIA-PACIFIC FUND, INC. As filed with the Securities and Exchange Commission on September 5, 2003 Securities Act File No. 333-1597 Investment Company Act File No. 811-8388 ================================================================================ U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- Form N-2 Registration Statement under the Securities Act of 1933 [_] Pre-Effective Amendment No. [_] Post Effective Amendment No. [_] and/or Registration Statement under the Investment Company Act of 1940 [X] Amendment No. 7 [X] (check appropriate box or boxes) ---------- Morgan Stanley Asia-Pacific Fund, Inc. (formerly Morgan Stanley Asia Investment Fund. Inc.) (Exact Name of Registrant as Specified in Charter) 1221 Avenue of the Americas New York, New York 10020 (Address of Principal Executive Offices) Registrant's Telephone Number, including Area Code: (212) 762-7500 ---------- RONALD E. ROBISON Morgan Stanley Asia-Pacific Fund, Inc. c/o Morgan Stanley Investment Management Inc. 1221 Avenue of the Americas New York, New York 10020 (Name and Address of Agent for Service) ---------- With copies to: LEONARD B. MACKEY, JR., ESQ. Clifford Chance US LLP 200 Park Avenue New York, New York 10166 (212) 878-8000 ---------- ================================================================================ EXPLANATORY NOTE This filing is made solely for the purposes of: (a) supplementing the Prospectus of Morgan Stanley Asia-Pacific Fund, Inc. (the "Fund") with information regarding certain sub-advisory arrangements entered into by Morgan Stanley Investment Management Inc., the Fund's investment manager, and (b) filing as an Exhibit the Amended and Restated By-Laws of the Fund. PARTS A and B--PROSPECTUS* ITEM 20. Investment Advisory and Other Services Effective August 11, 2003, Morgan Stanley Investment Management Inc. (the "Investment Manager") entered into Sub-Advisory Agreements with Morgan Stanley Investment Management Company and Morgan Stanley Asset & Investment Trust Management Co., Limited (each a "Sub-Adviser"). As a result, the following text is hereby added to the section of the Fund's Prospectus titled "Management of the Fund - Investment Manager": Sub-Advisers Morgan Stanley Asset & Investment Trust Management Co., Limited ("MSAITM"), located at Yebisu Garden Place Tower, 20-3, Ebisu 4-chome, Shibuya-ku, Tokyo, Japan 150-6009, and Morgan Stanley Investment Management Company ("MSIM Company"), located at 23 Church Street, 16-01 Capital Square, Singapore 049481, each a wholly-owned subsidiary of Morgan Stanley, serve as investment sub-advisers for the Fund on a day-to-day basis. MSAITM and MSIM Company each select, buy and sell securities for the Fund under the supervision of the Investment Manager. References in the Prospectus to the Investment Manager, when used in connection with its activities as the Fund's investment adviser, include any Sub-Adviser acting under its supervision. The Investment Manager pays each Sub-Adviser on a monthly basis a portion of the net advisory fees the Investment Adviser receives from the Fund. Each investment sub-advisory agreement will continue in effect for an initial term of two years, and thereafter for successive annual periods as long as such continuance is approved in accordance with the 1940 Act. - ---------- * Pursuant to the General Instructions to Form N-2, all information required to be set forth in Part B: Statement of Additional Information has been included in Part A: The Prospectus. PART C--OTHER INFORMATION ITEM 24. Financial Statements and Exhibits (1) Financial Statements (Not applicable) (2) Exhibits (a) (1) -- Articles of Incorporation* (2) -- Articles of Amendment** (3) -- Articles of Amendment*** (b) -- Amended and Restated By-Laws+ (c) -- Not applicable (d) (1) -- Specimen certificate for Common Stock, par value $.01 per share*** (2) -- Form of Subscription Certificate (included on pages A-1 to A-2 of the Prospectus forming part of this Registration Statement)***** (3) -- Form of Notice of Guaranteed Delivery (included on pages B-1 to B-2 of the Prospectus forming part of this Registration Statement)***** (4) -- Form of Nominee Holder Over-Subscription Exercise Form (included on pages C-1 to C-2 of the Prospectus forming part of this Registration Statement)***** (5) -- Form of Subscription Agent Agreement**** (6) -- Form of Information Agent Agreement**** (e) -- Dividend Reinvestment and Cash Purchase Plan*** (f) -- Not applicable (g) (1) -- Investment Advisory and Management Agreement with the Manager*** (2) Sub-Advisory Agreement between the Manager and Morgan Stanley Asset & Investment Trust Management Co., Limited+ (3) Sub-Advisory Agreement between the Manager and Morgan Stanley Investment Management Company + (h) (1) -- Form of Dealer Manager Agreement**** (2) -- Form of Soliciting Dealer Agreement**** (3) -- Form of Selling Group Agreement**** (i) -- Not applicable (j) (1) -- Custody Agreement*** (2) -- Domestic Custody Agreement*** (k) (1) -- Agreement for Stock Transfer Services*** (2) -- Administration Agreement*** (3) -- Agreement for Shareholder Services in Japan*** (4) -- Agreement for Dividend Paying Services in Japan*** (5) -- Agreement for Commissions for Shareholder and Dividend Paying Services in Japan*** (l) (1) -- Opinion and Consent of Rogers & Wells**** (2) -- Opinion and Consent of Piper & Marbury L.L.P.**** (m) -- Not applicable (n) -- Consent of Independent Accountants**** (o) -- Not applicable (p) -- Not applicable (q) -- Not applicable (r) -- Not applicable * Incorporated by reference to the Fund's Registration Statement on Form N-2 (File Nos. 33-76014; 811-8388) filed on March 2, 1994. ** Incorporated by reference to Pre-Effective Amendment No. 1 to the Fund's Registration Statement on Form N-2 (File Nos. 33-76014; 811-8388) filed on June 27, 1994. *** Incorporated by reference to Pre-Effective Amendment No. 2 to the Fund's Registration Statement on Form N-2 (File Nos. 33-76014; 811-8388) filed on July 25, 1994. **** Previously filed. ***** Previously filed as an Exhibit to the Registrants Registration Statement filed on April 16, 1996 (file No. 333-1597). + Filed herewith. SIGNATURES Pursuant to the requirements of the Investment Company Act of 1940, as amended, the Registrant has duly caused this Amendment to its Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and State of New York, on the 5th day of September, 2003. MORGAN STANLEY ASIA-PACIFIC FUND, INC. By: /s/ Stefanie V. Chang ------------------------------- Stefanie V. Chang Vice President EXHIBIT INDEX Sequentially Exhibit Numbered Number Exhibit Page - -------- ----------------------------------------------- ------------ 2(b) Amended and Restated By-Laws 2(g)(2) Sub-Advisory Agreement between the Manager and Morgan Stanley Asset & Investment Trust Management Co., Limited 2(g)(3) Sub-Advisory Agreement between the Manager and Morgan Stanley Investment Management Company EX-99.2(B) 3 dex992b.txt BY-LAWS Exhibit 2(b) MORGAN STANLEY ASIA-PACIFIC FUND, INC. A Maryland corporation AMENDED AND RESTATED BY-LAWS July 31, 2003 TABLE OF CONTENTS ARTICLE I ............................................................................. 1 Section 1.1. Place of Meeting ................................................. 1 Section 1.2. Annual Meetings .................................................. 1 Section 1.3. Special Meetings ................................................. 1 Section 1.4. Notice of Meetings of Stockholders ............................... 2 Section 1.5. Record Dates ..................................................... 2 Section 1.6. Quorum; Adjournment of Meetings .................................. 3 Section 1.7. Voting and Inspectors ............................................ 3 Section 1.8. Conduct of Stockholders' Meetings ................................ 4 Section 1.9. Concerning Validity of Proxies, Ballots, etc. .................... 4 Section 1.10. Action Without Meeting ........................................... 4 Section 1.11. Advance Notice of Stockholder Nominees for Director and Other Stockholder Proposals ............................................ 5 ARTICLE II ............................................................................ 8 Section 2.1. Function of Directors ............................................ 9 Section 2.2. Number of Directors .............................................. 9 Section 2.3. Classes of Directors; Term of Directors. ......................... 9 Section 2.4. Vacancies ........................................................ 9 Section 2.5. Increase or Decrease in Number of Directors ...................... 10 Section 2.6. Place of Meeting ................................................. 10 Section 2.7. Regular Meetings ................................................. 10 Section 2.8. Special Meetings ................................................. 10 Section 2.9. Notices .......................................................... 10 Section 2.10. Quorum ........................................................... 11
Section 2.11. Executive Committee ......................................... 11 Section 2.12. Other Committees ............................................ 12 Section 2.13. Telephone Meetings .......................................... 12 Section 2.14. Action Without a Meeting .................................... 12 Section 2.15. Compensation of Directors ................................... 12 Section 2.16. Selection and Nomination of Non-Interested Directors ........ 13 ARTICLE III ...................................................................... 13 Section 3.1. Executive Officers .......................................... 13 Section 3.2. Term of Office .............................................. 13 Section 3.3. Powers and Duties ........................................... 14 Section 3.4. Surety Bonds ................................................ 14 ARTICLE IV ....................................................................... 14 Section 4.1. Certificates for Shares ..................................... 14 Section 4.2. Transfer of Shares .......................................... 14 Section 4.3. Stock Ledgers ............................................... 15 Section 4.4. Transfer Agents and Registrars .............................. 15 Section 4.5. Lost, Stolen or Destroyed Certificates ...................... 15 ARTICLE V ........................................................................ 16 Section 5.1. Corporate Seal .............................................. 16 Section 5.2. Location of Offices ......................................... 16 Section 5.3. Books and Records ........................................... 16 Section 5.4. Annual Statement of Affairs ................................. 16 Section 5.5. Net Asset Value ............................................. 16 ARTICLE VI ....................................................................... 17
Section 6.1. Fiscal Year ................................................ 17 Section 6.2. Accountant ................................................. 17 ARTICLE VII ..................................................................... 17 Section 7.1. General .................................................... 17 Section 7.2. Indemnification of Directors and Officers .................. 17 Section 7.3. Insurance .................................................. 18 ARTICLE VIII .................................................................... 19 ARTICLE IX ...................................................................... 19
MORGAN STANLEY ASIA-PACIFIC FUND, INC. By-Laws ARTICLE I Stockholders ------------ Section 1.1. Place of Meeting. All meetings of the stockholders should ---------------- be held at the principal office of the Corporation in the State of Maryland or at such other place within the United States as may from time to time be designated by the Board of Directors and stated in the notice of such meeting. Section 1.2. Annual Meetings. The annual meeting of the stockholders --------------- of the Corporation shall be held during the month of June of each year on such date and at such hour as may from time to time be designated by the Board of Directors and stated in the notice of such meeting, for the purpose of electing directors for the ensuing year and for the transaction of such other business as may properly be brought before the meeting. Section 1.3. Special Meetings. Special meetings of the stockholders ---------------- for any purpose or purposes may be called by the Chairman of the Board, the President, or a majority of the Board of Directors. Special meetings of stockholders shall also be called by the Secretary upon receipt of the request in writing signed by stockholders holding not less than 25% of the votes entitled to be cast thereat. Such request shall state the purpose or purposes of the proposed meeting and the matters proposed to be acted on at such proposed meeting. The Secretary shall inform such stockholders of the reasonably estimated costs of preparing and mailing such notice of meeting and upon payment to the Corporation of such costs, the Secretary shall give notice as required in this Article to all stockholders entitled to notice of such meeting. No special meeting of stockholders need be called upon the request of the holders of common stock entitled to cast less than a majority of all votes entitled to be cast at such meeting to consider any matter which 1 is substantially the same as a matter voted upon at any special meeting of stockholders held during the preceding twelve months. Section 1.4. Notice of Meetings of Stockholders. Not less than ten ---------------------------------- days' and not more than ninety days' written or printed notice of every meeting of stockholders, stating the time and place thereof (and the purpose of any special meeting), shall be given to each stockholder entitled to vote thereat and to each other stockholder entitled to notice of the meeting by leaving the same with such stockholder or at such stockholder's residence or usual place of business or by mailing it, postage prepaid, and addressed to such stockholder at such stockholder's address as it appears upon the books of the Corporation. If mailed, notice shall be deemed to be given when deposited in the mail addressed to the stockholder as aforesaid. No notice of the time, place or purpose of any meeting of stockholders need be given to any stockholder who attends in person or by proxy or to any stockholder who, in writing executed and filed with the records of the meeting, either before or after the holding thereof, waives such notice. Section 1.5. Record Dates. The Board of Directors may fix, in advance, ------------ a record date for the determination of stockholders entitled to notice of or to vote at any stockholders meeting or to receive a dividend or be allotted rights or for the purpose of any other proper determination with respect to stockholders and only stockholders of record on such date shall be entitled to notice of and to vote at such meeting or to receive such dividends or rights or otherwise, as the case may be; provided, however, that such record date shall -------- ------- not be prior to ninety days preceding the date of any such meeting of stockholders, dividend payment date, date for the allotment of rights or other such action requiring the determination of a record date; and further provided that such record date shall not be prior to the close of business on the day the record date is fixed, that the transfer books shall not be closed for a period longer than 20 days, 2 and that in the case of a meeting of stockholders, the record date or the closing of the transfer books shall not be less than ten days prior to the date fixed for such meeting. Section 1.6. Quorum; Adjournment of Meetings. The presence in person ------------------------------- or by proxy of stockholders entitled to cast a majority of the votes entitled to be cast thereat shall constitute a quorum at all meetings of the stockholders, except as otherwise provided in the Articles of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the holders of a majority of the stock present in person or by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote at such meeting shall be present, to a date not more than 120 days after the original record date. At such adjourned meeting at which the requisite amount of stock entitled to vote thereat shall be represented, any business may be transacted which might have been transacted at the meeting as originally notified. Any meeting of stockholders, annual or special, may adjourn 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 thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. Section 1.7. Voting and Inspectors. At all meetings, stockholders of --------------------- record entitled to vote thereat shall have one vote for each share of common stock standing in his name on the books of the Corporation (and such stockholders of record holding fractional shares, if any, shall have proportionate voting rights) on the date for the determination of stockholders entitled to vote at such meeting, either in person or by proxy appointed by instrument in writing subscribed by such stockholder or his duly authorized attorney. 3 All elections shall be had and all questions decided by a majority of the votes cast at a duly constituted meeting, except as otherwise provided by statute or by the Articles of Incorporation or by these By-Laws. At any election of Directors, the Chairman of the meeting may, and upon the request of the holders of ten percent (10%) of the stock entitled to vote at such election shall, appoint two inspectors of election who shall first subscribe an oath or affirmation to execute faithfully the duties of inspectors at such election with strict impartiality and according to the best of their ability, and shall after the election make a certificate of the result of the vote taken. No candidate for the office of Director shall be appointed such Inspector. Section 1.8. Conduct of Stockholders' Meetings. The meetings of the --------------------------------- stockholders shall be presided over by the Chairman of the Board, or if he is not present, by the President, or if he is not present, by a vice-president, or if none of them is present, by a Chairman to be elected at the meeting. The Secretary of the Corporation, if present, shall act as a Secretary of such meetings, or if he is not present, an Assistant Secretary shall so act; if neither the Secretary nor the Assistant Secretary is present, then the meeting shall elect its Secretary. Section 1.9. Concerning Validity of Proxies, Ballots, etc. At every -------------------------------------------- meeting of the stockholders, all proxies shall be received and taken in charge of and all ballots shall be received and canvassed by the Secretary of the meeting, who shall decide all questions touching the qualification of voters, the validity of the proxies and the acceptance or rejection of votes, unless inspectors of election shall have been appointed by the Chairman of the meeting, in which event such inspectors of election shall decide all such questions. Unless a proxy provides otherwise, it is not valid for more than eleven months after its date. Section 1.10. Action Without Meeting. Any action to be taken by ---------------------- stockholders may be taken without a meeting if (1) all stockholders entitled to vote on the matter consent to 4 the action in writing, (2) all stockholders entitled to notice of the meeting but not entitled to vote at it sign a written waiver of any right to dissent and (3) said consents and waivers are filed with the records of the meetings of stockholders. Such consent shall be treated for all purposes as a vote at the meeting. Section 1.11. Advance Notice of Stockholder Nominees for Director and ------------------------------------------------------- Other Stockholder Proposals. - --------------------------- (a) The matters to be considered and brought before any annual or special meeting of stockholders of the Corporation shall be limited to only such matters, including the nomination and election of directors, as shall be brought properly before such meeting in compliance with the procedures set forth in this Section 1.11. (b) For any matter to be properly before any annual meeting of stockholders, the matter must be (i) specified in the notice of annual meeting given by or at the direction of the Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of the Board of Directors or (iii) brought before the annual meeting in the manner specified in this Section 1.11 by a stockholder of record or a stockholder (a "Nominee Holder") that holds voting securities entitled to vote at meetings of stockholders through a nominee or "street name" holder of record and can demonstrate to the Corporation such indirect ownership and such Nominee Holder's entitlement to vote such securities. In addition to any other requirements under applicable law and the Certificate of Incorporation and By-Laws of the Corporation, persons nominated by stockholders for election as directors of the Corporation and any other proposals by stockholders shall be properly brought before the meeting only if notice of any such matter to be presented by a stockholder at such meeting of stockholders (the "Stockholder Notice") shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not less than 60 nor more than 90 days prior to the first anniversary date of the 5 annual meeting for the preceding year; provided, however, that, if and only if -------- ------- the annual meeting is not scheduled to be held within a period that commences 30 days before such anniversary date and ends 30 days after such anniversary date (an annual meeting date outside such period being referred to herein as an "Other Annual Meeting Date"), such Stockholder Notice shall be given in the manner provided herein by the later of the close of business on (i) the date 60 days prior to such Other Annual Meeting Date or (ii) the 10th day following the date such Other Annual Meeting Date is first publicly announced or disclosed. Any stockholder desiring to nominate any person or persons (as the case may be) for election as a director or directors of the Corporation shall deliver, as part of such Stockholder Notice: (i) a statement in writing setting forth (A) the name of the person or persons to be nominated, (B) the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by each such person, as reported to such stockholder by such nominee(s), (C) the information regarding each such person required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K or paragraph (b) of Item 22 of Rule 14a-101 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), adopted by the Securities and Exchange Commission (or the corresponding provisions of any regulation or rule subsequently adopted by the Securities and Exchange Commission applicable to the Corporation), (D) whether such stockholder believes any nominee will be an "interested person" of the Corporation (as defined in the Investment Company Act of 1940, as amended), and, if not an "interested person", information regarding each nominee that will be sufficient for the Corporation to make such determination, and (E) the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such stockholder; (ii) each such person's signed consent to serve as a director of the Corporation if elected, such stockholder's name and address; and (iii) in the case of a Nominee Holder, evidence establishing such Nominee Holder's indirect ownership of, and entitlement to vote, securities at the meeting 6 of stockholders. Any stockholder who gives a Stockholder Notice of any matter proposed to be brought before the meeting (not involving nominees for director) shall deliver, as part of such Stockholder Notice, the text of the proposal to be presented and a brief written statement of the reasons why such stockholder favors the proposal and setting forth such stockholder's name and address, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such stockholder, if applicable, any material interest of such stockholder in the matter proposed (other than as a stockholder) and, in the case of a Nominee Holder, evidence establishing such Nominee Holder's indirect ownership of, and entitlement to vote, securities at the meeting of stockholders. As used herein, shares "beneficially owned" shall mean all shares which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act. Notwithstanding anything in this Section 1.11 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and either all of the nominees for director or the size of the increased Board of Directors are not publicly announced or disclosed by the Corporation at least 70 days prior to the first anniversary of the preceding year's annual meeting, a Stockholder Notice shall also be considered timely hereunder, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not later than the close of business on the 10th day following the first date all of such nominees or the size of the increased Board of Directors shall have been publicly announced or disclosed. (c) Only such matters shall be properly brought before a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. In the event the Corporation calls a special meeting of stockholders for the purpose 7 of electing one or more directors to the Board of Directors, any stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, if the Stockholder Notice required by clause (b) of this Section 1.11 hereof shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not later than the close of business on the 10th day following the day on which the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is publicly announced or disclosed. (d) For purposes of this Section 1.11, a matter shall be deemed to have been "publicly announced or disclosed" if such matter is disclosed in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission. (e) In no event shall the adjournment of an annual meeting, or any announcement thereof, commence a new period for the giving of notice as provided in this Section 1.11. This Section 1.11 shall not apply to stockholder proposals made pursuant to Rule 14a-8 under the Exchange Act. (f) The person presiding at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether notice of nominees and other matters proposed to be brought before a meeting has been duly given in the manner provided in this Section 1.11 and, if not so given, shall direct and declare at the meeting that such nominees and other matters shall not be considered. ARTICLE II Board of Directors ------------------ 8 Section 2.1. Function of Directors. The business and affairs of the --------------------- Corporation shall be conducted and managed under the direction of its Board of Directors. All powers of the Corporation shall be exercised by or under authority of the Board of Directors except as conferred on or reserved to the stockholders by statute. Section 2.2. Number of Directors. The Board of Directors shall consist ------------------- of not more than fourteen Directors nor less than such number of Directors as may be permitted under Maryland law, as may be determined from time to time by vote of a majority of the Directors then in office. Directors need not be stockholders. Section 2.3. Classes of Directors; Term of Directors. The Directors --------------------------------------- shall be divided into three classes, designated Class I, Class II and Class III. All classes shall be as nearly equal in number as possible. The Directors as initially classified shall hold office for terms as follows: the Class I Directors shall hold office until the date of the annual meeting of stockholders in 1996 or until their successors shall be elected and qualified; the Class II Directors shall hold office until the date of the annual meeting of stockholders in 1997 or until their successors shall be elected and qualified; and the Class III Directors shall hold office until the date of the annual meeting of stockholders in 1998 or until their successors shall be elected and qualified. Upon expiration of the term of office of each class as set forth above, the Directors in each such class shall be elected for a term of three years to succeed the Directors whose terms of office expire. Each Director shall hold office until the expiration of his or her term and until his or her successor shall have been elected and qualified, or until his or her death, or until he or she shall have resigned, or until he or she shall have been removed as provided by Statute or the Articles of Incorporation. Section 2.4. Vacancies. In case of any vacancy in the Board of --------- Directors through death, resignation or other cause, other than an increase in the number of Directors, subject to the 9 provisions of law, a majority of the remaining Directors, although a majority is less than a quorum, by an affirmative vote, may elect a successor to hold office until the next annual meeting of stockholders or until his successor is chosen and qualified. Section 2.5. Increase or Decrease in Number of Directors. The Board of ------------------------------------------- Directors, by the vote of a majority of the entire Board, may increase the number of Directors and may elect Directors to fill the vacancies created by any such increase in the number of Directors until the next annual meeting of stockholders or until their successors are duly chosen and qualified. The Board of Directors, by the vote of a majority of the entire Board, may likewise decrease the number of Directors to a number not less than that permitted by law. Section 2.6. Place of Meeting. The Directors may hold their meetings ---------------- within or outside the State of Maryland, at any office or offices of the Corporation or at any other place as they may from time to time determine. Section 2.7. Regular Meetings. Regular meetings of the Board of ---------------- Directors shall be held at such time and on such notice as the Directors may from time to time determine. The annual meeting of the Board of Directors shall be held as soon as practicable after the annual meeting of the stockholders for the election of Directors. Section 2.8. Special Meetings. Special meetings of the Board of ---------------- Directors may be held from time to time upon call of the Chairman of the Board, the President, the Secretary or two or more of the Directors, by oral or telegraphic or written notice duly served on or sent or mailed to each Director not less than one day before such meeting. Section 2.9. Notices. Unless required by statute or otherwise ------- determined by resolution of the Board of Directors in accordance with these By-laws, notices to Directors need not be in writing and need not state the business to be transacted at or the purpose of any meeting, and no notice need be given to any Director who is present in person or to any Director 10 who, in writing executed and filed with the records of the meeting either before or after the holding thereof, waives such notice. Waivers of notice need not state the purpose or purposes of such meeting. Section 2.10. Quorum. One-third of the Directors then in office shall ------ constitute a quorum for the transaction of business, provided that if there is more than one Director, a quorum shall in no case be less than two Directors. If at any meeting of the Board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum shall have been obtained. The act of the majority of the Directors present at any meeting at which there is a quorum shall be the act of the Directors, except as may be otherwise specifically provided by statute or by the Articles of Incorporation or by these By-Laws. Section 2.11. Executive Committee. The Board of Directors may appoint ------------------- from the Directors an Executive Committee to consist of such number of Directors (not less than two) as the Board may from time to time determine. The Chairman of the Committee shall be elected by the Board of Directors. The Board of Directors shall have power at any time to change the members of such Committee and may fill vacancies in the Committee by election from the Directors. When the Board of Directors is not in session, to the extent permitted by law, the Executive Committee shall have and may exercise any or all of the powers of the Board of Directors in the management and conduct of the business and affairs of the Corporation. The Executive Committee may fix its own rules of procedure, and may meet when and as provided by such rules or by resolution of the Board of Directors, but in every case the presence of a majority shall be necessary to constitute a quorum. During the absence of a member of the Executive Committee, the remaining members may appoint a member of the Board of Directors to act in his place. 11 Section 2.12. Other Committees. The Board of Directors may appoint ---------------- from the Directors other committees which shall in each case consist of such number of Directors (not less than two) and shall have and may exercise such powers as the Board may determine in the resolution appointing them. A majority of all the members of any such committee may determine its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. The Board of Directors shall have power at any time to change the members and powers of any such committee, to fill vacancies and to discharge any such committee. Section 2.13. Telephone Meetings. Members of the Board of Directors or ------------------ a committee of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means, subject to the provisions of the Investment Company Act of 1940, as amended, constitutes presence in person at the meeting. Section 2.14. Action Without a Meeting. Any action required or ------------------------ permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting, if a written consent to such action is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of the proceedings of the Board or such committee. Section 2.15. Compensation of Directors. No Director shall receive any ------------------------- stated salary or fees from the Corporation for his services as such if such Director is, otherwise than by reason of being such Director, an interested person (as such term is defined by the Investment Company Act of 1940, as amended) of the Corporation or of its investment manager or principal underwriter. Except as provided in the preceding sentence, Directors shall be entitled to receive 12 such compensation from the Corporation for their services as may from time to time be voted by the Board of Directors. Section 2.16. Selection and Nomination of Non-Interested Directors. ---------------------------------------------------- Subject to approval by a majority of the directors of the Corporation, the directors of the Corporation who are not interested persons of the Corporation (as that term is defined in the Investment Company Act of 1940, as amended) shall select and nominate the directors of the Corporation who are not interested persons of the Corporation. ARTICLE III Officers -------- Section 3.1. Executive Officers. The executive officers of the ------------------ Corporation shall be chosen by the Board of Directors. These may include a Chairman of the Board of Directors (who shall be a Director) and shall include a President, a Secretary and a Treasurer. The Board of Directors or the Executive Committee may also in its discretion appoint one or more Vice-Presidents, Assistant Secretaries, Assistant Treasurers and other officers, agents and employees, who shall have such authority and perform such duties as the Board of Directors or the Executive Committee may determine. The Board of Directors may fill any vacancy which may occur in any office. Any two offices, except those of President and Vice-President, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity, if such instrument is required by law or these By-Laws to be executed, acknowledged or verified by two or more officers. Section 3.2. Term of Office. The term of office of all officers shall -------------- be one year and until their respective successors are chosen and qualified. Any officer may be removed from office at any time with or without cause by the vote of a majority of the whole Board of 13 Directors. Any officer may resign his office at any time by delivering a written resignation to the Corporation and, unless otherwise specified therein, such resignation shall take effect upon delivery. Section 3.3. Powers and Duties. The officers of the Corporation shall ----------------- have such powers and duties as shall be stated in a resolution of the Board of Directors, or the Executive Committee and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board of Directors and the Executive Committee. Section 3.4. Surety Bonds. The Board of Directors may require any ------------ officer or agent of the Corporation to execute a bond (including, without limitation, any bond required by the Investment Company Act of 1940, as amended, and the rules and regulations of the Securities and Exchange Commission) to the Corporation in such sum and with such surety or sureties as the Board of Directors may determine, conditioned upon the faithful performance of his duties to the Corporation, including responsibility for negligence and for the accounting of any of the Corporation's property, funds or securities that may come into his hands. ARTICLE IV Capital Stock ------------- Section 4.1. Certificates for Shares. Each stockholder of the ----------------------- Corporation shall be entitled to a certificate or certificates for the full number of shares of stock of the Corporation owned by him in such form as the Board may from time to time prescribe. Section 4.2. Transfer of Shares. Shares of the Corporation shall be ------------------ transferable on the books of the Corporation by the holder thereof in person or by his duly authorized attorney or legal representative, upon surrender and cancellation of certificates, if any, for the same number of shares, duly endorsed or accompanied by proper instruments of assignment and 14 transfer, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require; in the case of shares not represented by certificates, the same or similar requirements may be imposed by the Board of Directors. Section 4.3. Stock Ledgers. The stock ledgers of the Corporation, ------------- containing the names and addresses of the stockholders and the number of shares held by them respectively, shall be kept at the principal offices of the Corporation or, if the Corporation employs a Transfer Agent, at the offices of the Transfer Agent of the Corporation. Section 4.4. Transfer Agents and Registrars. The Board of Directors ------------------------------ may from time to time appoint or remove transfer agents and/or registrars of transfers of shares of stock of the Corporation, and it may appoint the same person as both transfer agent and registrar. Upon any such appointment being made, all certificates representing shares of capital stock thereafter issued shall be countersigned by one of such transfer agents or by one of such registrars of transfers or by both and shall not be valid unless so countersigned. If the same person shall be both transfer agent and registrar, only one countersignature by such person shall be required. Section 4.5. Lost, Stolen or Destroyed Certificates. The Board of -------------------------------------- Directors or the Executive Committee or any officer or agent authorized by the Board of Directors or Executive Committee may determine the conditions upon which a new certificate of stock of the Corporation of any class may be issued in place of a certificate which is alleged to have been lost, stolen or destroyed; and may, in its discretion, require the owner of such certificate or such owner's legal representative to give bond, with sufficient surety, to the Corporation and each Transfer Agent, if any, to indemnify it and each such Transfer Agent against any and all loss or claims which may arise by reason of the issue of a new certificate in the place of the one so lost, stolen or destroyed. 15 ARTICLE V Corporate Seal; Location of Offices; Books; Net Asset Value ------------------------------- Section 5.1. Corporate Seal. The Board of Directors may provide for a -------------- suitable corporate seal, in such form and bearing such inscriptions as it may determine. Any officer or director shall have the authority to affix the corporate seal. If the Corporation is required to place its corporate seal to a document, it shall be sufficient to place the word "(seal)" adjacent to the signature of the authorized officer of the Corporation signing the document. Section 5.2. Location of Offices. The Corporation shall have a ------------------- principal office in the State of Maryland. The Corporation may, in addition, establish and maintain such other offices as the Board of Directors or any officer may, from time to time, determine. Section 5.3. Books and Records. The books and records of the ----------------- Corporation shall be kept at the places, within or without the State of Maryland, as the directors or any officer may determine; provided, however, that -------- ------- the original or a certified copy of the by-laws, including any amendments to them, shall be kept at the Corporation's principal executive office. Section 5.4. Annual Statement of Affairs. The President or any other --------------------------- executive officer of the Corporation shall prepare annually a full and correct statement of the affairs of the Corporation, to include a balance sheet and a financial statement of operations for the preceding fiscal year. The statement of affairs should be submitted at the annual meeting of stockholders and, within 20 days of the meeting, placed on file at the Corporation's principal office. Section 5.5. Net Asset Value. The value of the Corporation's net --------------- assets shall be determined at such times and by such method as shall be established from time to time by the Board of Directors. 16 ARTICLE VI Fiscal Year and Accountant -------------------------- Section 6.1. Fiscal Year. The fiscal year of the Corporation, unless ----------- otherwise fixed by resolution of the Board of Directors, shall begin on the first day of January and shall end on the last day of December in each year. Section 6.2. Accountant. The Corporation shall employ an independent ---------- public accountant or a firm of independent public accountants as its Accountant to examine the accounts of the Corporation and to sign and certify financial statements filed by the Corporation. The employment of the Accountant shall be conditioned upon the right of the Corporation to terminate the employment forthwith without any penalty by vote of a majority of the outstanding voting securities at any stockholders' meeting called for that purpose. ARTICLE VII Indemnification and Insurance ----------------------------- Section 7.1. General. The Corporation shall indemnify directors, ------- officers, employees and agents of the Corporation against judgments, fines, settlements and expenses to the fullest extent authorized and in the manner permitted, by applicable federal and state law. Section 7.2. Indemnification of Directors and Officers. The ----------------------------------------- Corporation shall indemnify to the fullest extent permitted by law (including the Investment Company Act of 1940, as amended) as currently in effect or as the same may hereafter be amended, any person made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director or officer of the Corporation or serves or served at the request of the Corporation any other enterprise as a director or officer. To the fullest extent permitted by law (including the Investment Company Act of 1940, as amended) as currently in effect or as the 17 same may hereafter be amended, expenses incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation. The rights provided to any person by this Article VII shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director or officer as provided above. No amendment of this Article VII shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this Article VII, the term "Corporation" shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprises" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director or officer of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. Section 7.3. Insurance. Subject to the provisions of the Investment --------- Company Act of 1940, as amended, the Corporation, directly, through third parties or through affiliates of the Corporation, may purchase, or provide through a trust fund, letter of credit or surety bond insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or who, while a Director, officer, employee or agent of the Corporation, is or was 18 serving at the request of the Corporation as a Director, officer, employee, partner, trustee or agent of another foreign or domestic corporation, partnership joint venture, trust or other enterprise against any liability asserted against and incurred by such person in any such capacity or arising out of such person's position, whether or not the Corporation would have the power to indemnify such person against such liability. ARTICLE VIII Custodian --------- The Corporation shall have as custodian or custodians one or more trust companies or banks of good standing, foreign or domestic, as may be designated by the Board of Directors, subject to the provisions of the Investment Company Act of 1940, as amended, and other applicable laws and regulations; and the funds and securities held by the Corporation shall be kept in the custody of one or more such custodians, provided such custodian or custodians can be found ready and willing to act, and further provided that the Corporation and/or the Custodians may employ such subcustodians as the Board of Directors may approve and as shall be permitted by law. ARTICLE IX Amendment of By-Laws -------------------- The By-Laws of the Corporation may be altered, amended, added to or repealed only by majority vote of the entire Board of Directors. 19 EX-99.2(G)(2) 4 dex992g2.txt SERVICE AGREEMENT BY AND BTWN MORGAN STANLEY ASSET & INVESTMENT TRUST MANAGEMENT Exhibit 2(g)(2) SERVICES AGREEMENT This AGREEMENT, dated as of February 15, 2002 by and between Morgan Stanley Asset & Investment Trust Management Co., Limited, a Japanese corporation with its principal place of business at Yebisu Garden Place Tower, 20-3, Ebisu 4-Chome, Shibuya-ku, Tokyo 150, Japan ("MSAITM ") and Morgan Stanley Investment Management Inc., a Delaware corporation with its principal place of business as 1221 Avenue of the Americas, New York, NY 10020 ("Affiliate"): W I T N E S S E T H WHEREAS, MSAITM and Affiliate are both registered investment advisers in their respective places of business; and WHEREAS, MSAITM and Affiliate regularly retain each other's services as a sub-adviser for investment advisory and management agreements and securities investment trusts; WHEREAS, MSAITM and Affiliate wish to establish common terms and conditions pursuant to which they wish to retain each other's advisory services from time to time; and WHEREAS, Service Agreements entered into prior to the date of this Agreement are deemed ratified by the parties hereto, as evidenced by a new Appendix entered into pursuant to the terms herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, MSAITM and Affiliate hereby agree as follows: 1. DEFINED TERMS (a) Except as otherwise defined in this Agreement or in an Appendix, the capitalized terms used in this Agreement shall have the following meanings: "Adviser" shall mean for each Portfolio the party that is providing advisory services pursuant to the Appendix for that Portfolio. "Appendix" shall mean a Service Request that has been accepted in accordance with the terms of this Agreement. "Manager" shall mean for each Portfolio the party to which advisory services are provided under this Agreement. "Portfolio" shall mean the assets of a specified client designated as such in an Appendix. "Service Request" shall mean a request to provide advisory services under this Agreement in the form of Exhibit A. "Services" shall mean the services described in section 2. (b) Except where otherwise specified, all references to parties, sections, sub-sections, Exhibits and Appendixes are to parties, sections, sub-sections, Exhibits and Appendixes to this Agreement. All references to a singular noun include the plural and each pronoun includes all genders. 2. DUTIES OF THE ADVISER (a) Except as otherwise provided in an Appendix, the Adviser shall provide the following services to the Manager. (1) Where the Appendix specifies "investment advisory services" the Adviser shall furnish (as may be requested by the Manager) one or more of the following: (i) recommendations concerning country and asset allocations for the Portfolio, factual information, research reports, including reports (written and oral), analyses, statistical information and advice concerning market trends; (ii) investment recommendations regarding investment for the Portfolio, including advice concerning specific industries, companies and securities to be purchased or sold by the Portfolio; (iii) advice with respect to the derivative transactions to be engaged in by the Portfolio, both for hedging and non-hedging purposes; and (iv) such other information as may be requested from time to time. (2) Where the Appendix specifies "discretionary investment management services" the Adviser shall perform one or more of the following services in the manner requested by the Manager: (i) manage the investment of the assets of the Portfolio in accordance with the investment objectives, policies and limitations set forth in the relevant Appendix, and in that connection to review, supervise and administer continuously the investment program of the Portfolio, to determine in the Adviser `s discretion the securities to be purchased or sold and the portion of the Portfolio's assets to be held uninvested; (ii) select and place orders for securities and other property constituting assets of the Portfolio with brokers, dealers, banks and members of securities exchanges; (iii) execute waivers, consents and other instruments with respect to securities and other assets of the Portfolio (iv) endorse, transfer or deliver such securities and to participate in or consent to any plan of reorganization, merger, combination, consolidation, liquidation or similar plan with reference to securities; (v) exercise any voting right exercisable by a holder of any of the securities of the Portfolio; (vi) send the Manager daily trade details upon confirming transactions with brokers, dealers, banks or members of securities exchanges; (vii) maintain on behalf of the Manager the records regarding the Agent's activities specified in the relevant Appendix; and (viii) render regular reports to the Manager concerning the Adviser's discharge of its obligations with respect to a Portfolio in accordance with the requirements set forth in the relevant Appendix. (b) In executing transactions pursuant to sub-section (a)(2), the Adviser shall use its best efforts to obtain the best execution for the Portfolio, taking into account factors including, without limitation, price (including applicable brokerage commission and dealer spread), size of order, difficulty of execution, operational facilities of the firm involved, the provision of research and related services by the executing firm and the firm's risk in positioning a block of securities. Subject to the foregoing criteria, the Adviser may effect portfolio transactions with any of its affiliated companies. (c) The Adviser shall not delegate its functions, powers, discretion, privileges or duties under this section 2 to any person, firm or corporation without the prior written consent of the Manager. 3. COMPENSATION In exchange for the Services with respect to a Portfolio, the Manager shall pay to the Adviser the fees and other compensation as may be separately agreed between them. 4. NON-EXCLUSIVITY OF SERVICES (a) Nothing in this Agreement or any Appendix shall be construed as prohibiting the Adviser from providing services that are the same or similar to Services, or entering into the same agreements as this with, others (including other investment companies or other securities investment trusts), so long as the Adviser's services to the Manager are not impaired thereby. (b) Nothing in this Agreement or any Appendix shall prevent the Adviser or its directors, employees, agents or customers from (i) being interested in the Manager or any beneficial owner of any Portfolio, whether as directors, employees or investors, or (ii) transacting with the Manager or the Portfolios in any capacity, or (iii) investing in the same types of investment as the Portfolios. Nothing in this Agreement or in any Appendix shall be construed to require the Adviser or its directors, employees, agents or customers to account for any benefit arising therefrom or disclose such interest. 5. STANDARD OF CARE; INDEMNIFICATION (a) Unless otherwise provided in an Appendix, the Adviser shall perform Services to the standard of a professional investment adviser. (b) Unless otherwise provided in an Appendix, the Manager shall indemnify and hold harmless the Adviser, its officers, directors, employees, shareholders and affiliates (each an "Indemnified Party"), from and against any losses, costs and expenses (including without limitation reasonable attorney's fees) incurred or suffered by an Indemnified Party arising from any action, proceeding or claims which may be brought against such Indemnified Party arising out of or in connection with the performance or non-performance of its duties with respect to each Portfolio, other than losses, costs and expenses resulting from willful misconduct or gross negligence in the performance of such Indemnified Party's duties. This indemnification shall survive the termination of the relevant Appendix. 6. DURATION AND TERMINATION (a) Unless otherwise provided in an Appendix, the duration of the Services to be provided with respect to each Portfolio shall be for a term of one year and shall at the end of each term renew automatically for a term of one year. Either party may terminate an Appendix at any time by 60 days' prior notice or on such longer notice as may be specified in the Appendix. (b) Termination of any Appendix shall not affect the right of the Adviser to receive payments of any unpaid balance of the compensation described in Section 3 earned prior to such termination and shall not affect any other Appendix. 7. AMENDMENT; COUNTERPARTS (a) This Agreement and each Appendix may be amended only by a writing signed by both parties. (b) This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but which when taken together shall constitute one and the same instrument. 8. ASSIGNMENT This Agreement may not be assigned by either party without the express written consent of the other party. 9. GOVERNING LAW (a) This Agreement is governed by and shall be construed in accordance with the laws of the State of New York and each party hereby consents to the non-exclusive jurisdiction of the courts of the State of New York sitting in the borough of Manhattan for the resolution of any disputes arising out of or in connection with this Agreement. (b) To the extent provided in an Appendix, the interpretation of that Appendix and the provisions of this Agreement as applied to that Appendix shall be construed in accordance with the laws of the jurisdiction specified in the Appendix. 10. APPENDIX (a) MSAITM and Affiliate hereby agree that each Appendix shall constitute a separate investment advisory agreement between MSAITM and Affiliate incorporating the terms and conditions specified in this Agreement and in the Appendix. In the event of any inconsistencies between the provisions of this Agreement and the provisions of an Appendix, the language of the Appendix shall govern with respect to the Portfolio described in that Appendix and the language of this Agreement shall govern in all other respects. (b) To obtain Services, a party must prepare and sign two copies of a Service Request and send them to the other party. Upon the other party's execution and return to the originating party of a Service Request, the Service Request shall become an Appendix and shall constitute a binding agreement between the parties. Each Appendix shall be deemed to constitute a delegation of all powers and authority of the Manager to the extent necessary to enable the Adviser to perform the Services in respect of that Appendix and an acceptance by the Adviser of such delegation. 11. WARRANTIES (a) Each party makes the following representations and undertakes in respect of each Portfolio for which it is the Manager that: (1) it has full power and capacity to execute and deliver the relevant Appendix and the terms and conditions contained in this Agreement and that Appendix will be legally binding upon it; and (2) it has and shall maintain at all times relevant to any Portfolio (i) due authorization to act as trustor, discretionary investment manager or investment adviser for that Portfolio, and (ii) all necessary consents or approvals of any governmental or other regulatory body; and shall comply with the terms of the same and with all applicable laws, regulations or directives of such bodies and authorities; and shall provide the Adviser with copies of such consents or approvals as it may reasonably request. (b) Each party makes the following representations and undertakes in respect of each Portfolio for which it is the Adviser that: (1) it has and at all times relevant to any Portfolio will have full power and capacity to enter into and perform its obligations pursuant to this Agreement and the relevant Appendix and that the terms and conditions contained in this Agreement the relevant Appendix will be legally binding upon it; and (2) it has and shall maintain at all times relevant to any Portfolio all necessary consents or approvals of any governmental or other regulatory body and shall comply with the terms of the same and with all applicable laws, regulations or directives of such bodies and authorities and shall provide the Manager with copies of such consents or approvals as it may reasonably request. 12. INDEPENDENT CONTRACTOR The Adviser shall for all purposes be deemed to be an independent contractor and, unless otherwise expressly provided or authorized, shall have no authority to act for or represent the Manager in any way or otherwise be deemed as an agent of the Manager 13. COMMUNICATIONS (a) Any notices, records, communications or instructions to be given or served under or in connection with this Agreement shall be in writing and shall be sufficiently given or served if delivered or sent by, international courier service or by facsimile transmission with confirmation by first class mail return receipt requested to the address for the party set forth below to such other address as that party may designate by notice: If to MSAITM: Morgan Stanley Asset & Investment Trust Management Co., Limited Yebisu Garden Place Tower, 20-3, Ebisu 4-Chome, Shibuya-ku, Tokyo 150 (Japan) (or such different address or fax number as notified). If to Affiliate: Morgan Stanley Investment Management Inc. 1221 Avenue of the Americas New York, NY 10020 U.S.A. (b) All notices shall be deemed to be effective upon receipt. (c) Each of the parties hereby consents to the recording of telephone conversations between them. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth hereinabove. MORGAN STANLEY ASSET & INVESTMENT TRUST MANAGEMENT CO., LIMITED By: /S/ John R. Alkire ------------------------------------ Name: John R. Alkire Title: President MORGAN STANLEY INVESTMENT MANAGEMENT INC. By: /S/ Arthur Lev ------------------------------------ Name: Arthur Lev Title: Managing Director EXHIBIT A APPENDIX No.[__] to the Services Agreement by and between Morgan Stanley Asset & Investment Trust Management Co., Limited and Morgan Stanley Investment Management Inc. dated as of February __, 2002 (the "Agreement") PORTFOLIO NAME: [ ] Part A. Portfolio Details Account number: Date of Management Agreement: Power of delegation: clause Governing law and jurisdiction: Effective date of delegation to Delegatee: Part B. Services requested hereby (specify "advisory services" or "discretionary management services"):________________________________ Duties retained by the Manager: The attachment(s) to this Appendix (which is /are incorporated herein by reference) contain(s) the investment guidelines and restrictions and any other matters of which the Adviser needs to be aware to perform its obligations in relation to the Portfolio. Except as specified herein, the terms and conditions of the Agreement shall govern the obligations of the Manager and the Adviser with respect to the Portfolio. As Manager, the undersigned hereby requests Services described herein: MANAGER [company name] By:_________________________ Name: Title: We acknowledge and agree to provide the Services described herein, as Adviser: ADVISER [company name] By:_______________________ Name: Title: PLEASE READ THIS DOCUMENT AND THE AGREEMENT CAREFULLY. (This document is delivered to you at the time of conclusion of this contract pursuant to Article 15 of the Law Regulating Securities Investment Advisory Business.) APPENDIX No. 9 to the Services Agreement by and between Morgan Stanley Asset & Investment Trust Management Co., Limited (Registration number of Investment Advisor: Director General of the Kanto Financial Bureau No. 152, Authorization number: Minister of Finance No. 118) and Morgan Stanley Investment Management Inc. dated as of February 15, 2002 (the "Agreement") PORTFOLIO NAME: Morgan Stanley Asia-Pacific Fund, Inc. Part A. Portfolio Details Client Name: Morgan Stanley Asia-Pacific Fund, Inc. Account number: MASPJ Date of Management Agreement: May 13, 1997 Power of delegation: Governing law and jurisdiction: Japan Effective date of delegation to Adviser: August 11, 2003 Fund Manager: Kunihiko Sugio Part B. Services requested hereby (specify "advisory services" or "discretionary management services"): Discretionary Management Services Duties retained by the Manager: All other The Agreement shall become effective as of the date first above written and shall remain in force until the date of termination of the investment management agreement between the Fund and the Manager (the "Management Agreement") (but not later than two years after the date hereof) and thereafter, but only so long as such continuance is specifically approved at least annually by (i) the Directors of the Fund or by the vote of a majority of the outstanding voting securities of the Fund and (ii) a majority of those Directors who are not parties to the Management Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval. The Agreement may be terminated at any time, without the payment of any penalty, by the Manager or by vote of a majority of the outstanding voting securities of the Fund, or by the Adviser, on sixty days' written notice to the other party. The Agreement shall automatically terminate in the event of its assignment or in the event of the termination of the Management Agreement. The Agreement may be amended by the parties only if such amendment is specifically approved by (i) the Directors of the Fund or by the vote of a majority of outstanding voting securities of the Fund and (ii) a majority of those Directors who are not parties to the Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval. The Manager shall promptly notify the Adviser of any approvals, terminations or other actions taken by the Directors of the Fund or by the vote of a majority of outstanding voting securities of the Fund pursuant to any of the preceding three paragraphs. The terms "vote of a majority of the outstanding voting securities", "assignment", "affiliated person" and "interested person" used in this Agreement, shall have the respective meanings specified in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder, subject, however, to such exemptions as may be granted by the Securities and Exchange Commission under said Act. The attachment(s) to this Appendix (which is/are incorporated herein by reference) contain(s) the investment guidelines and restrictions and any other matters of which the Adviser needs to be aware to perform its obligations in relation to the Fund. Except as specified herein, the terms and conditions of the Agreement shall govern the obligations of the Manager and the Adviser with respect to the Fund. Fees: The fees payable to the Adviser by the Manager shall be such amount as is agreed from time to time by the Adviser and the Manager, but not to exceed the amount paid by the Fund to the Manager. As Manager, the undersigned hereby requests Services described herein: MANAGER Morgan Stanley Investment Management Inc. By:___________________________________ Name: Title: We acknowledge and agree to provide the Services described herein, as Adviser: ADVISER Morgan Stanley Asset & Investment Trust Management Co., Limited By:______________________________ Name: John R. Alkire Title: Representative Director and President Preferential right to business bond: Parties to investment advisory agreements or discretionary investment agreements with the Adviser named herein have a preferential right over other creditors to the business bond deposited by the Adviser with respect to any claims arising from this Appendix or the Agreement. EX-99.2(G)(3) 5 dex992g3.txt SUB-ADVISORY AGREEMENT Exhibit 2(g)(3) SUB-ADVISORY AGREEMENT AGREEMENT made as of the 11th day of August, 2003, by and between MORGAN STANLEY INVESTMENT MANAGEMENT INC., a Delaware corporation (hereinafter referred to as "MSIM", and MORGAN STANLEY INVESTMENT MANAGEMENT COMPANY, a corporation organized under the laws of Singapore (hereinafter referred to the "Local Manager"). W I T N E S S T E T H: WHEREAS, Morgan Stanley Asia-Pacific Fund, Inc. (the "Fund") is Maryland corporation engaged in business as a closed-end management investment company and is registered under the Investment Company Act of 1940, as amended (hereinafter referred to as the "Investment Company Act"); and WHEREAS, MSIM and the Local Manager are engaged principally in rendering investment advisory services and are registered as investment advisers under the Investment Advisors Act of 1940, as amended; and WHEREAS, the Local Manager is the holder of a capital markets services licence for fund management under the Securities and Futures Act (Cap. 289) of Singapore/ or is exempt from licensing under the Securities and Futures Act (Cap. 289) of Singapore and is the holder of a financial adviser's licence under the Financial Advisers Act (Cap. 110) of Singapore or is exempt from licensing under the Financial Advisers Act (Cap. 110) of Singapore; and WHEREAS, MSIM has entered into an investment advisory agreement (the "Advisory Agreement") with the Fund dated March 13, 1997, pursuant to which MSIM provides management and investment and advisory services to the Fund; and WHEREAS, the Local Manager is willing to provide investment advisory services to MSIM in connection with the Fund's operations on the terms and conditions hereinafter set forth; NOW THEREFORE, in consideration of the premises and the covenants hereinafter contained, the Local Manager and MSIM hereby agree as follows: ARTICLE I Duties of the Local Manager MSIM hereby employs the Local Manager to act as investment adviser to MSIM and to furnish the investment advisory services described below, subject to the broad supervision of MSIM and the Fund, for the period and on the terms and conditions set forth in this Agreement. The Local Manager hereby accepts such employment and agrees during such period, at its own expense, to render, or arrange for the rendering of, such services and to assume the obligations herein set forth for the compensation provided for herein. The Local Manager and its affiliates shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund. The Local Manager shall have the right to make unsolicited calls on MSIM and shall provide MSIM with such investment research, advice and supervision as the latter may from time to time consider necessary for the proper supervision of the assets of the Fund; shall furnish continuously an investment program for the Fund and shall make recommendations from time to time as to which securities shall be purchased, sold or exchange and what portion of the assets of the Fund shall be held in the various securities in which the Fund invests, options, futures, options on futures or cash; all of the foregoing subject always to the restrictions of the Articles of Incorporation and By-Laws of the Fund, as they may be amended and/or restated from time to time, the provisions of the Investment Company Act and the statements relating to the Fund's investment objective(s), investment restrictions as the same are set forth in the currently effective prospectus and statement of additional information relating to the shares of the Fund under the Securities Act of 1933, as amended (the "Prospectus" and "Statement of Additional Information", respectively). The Local Manager shall make recommendations and effect transactions with respect to foreign currency matters, including foreign exchange contracts, foreign currency options, foreign currency futures and related options on foreign currency futures and forward foreign currency transactions. The Local Manager shall also make recommendations or take action as to the manner in which voting rights, rights to consent to corporate action and any other rights pertaining to the portfolio securities of the Fund shall be exercised. The Local Manager will not hold money on behalf of MSIM or the Fund, nor will the Local Manager be the registered holder of the registered investment of MSIM or the Fund or be the custodian of documents or other evidence of title. ARTICLE II Allocation of Charges and Expenses The Local Manager assumes and shall pay for maintaining the staff and personnel necessary to perform its obligations under this Agreement and shall at its own expense provide the office space, equipment and facilities which it is obligated to provide under Article I hereof and shall pay all compensation of officers of the Fund and all Directors of the Fund who are affiliated persons of the Local Manager. ARTICLE III Compensation of the Local Manager For the services rendered, the facilities furnished and expenses assumed by the Local Manager, MSIM shall pay to the Local Manager a fee in an amount to be determined from time to time by MSIM and the Local Manager but in no event in excess of the amount that MSIM actually received for providing services to the Fund pursuant to the Advisory Agreement. ARTICLE IV Limitation of Liability of the Local Manager The Local Manager shall not be liable for any error of judgment or mistake of law or for any loss arising out of any investment or for any act or omission in the performance of sub-advisory services rendered with respect to the Fund, except for willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of reckless disregard of its obligations and duties hereunder. As used in this Article IV, the Local Manager shall include any affiliates of MSIM performing services for MSIM contemplated hereby and directors, officers and employees of the Local Manager and such affiliates. 2 ARTICLE V Activities of the Local Manager The services of the Local Manager to the Fund are not to be deemed to be exclusive, the Local Manager and any person controlled by or under common control with the Local Manager (for purposes of this Article V referred to as "affiliates") being free to render services to others. It is understood that Directors, officers, employees and shareholders of the Fund are or may become interested in the Local Manager and its affiliates, as directors, officers, employees and shareholders or otherwise and that directors, officers, employees and shareholders of the Local Manager and its affiliates are or may become similarly interested in the Fund, and that the Local Manager and directors, officers, employees, partners and shareholders of its affiliates may become interested in the Fund as shareholders or otherwise. ARTICLE VI Compliance with Applicable Laws and Regulations The Local Manager shall obtain and at all times maintain and comply with the terms of all relevant authorisations, licences, consents, approvals and registrations and comply with all relevant laws and regulations, necessary for the purpose of performing any of its duties and obligations under this Agreement. The Local Manager shall inform MSIM as soon as possible if at any time the Local Manager becomes unable to comply with the terms of or maintain any such authorisations, licences, consents, approvals or registrations. ARTICLE VII Duration and Termination of this Agreement This Agreement shall become effective as of the date first above written and shall remain in force until the date of termination of the Advisory Agreement (but not later than two years after the date hereof) and thereafter, but only so long as such continuance is specifically approved at least annually by (i) the Directors of the Fund or by the vote of a majority of the outstanding voting securities of the Fund and (ii) a majority of those Directors who are not parties to this Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval. This Agreement may be terminated at any time, without the payment of any penalty, by MSIM or by vote of a majority of the outstanding voting securities of the Fund, or by the Local Manager, on sixty days' written notice to the other party. This Agreement shall automatically terminate in the event of its assignment or in the event of the termination of the Advisory Agreement. Any termination shall be without prejudice to the completion of transactions already initiated. ARTICLE VIII Amendments to this Agreement This Agreement may be amended by the parties only if such amendment is specifically approved by (i) the Directors of the Fund or by the vote of a majority of outstanding voting securities of the Fund and (ii) a majority of those Directors who are not parties to this Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval. 3 ARTICLE IX Definitions of Certain Terms The terms "vote of a majority of the outstanding voting securities", "assignment", "affiliated person" and "interested person" used in this Agreement, shall have the respective meanings specified in the Investment Company Act and the rules and regulations thereunder, subject, however, to such exemptions as may be granted by the Securities and Exchange Commission under said Act. ARTICLE X Governing Law This Agreement shall be construed in accordance with the laws of the State of New York and the applicable provisions of the Investment Company Act. To the extent that the applicable laws of the State of New York, or any of the provisions herein, conflict with the applicable provisions of the Investment Company Act, the latter shall control. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written. MORGAN STANLEY INVESTMENT MANAGEMENT INC. By: _______________________________ Name: Title: MORGAN STANLEY INVESTMENT MANAGEMENT COMPANY By: _______________________________ Name: Title: 4 -----END PRIVACY-ENHANCED MESSAGE-----