Exhibit 99.b
GLADSTONE CAPITAL CORPORATION
(A MARYLAND CORPORATION)
BYLAWS
TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES.....................................................................................1
Section 1. Principal Office.......................................................................1
Section 2. Additional Offices.....................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS....................................................................1
Section 3. Place..................................................................................1
Section 4. Annual Meeting.........................................................................1
Section 5. Special Meetings.......................................................................3
Section 6. Notice.................................................................................4
Section 7. Presiding Officer; Statement of Affairs; Order of Business.............................4
Section 8. Quorum; Adjournments...................................................................5
Section 9. Voting.................................................................................6
Section 10. Action Without Meeting.................................................................6
Section 11. Telephone Meetings.....................................................................7
ARTICLE III DIRECTORS...................................................................................7
Section 12. Powers.................................................................................7
Section 13. Number and Term........................................................................7
Section 14. Matters for Which Action of the Entire Board is Required...............................8
Section 15. Vacancy................................................................................8
Section 16. Removal and Resignation................................................................8
Section 17. Place of Meetings......................................................................8
Section 18. Annual Meeting.........................................................................8
Section 19. Regular Meetings.......................................................................9
Section 20. Special Meetings.......................................................................9
Section 21. Notice.................................................................................9
Section 22. Quorum; Adjournments...................................................................9
Section 23. Telephone Meetings.....................................................................9
Section 24. Action Without Meeting.................................................................9
Section 25. Compensation Of Directors..............................................................9
ARTICLE IV Committees.................................................................................10
Section 26. Executive Committee...................................................................10
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 27. Nominating Committee..................................................................10
Section 28. Compensation Committee................................................................10
Section 29. Audit Committee.......................................................................10
Section 30. Advisory Committee....................................................................11
Section 31. Other Committees......................................................................11
Section 32. Procedure; Notice; Meetings...........................................................11
Section 33. Quorum; Vote..........................................................................12
Section 34. Appointments; Vacancies; Changes; Discharges..........................................12
Section 35. Tenure................................................................................12
Section 36. Compensation..........................................................................12
Section 37. Action by Consent.....................................................................12
Section 38. Meetings by Telephone or Similar Communications.......................................12
ARTICLE V NOTICES; WAIVER OF NOTICE..................................................................12
Section 39. Notices...............................................................................12
Section 40. Waiver of Notice......................................................................13
ARTICLE VI OFFICERS...................................................................................13
Section 41. Designations..........................................................................13
Section 42. Term of Office; Removal...............................................................13
Section 43. Compensation..........................................................................13
Section 44. The Chief Executive Officer and The President.........................................13
Section 45. Vice-Presidents and Principals........................................................14
Section 46. The Secretary And Assistant Secretaries...............................................14
Section 47. The Chief Financial Officer, Treasurer And Assistant Treasurers.......................14
ARTICLE VII INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS.....................15
Section 48. Generally.............................................................................15
Section 49. Limitation for Disabling Conduct......................................................16
Section 50. Advisory Committee Members............................................................17
ARTICLE VIII CERTIFICATES OF STOCK......................................................................17
Section 51. Form of Signatures; Statements........................................................17
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 52. Registration of Transfer..............................................................18
Section 53. Registered Stockholders...............................................................19
Section 54. Location of Stock Ledger..............................................................19
Section 55. Record Date...........................................................................19
Section 56. Lost, Stolen or Destroyed Certificates................................................19
ARTICLE IX GENERAL PROVISIONS.........................................................................20
Section 57. Dividends.............................................................................20
Section 58. Reserves..............................................................................20
Section 59. Annual Statement......................................................................20
Section 60. Checks................................................................................20
Section 61. Fiscal Year...........................................................................20
Section 62. Seal..................................................................................20
ARTICLE X AMENDMENTS.................................................................................20
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Exhibit 99.b
BYLAWS
OF
GLADSTONE CAPITAL CORPORATION
(A MARYLAND CORPORATION)
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office shall be in the City
of Baltimore, State of Maryland.
SECTION 2. ADDITIONAL OFFICES. The Corporation may also have offices at
such other places both within and without the State of Maryland as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 3. PLACE. Unless the Articles of Incorporation provide
otherwise, meetings of stockholders shall be held at the office of the
Corporation in the Commonwealth of Virginia, or at any other place within the
United States as shall be designated from time to time by the Board of Directors
and stated in the notice of meeting or in a duly executed waiver of notice
thereof.
SECTION 4. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the Corporation,
for the purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors. Nominations of persons
for election to the Board of Directors and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders:
(i) pursuant to the Corporation's notice of meeting of stockholders; or (ii) by
or at the direction of the Board of Directors; or (iii) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of notice
provided for in the following paragraph, who is entitled to vote at such meeting
and who complied with the notice procedures set forth in Section 4.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (iii) of Section 4(a) of these Bylaws, (i) the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, (ii) such other business must be a proper matter for
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stockholder action under law, (iii) if the stockholder, or the beneficial owner
on whose behalf any such proposal or nomination is made, has provided the
Corporation with a Solicitation Notice (as defined in this Section 4(b)), such
stockholder or beneficial owner must, in the case of a proposal, have delivered
a proxy statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice, and (iv) if no Solicitation Notice relating thereto has
been timely provided pursuant to this section, the stockholder or beneficial
owner proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this Section 4. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the sixtieth (60th) day nor earlier than the close
of business on the ninetieth (90th) day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced more than thirty (30) days prior to or
delayed by more than thirty (30) days after the anniversary of the preceding
year's annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the ninetieth (90th) day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth (60th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth: (A) as to each person whom the stockholder proposed to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of, in the case of the proposal, at
least the percentage of the Corporation's voting shares required under
applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporation's voting shares
to elect such nominee or nominees (an affirmative statement of such intent, a
"Solicitation Notice").
(c) Notwithstanding anything in the second sentence of
Section 4(b) of these Bylaws to the contrary, in the event that the number of
directors to be elected to the Board of
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Directors of the Corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the increased
Board of Directors made by the Corporation at least seventy (70) days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 4 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section 4 shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 4. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in these Bylaws and, if
any proposed nomination or business is not in compliance with these Bylaws, to
declare that such defective proposal or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 4,
in order to include information with respect to a stockholder proposal in the
proxy statement and form of proxy for a stockholders' meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Nothing in these Bylaws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation proxy statement pursuant to
Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section 4, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the 1934 Act.
SECTION 5. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation may
be called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer or President, (iii) the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption), or (iv) stockholders of the Corporation who
are stockholders of record at the time of giving of notice and who hold at least
the percentage of the voting securities of the Corporation required by Section
3-805 of the Maryland General Corporation Law.
(b) If a special meeting is properly called by any person or
persons other than the Board of Directors, the request shall be in writing,
specifying the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by certified or registered mail, return
receipt requested, to the Chairman of the Board of Directors, the Chief
Executive Officer, the President or the Secretary of the Corporation. No
business may be
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transacted at such special meeting otherwise than specified in such notice. The
Board of Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one hundred
twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 6 of these Bylaws. Nothing contained
in this paragraph (b) shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the Board of Directors
may be held.
(c) Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
corporation who is a stockholder of record at the time of giving notice provided
for in these Bylaws who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 5(c). In the event
the corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such 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's notice required by Section 4(b) of these Bylaws shall be delivered
to the Secretary at the principal executive offices of the corporation not
earlier than the close of business on the ninetieth (90th) day prior to such
special meeting and not later than the close of business on the later of the
sixtieth (60th) day prior to such meeting or the tenth (10th) day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
SECTION 6. NOTICE. Except as otherwise provided herein or by law,
notice, given in writing or by electronic transmission, of each meeting of
stockholders shall be given not less than ten (10) nor more than ninety (90)
days before the date of the meeting to each stockholder entitled to vote at such
meeting, such notice to specify the place, if any, date and hour, in the case of
special meetings, the purpose or purposes of the meeting, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at any such meeting. If mailed, notice
is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at such stockholder's address as it appears on the records of
the corporation. Notice of the time, place, if any, and purpose of any meeting
of stockholders may be waived in writing, signed by the person entitled to
notice thereof, or by electronic transmission by such person, either before or
after such meeting, and will be waived by any stockholder by his attendance
thereat in person, by remote communication, if applicable, or by proxy, except
when the stockholder attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Any stockholder so waiving notice of
such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
SECTION 7. PRESIDING OFFICER; STATEMENT OF AFFAIRS; ORDER OF BUSINESS.
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(a) Meetings of stockholders shall be presided over by the
Chairman of the Board of Directors, if any, or, if he is not present (or, if
there is none), by the Chief Executive Officer, or, if he is not present, by the
President, or, if he is not present, by a Vice President, or, if he is not
present, by such person as may have been chosen by the Board of Directors, or if
none of such persons is present, by a chairman to be chosen by the stockholders
owning a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if he is not
present, an Assistant Secretary, or, if he is not present, such person as may be
chosen by the Board of Directors, or if none of such persons is present, then
such person as may be chosen by the stockholders owning a majority of the shares
of capital stock of the Corporation issued and outstanding and entitled to vote
at the meeting and who are present in person or represented by proxy shall act
as Secretary of the meeting.
(b) The following order of business, unless otherwise ordered at
the meeting, shall be observed as far as practicable and consistent with the
purposes of the meeting:
(1) Call of the meeting to order.
(2) Presentation of proof of mailing of the notice of the
meeting and, if the meeting is a special meeting, the call thereof.
(3) Presentation of proxies.
(4) Announcement that a quorum is present.
(5) Reading and approval of the minutes of the previous
meeting.
(6) Reports, if any, of officers.
(7) Submission of statement of affairs by the Chief
Financial Officer or Treasurer, if the meeting is an annual meeting.
(8) Election of directors, if the meeting is an annual
meeting or a meeting called for that purpose.
(9) Miscellaneous business.
(10) Adjournment.
SECTION 8. QUORUM; ADJOURNMENTS. At any meeting of stockholders the
presence in person or by proxy of stockholders entitled to cast a majority of
all the votes entitled to be cast at the meeting shall constitute a quorum; but
this section shall not affect any requirement under law or under the Articles of
Incorporation for the vote necessary for the adoption of any measure. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a
5
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
SECTION 9. VOTING.
(a) A majority of the votes cast at a meeting of stockholders,
duly called and at which a quorum is present, shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is required by law, these Bylaws
or by the Articles of Incorporation.
(b) If two or more classes of stock are entitled to vote
separately on any matter for which the law requires approval by two-thirds of
all the votes entitled to be cast, the matter shall be approved by two-thirds of
all the votes of each class, unless these Bylaws or the Articles of
Incorporation provide otherwise.
(c) Unless the Articles of Incorporation provide otherwise, each
outstanding share of stock having voting power, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders; but no share shall be entitled to vote if any installment payable
on it is overdue and unpaid. A stockholder may vote the shares owned of record
by him either in person or by proxy executed in writing by the stockholder or by
his duly authorized attorney-in-fact. No proxy shall be valid after eleven
months from its date, unless otherwise provided in the proxy. At all meetings of
stockholders, unless the voting is conducted by inspectors, all questions
relating to the qualification of voters and the validity of proxies and the
acceptance or rejection of votes shall be decided by the chairman of the
meeting.
(d) At all elections of directors of the Corporation each
stockholder having voting power shall not be entitled to exercise the right
of cumulative voting.
SECTION 10. ACTION WITHOUT MEETING.
(a) Any action required or permitted to be taken at any meeting
of stockholders may be taken without a meeting, if a unanimous written consent
which sets forth the action is signed by each stockholder entitled to vote on
the matter is filed with the records of the of stockholders' meetings.
(b) Unless the Articles of Incorporation requires otherwise, the
holders of any class of stock other than common stock, entitled to vote
generally in the election of directors, may take action or consent to any action
by the written consent of the stockholders entitled to cast not less than the
minimum number of votes that would be necessary to authorize or take the action
at a stockholders' meeting if the Corporation gives notice of the action to each
stockholder not later than ten (10) days after the effective time of the action.
(c) Notwithstanding the foregoing, no such action by written
consent may be taken following the closing of the initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering the offer and sale of Common Stock
of the corporation to the public (the "Initial Public Offering").
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SECTION 11. TELEPHONE MEETINGS. Stockholders may participate in a meeting
by means of a conference call or similar communications equipment by means of
which all persons participating can hear each other at the same time, and
participation in the meeting by such means shall conclusively be deemed to
constitute presence in person at such meeting.
ARTICLE III
DIRECTORS
SECTION 12. POWERS. The business and affairs of the Corporation shall be
managed by its Board of Directors, which may exercise all of the powers of the
Corporation, except such as are by law or by the Articles of Incorporation or by
these Bylaws conferred upon or reserved to the stockholders.
SECTION 13. NUMBER AND TERM.
(a) The number of directors of the Corporation shall initially be
two (2) until increased or decreased pursuant to the following provisions, but
shall never be greater than nine (9) or fewer than one (1). A majority of the
entire Board of Directors may, at any time and from time to time, increase or
decrease the number of directors of the Corporation as set forth in the Articles
of Incorporation or these Bylaws; provided, however, that the number of
directors shall not be increased by fifty percent (50%) or more in any twelve
(12) month period without the approval of two-thirds (2/3rds) of the members of
the Board of Directors then in office. The tenure of office of a director shall
not be affected by any decrease in the number of directors so made by the Board
of Directors. The directors shall be elected by a majority of all the votes cast
at the annual meeting of the stockholders, except as provided in Section 15 of
this Article.
(b) Following the closing of the Initial Public Offering, the
Corporation shall be subject to the provisions set forth in Title 3, Subtitle 8
of the Maryland General Corporation Law. Subject to the rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, following the closing of the Initial Public Offering, the
directors shall be divided into three classes to be designated Class I, Class II
and Class III, respectively. The initial Class I directors shall hold office for
a term expiring at the annual meeting of the stockholders held in the first year
following the closing of the Initial Public Offering. The initial Class II
directors shall hold office for a term expiring at the annual meeting of the
stockholders held in the second year following the closing of the Initial Public
Offering. The initial Class III directors shall hold office for a term expiring
at the annual meeting of the stockholders held in the third year following the
closing of the Initial Public Offering.
(c) At each annual meeting of the stockholders commencing with the
first annual meeting after the closing of the Initial Public Offering, the
successor or successors of the class of directors whose term expires at that
meeting (other than directors elected by the holders of any series of preferred
stock) shall hold office for a term expiring at the annual meeting of the
stockholders held in the third year following the year of their election. The
directors elected to each class (other than directors elected by any series of
preferred stock) shall hold office until their successors are duly elected and
qualify or until their earlier resignation or removal. Directors need not be
stockholders.
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SECTION 14. MATTERS FOR WHICH ACTION OF THE ENTIRE BOARD IS REQUIRED.
Notwithstanding anything to the contrary in these Bylaws, the following actions
shall require the approval by the affirmative vote of a majority of the entire
Board of Directors:
(a) appointing any director to a committee of the Board of
Directors pursuant to Article IV of these Bylaws;
(b) appointing any employee, officer, or director of the
Corporation, or any person who is to become an employee, officer, or director of
the Corporation, to serve as an officer above the level of principal; and
(c) altering, amending or repealing these Bylaws or adopting new
bylaws.
SECTION 15. VACANCY. Any vacancy occurring in the Board of Directors
for any cause, including by reason of an increase in the number of directors,
may be filled by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum. Notwithstanding the foregoing, if
the stockholders of any class or series are entitled separately to elect one or
more directors, a majority of the remaining directors elected by that class or
series or the sole remaining director elected by that class or series may fill
any vacancy among the number of directors elected by that class or series. A
director elected by the Board of Directors to fill a vacancy shall be elected to
hold office until the next annual meeting of stockholders or until his successor
is elected and qualifies.
SECTION 16. REMOVAL AND RESIGNATION.
(a) Unless otherwise provided by law or the Articles of
Incorporation, at any meeting of stockholders, duly called and at which a quorum
is present, the stockholders may, by the affirmative vote of the holders of
seventy-five percent (75%) of the votes generally entitled to be cast thereon,
remove any director or directors from office for cause, and may elect a
successor or successors to fill any resulting vacancies for the unexpired terms
of any removed director or directors. The stockholders may not remove a director
without cause.
(b) Any director may resign at any time by giving written notice
to the Board of Directors, the Chairman of the Board of Directors, the Chief
Executive Officer, the President or Secretary of the Corporation. Unless
otherwise specified in the written notice, the resignation shall take effect
upon delivery thereof to the Board of Directors or designated officer. It shall
not be necessary for a resignation to be accepted before it becomes effective.
SECTION 17. PLACE OF MEETINGS. Meetings of the Board of Directors,
regular or special, may be held at any place in or out of the State of Maryland
as the Board of Directors may from time to time determine.
SECTION 18. ANNUAL MEETING. The annual meeting of the Board of
Directors shall be held immediately following the annual stockholders meeting,
and no notice of such meeting shall be necessary to the directors in order
legally to constitute the meeting, provided a quorum shall be present.
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SECTION 19. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors.
SECTION 20. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Board of Directors or the executive
committee, if one be constituted, by vote at a meeting, or by the Chief
Executive Officer, the President or by a majority of the directors or a majority
of the members of the executive committee in writing with or without a meeting.
Special meetings may be held at such place or places within or without Maryland
as may be designated from time to time by the Board of Directors; in the absence
of such designation such meetings shall be held at such places as may be
designated in the call.
SECTION 21. NOTICE. Notice of the place and time of every special
meeting of the Board of Directors shall be served on each director or sent to
him by mail, or by leaving the same at his residence or usual place of business
or by telecopy, facsimile transmission, electronic mail or any other electronic
means at least twenty-four (24) hours before the date of the meeting.
SECTION 22. QUORUM; ADJOURNMENTS. At all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum
for the transaction of business and the action of a majority of the directors
present at any meeting at which a quorum is present shall be the action of the
Board of Directors unless the concurrence of a greater proportion is required
for such action by statute, the Articles of Incorporation or these Bylaws. If a
quorum shall not be present at any meeting of directors, the directors present
thereat may by a majority vote adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 23. TELEPHONE MEETINGS. Members of the Board of Directors or
any committee thereof may participate in a meeting by means of a conference call
or similar communications equipment by means of which all directors
participating can hear each other at the same time, and participation in the
meeting by such means shall conclusively be deemed to constitute presence in
person at such meeting.
SECTION 24. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if a written consent to such action is signed by
all members of the Board of Directors or of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
of Directors or committee (except for those instances where the Investment
Company Act of 1940 (the "1940 ACT") requires action be taken by the
Corporation's Board of Directors in person, including without limitation the
selection of independent auditors and the approval of an Investment Agreement.
SECTION 25. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services but, by resolution of the Board of
Directors, non-employed directors may be entitled to receive (a) an annual fee,
(b) a fixed cash sum, (c) a stock or stock option grant, or (d) a combination of
the above, along with the reimbursement of expenses of attendance, if any, for
attendance at each regular or special meeting of the Board of Directors, or
9
of any committee thereof, but nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
COMMITTEES.
SECTION 26. EXECUTIVE COMMITTEE. The Board of Directors may appoint
an Executive Committee consisting of not fewer than three members, one of whom
shall be designated as Chairman of the Executive Committee. The Chairman of the
Board of Directors and the President shall be elected members of the Executive
Committee. The Executive Committee shall have and may exercise those rights,
powers and authority of the Board of Directors as may from time to time be
granted to it by the Board of Directors subject to any limitations imposed by
law and may authorize the seal of the Corporation to be affixed to all papers
which may require the same.
SECTION 27. NOMINATING COMMITTEE. The Board of Directors shall appoint
a Nominating Committee consisting of not fewer than three members, one of whom
shall be designated as Chairman of the Nominating Committee. A majority of
members of the Nominating Committee shall not be officers of the Corporation.
The Nominating Committee shall have and may exercise those rights, powers and
authority of the Board of Directors as may from time to time be granted to it by
the Board of Directors; PROVIDED, HOWEVER, that in addition to any such rights,
powers or authority, the Nominating Committee shall have the exclusive right to
recommend candidates for election as directors to the Board of Directors.
SECTION 28. COMPENSATION COMMITTEE. The Board of Directors may appoint
from its membership a Compensation Committee consisting of not fewer than two
members, one of whom shall be designated as Chairman of the Compensation
Committee. None of the members of the Compensation Committee shall be officers
of the Corporation. The Compensation Committee shall have and may exercise those
rights, powers and authority of the Board of Directors as may from time to time
be granted to it by the Board of Directors.
SECTION 29. AUDIT COMMITTEE. The Board of Directors may appoint from
its membership an Audit Committee consisting of not fewer than three members,
each of whom shall be independent directors, and free from any relationship
that, in the opinion of the Board of Directors, would interfere with their
exercise of independent judgment as a committee member, one of whom shall be
designated as Chairman of the Audit Committee. All members of the Audit
Committee shall have a working familiarity with basic finance and accounting
practices, and at least one member of the Audit Committee shall have accounting
or related financial management expertise. The Board of Directors shall adopt a
formal written charter for the Audit Committee that specifies (1) the scope of
the Audit Committee's responsibilities and the means by which the Audit
Committee carries out these responsibilities, (2) the outside auditor's
accountability to the Board of Directors and the Audit Committee and the Audit
Committee's ultimate authority to select, evaluate and, where appropriate,
replace the outside auditor, and (3) the Audit Committee's responsibility to
oversee the independence of the outside auditor through the receipt of a formal
written statement delineating all relationships between the auditor and the
corporation and active dialogue with the auditors.
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SECTION 30. ADVISORY COMMITTEE.
(a) The Board of Directors may appoint individuals of its
selection to an Advisory Committee to assist the Board of Directors in the
conduct of its duties and responsibilities. The Advisory Committee may meet in
conjunction with meetings of the Board of Directors and shall serve as advisers
and counselors to the Board of Directors as the members thereof shall determine
best serves the Corporation's interests.
(b) The Board of Directors, by resolutions adopted by a majority
of the whole Board, may appoint an Advisory Committee complying with the terms
of Section 2(a)(1) of the 1940 Act and the regulations promulgated thereunder,
to provide advice and counsel in respect to investment and loan transactions
entered or contemplated by the Corporation or its subsidiaries. The Advisory
Committee may be composed of up to five persons, who shall not be directors,
officers, employees or agents of the Corporation or any subsidiary or investment
adviser thereof. Advisory Committee members shall be entitled to indemnification
under Article VII below. The Advisory Committee and its members will have no
voting power and no authority, as agent or otherwise, to act on behalf of the
Corporation, in respect of any matter; and directors shall be under no
obligation to accept or reject any particular item of advice or counsel provided
thereby. The Advisory Committee may be invited to hold meetings jointly with
meetings of directors. Any one or more members of the Advisory Committee may be
invited to attend meetings of the directors and may be offered access to the
same information and materials otherwise provided only to directors. The
Advisory Committee may render its advice in written or verbal form, and the same
may or may not be recorded.
SECTION 31. OTHER COMMITTEES. The Board of Directors, by resolutions
adopted by a majority of the entire Board of Directors, may appoint a committee
or committees, as it shall deem advisable and impose upon such committee or
committees such functions and duties, and grant such rights, powers and
authority, as the Board of Directors shall prescribe (except the power to
declare dividends or distributions on stock, to issue stock except to the extent
permitted by law, to recommend to stockholders any action requiring
stockholders' approval, to amend these Bylaws or to approve any merger or share
exchange which does not require stockholders' approval).
SECTION 32. PROCEDURE; NOTICE; MEETINGS. Each committee shall fix its own
rules of procedure and shall meet at such times and at such place or places as
may be provided by such rules or as the members of such committee shall provide.
Committee meetings may be called by the Chairman of the Board of Directors, the
Chief Executive Officer, the President, the Chairman of the Committee, if any,
or any two or more committee members on at least twenty-four (24) hours notice,
if such notice is mailed, delivered personally or sent by messenger, telecopy,
facsimile transmission, electronic mail or any other electronic means. Each
committee shall keep regular minutes of its meetings and deliver such minutes to
the Board of Directors. The Chairman of each committee, or, in his or her
absence, a member of such committee chosen by a majority of the members of such
committee present, shall preside at the meetings of such committee, and another
member thereof, or any other person, chosen by such committee shall act as
Secretary of such committee, or in the capacity of Secretary for purposes of
such meeting.
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SECTION 33. QUORUM; VOTE. With respect to each committee, a majority of
its members shall constitute a quorum for the transaction of business, and the
affirmative vote of a majority of the members thereof shall be required for any
action of such committee.
SECTION 34. APPOINTMENTS; VACANCIES; CHANGES; DISCHARGES. The Board of
Directors shall have the exclusive power at any time, through the approval by
the affirmative vote of a majority of the entire Board of Directors, to appoint
directors to, fill vacancies in, change the membership of, or discharge any
committee.
SECTION 35. TENURE. Each member of a committee shall continue as a member
thereof until the expiration of his or her term as a director, or his or her
earlier resignation as a member of such committee or as a director, unless
sooner removed as a member of such committee by a vote of a majority of the
entire Board of Directors or as a director in accordance with these Bylaws.
SECTION 36. COMPENSATION. Members of any committee shall be entitled to
such compensation for their services as members of any such committee and to
such reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. The
compensation (if any) of members of any committee may be on such basis as is
determined by the Board of Directors. Any member may waive compensation for any
meeting. Any committee member receiving compensation under these provisions
shall not be barred from serving the Corporation in any other capacity and from
receiving compensation and reimbursement of reasonable expenses for such other
services.
SECTION 37. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of its
proceedings.
SECTION 38. MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATIONS. The members
of any committee which is designated by the Board of Directors may participate
in a meeting of such committee by means of a conference telephone or similar
communications equipment by means of which all members participating in the
meeting can hear each other at the same time, and participation by such means
shall be conclusively deemed to constitute presence in person at such meeting.
ARTICLE V
NOTICES; WAIVER OF NOTICE
SECTION 39. NOTICES. Notices to directors and stockholders shall be in
writing and delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the Corporation. Notice by mail shall
be deemed to be given at the time when the same shall be mailed. In the case of
stockholders' meetings the notice may be left at the stockholders residence or
usual place of business or by transmitting it in the form of electronic mail to
any electronic mail address of the stockholder or by any other electronic means.
Notice to directors may also be given by telecopy, electronic mail or any other
electronic means.
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SECTION 40. WAIVER OF NOTICE. Whenever any notice of the time, place or
purpose of any meeting of stockholders, directors or committee is required to be
given under the provisions of law or under the provisions of the Articles of
Incorporation or these Bylaws, a waiver thereof in writing, signed by the person
or persons entitled to such notice and filed with the records of the meeting,
whether before or after the holding thereof, or actual attendance at the meeting
of stockholders in person or by proxy, or at the meeting of directors or
committee in person, shall be deemed equivalent to the giving of such notice to
such persons.
ARTICLE VI
OFFICERS
SECTION 41. DESIGNATIONS. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a Chief Executive Officer, a President, a
Secretary, a Chief Financial Officer and a Treasurer. The Board of Directors may
also choose a Chairman of the Board of Directors, one or more Vice-Presidents,
one or more Principals, one or more Assistant Secretaries and Assistant
Treasurers and any other officers deemed necessary or appropriate by the Board
of Directors. Two or more 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, the Articles of Incorporation or these Bylaws to be executed,
acknowledged or verified by two or more officers.
SECTION 42. TERM OF OFFICE; REMOVAL. At its annual meeting, the Board of
Directors shall elect a Chief Executive Officer, a President, a Secretary, a
Chief Financial Officer and a Treasurer. The Board of Directors may appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors. The officers of
the Corporation shall serve for one year and until their successors are chosen
and qualify. Any officer or agent may be removed by the Board of Directors
whenever, in its judgment, the best interests of the Corporation will be served
thereby, but such removal shall be without prejudice to the contractual rights,
if any, of the person so removed. If the office of any officer becomes vacant
for any reason, the vacancy shall be filled by the Board of Directors.
SECTION 43. COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
SECTION 44. THE CHIEF EXECUTIVE OFFICER AND THE PRESIDENT.
(a) The Chief Executive Officer shall be the chief executive
officer of the Corporation and shall preside over all meeting of the Board of
Directors and stockholders. He shall be involved in the general management of
the business of the Corporation, and shall see that all orders and resolutions
of the Board of Directors are carried into effect. He shall execute in the
corporate name all authorized deeds, mortgages, bonds, contracts or other
instruments requiring a seal, under the seal of the Corporation, except in cases
in which the signing or execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
13
(b) The President shall be primarily responsible for the
implementation of policies of the Board of Directors. In addition, in the
absence or permanent incapacity of a Chief Executive Officer, the President
shall maintain the duties of the Chief Executive Officer. He shall have
authority over the operations of the Company and its divisions, if any, subject
only to the ultimate authority of the Chief Executive Officer and the Board of
Directors. He may sign and execute in the name of the Company certificates,
deeds, mortgages, bonds, contracts or other instruments except in cases where
the signing and the execution thereof shall be expressly delegated by the Board
of Directors or by this Agreement to some other officer or agent of the Company
or shall be required by law otherwise to be signed or executed. In addition, he
shall perform all duties incident to the office of the President and such other
duties as from time to time may be assigned to him by the Board of Directors.
SECTION 45. VICE-PRESIDENTS AND PRINCIPALS. The Vice-President or
Principal, if any, or if there shall be more than one, the Vice-Presidents and
Principals, in the order determined by the Board of Directors, shall, in the
absence or disability of the Chief Executive Officer or President, perform the
duties and exercise the powers of the Chief Executive Officer or President, and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
SECTION 46. THE SECRETARY AND ASSISTANT SECRETARIES.
(a) The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chief Executive Officer or President, under whose supervision he shall be. He
shall keep in safe custody the seal of the Corporation and, when authorized by
the Board of Directors, affix the same to any instrument requiring it and, when
so affixed, it shall be attested by his signature or by the signature of an
Assistant Secretary.
(b) The Assistant Secretary, if any, or if there be more than one,
the Assistant Secretaries in the order determined by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
SECTION 47. THE CHIEF FINANCIAL OFFICER, TREASURER AND ASSISTANT
TREASURERS.
(a) The Chief Financial Officer and the Treasurer shall have the
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Chief Financial Officer and Treasurer may be the same person.
14
(b) The Chief Financial Officer or the Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chief Executive
Officer, the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires an account of transactions and of the
financial condition of the Corporation.
(c) If required by the Board of Directors, the Chief Financial
Officer or the Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the Corporation.
(d) The Assistant Treasurer, if any, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS
SECTION 48. GENERALLY. Reference is made to Section 2-418 (and any other
relevant provisions) of Maryland General Corporation Law. Particular reference
is made to the class of persons (hereinafter called "INDEMNITEES") who may be
indemnified by a Maryland corporation pursuant to the provisions of Section
2-418, namely, any entity (including the Corporation's investment adviser) or
person (or the heirs, executors or administrators of such person) who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, manager, partner, officer, trustee,
employee, agent or any similar title of another corporation, partnership, joint
venture, trust or other enterprise or employee benefit plan.
(a) The Corporation shall (and is hereby obligated to) indemnify
the Indemnitees, and each of them, in each and every situation where the
Corporation is obligated to make such indemnification pursuant to the aforesaid
statutory provisions or pursuant to the Articles of Incorporation.
(b) The Corporation shall indemnify the Indemnitees, and each of
them, in each and every situation where, under the aforesaid statutory
provisions, the Corporation is not obligated, but is nevertheless permitted or
empowered, to make such indemnification, if the Board of Directors determines
that such Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation,
15
and, in the case of any criminal action or proceeding, that such Indemnitee had
no reasonable cause to believe that such Indemnitee's conduct was unlawful.
SECTION 49. LIMITATION FOR DISABLING CONDUCT.
(a) Notwithstanding anything to the contrary in Section 48
hereof, the Corporation may not indemnify any director or officer of the
Corporation against any liability, nor shall any director or officer of the
Corporation be exculpated from any liability, to the Corporation or its
stockholders to which such director or officer might otherwise be subject by
reason of "DISABLING CONDUCT," as hereinafter defined. Accordingly, each
determination with respect to the permissibility of indemnification of a
director or officer of the Corporation because such director or officer has met
the applicable standard of conduct shall include a determination that the
liability for which such indemnification is sought did not arise by reason of
such person's disabling conduct. The determination required by this subsection
may be based on:
(i) a final decision on the merits by a court or
other body before whom the action, suit or proceeding was brought that the
person to be indemnified was not liable by reason of disabling conduct, or
(ii) in the absence of such a decision, a reasonable
determination, based on a review of the facts, that the person to be indemnified
was not liable by reason of such person's disabling conduct by: (A) the vote of
a majority of a quorum of directors who are disinterested, non-party directors;
or (B) an independent legal counsel in a written opinion. In making such
determination, such disinterested, non-party directors or independent legal
counsel, as the case may be, may deem the dismissal for insufficiency of
evidence of any disabling conduct of either a court action or an administrative
proceeding against a person to be indemnified to provide reasonable assurance
that such person was not liable by reason of disabling conduct.
(b) For the purpose of this Section 49:
(i) "DISABLING CONDUCT" of a director or officer
shall mean such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office or any
other conduct prohibited under Section 17(h) of the 1940 Act or any other
applicable securities laws;
(ii) "DISINTERESTED, NON-PARTY DIRECTOR" shall mean
a director of the Corporation who is neither an "INTERESTED PERSON" of the
Corporation as defined in Section 2(a)(19) of the 1940 Act nor a party to the
action, suit or proceeding in connection with which indemnification is sought;
(iii) "INDEPENDENT LEGAL COUNSEL" shall mean a member
of the Bar of the State of Maryland who is not, and for at least two (2) years
prior to his or her engagement to render the opinion in question has not been,
employed or retained by the Corporation, by any investment adviser to or
principal underwriter for the Corporation, or by any person affiliated with any
of the foregoing; and
16
(iv) "THE CORPORATION" shall include, in addition to
the resulting Corporation, any constituent Corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents.
(c) The Corporation may purchase insurance to cover the payment
of costs incurred in performing the Corporation's obligations under Section 48
hereof, but it is understood that no insurance may be obtained for the purpose
of indemnifying any disabling conduct.
(d) The Corporation may advance legal fees and other expenses
pursuant to the indemnification rights set forth in Section 48 hereof so long
as, in addition to the other requirements therefor, the Corporation either:
(i) obtains security for the advance from the
Indemnitee;
(ii) obtains insurance against losses arising by
reason of lawful advances; or
(iii) determines, pursuant to the means set forth in
Section 49(a)(ii) hereof, that there is reason to believe that the Indemnitee
ultimately will be found entitled to indemnification.
SECTION 50. ADVISORY COMMITTEE MEMBERS. The Corporation shall indemnify
any person appointed to any Advisory Committee pursuant to Article IV, Section
30 hereof (or the heirs, executors, or administrators of such person) who was or
is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a member of the
Advisory Committee of this Corporation, if the Board of Directors determines
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the Corporation, and in
the case of any criminal action or proceeding, that such person had no
reasonable cause to believe that such person's conduct was unlawful.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 51. FORM OF SIGNATURES; STATEMENTS.
(a) Except as provided in Section 51(b), shares of the
Corporation's capital stock shall be issued without certificates. At the time of
issuance or transfer of such uncertificated shares, the Corporation shall send
the stockholder a written statement identifying: (1) the Corporation as the
issuer of the stock; (2) the name of the stockholder or other person to whom it
is issued; and (3) the class of stock and the number of shares represented by
such statement. If the Corporation has authority at the time of such issuance or
transfer to issue stock of more than one class, the written statement shall also
include a full statement or summary of: (1) the designations and any
preferences, conversion and other rights, voting powers, restrictions,
17
limitations as to dividends, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation is authorized to
issue; and (2) if the Corporation is authorized at the time of such issuance or
transfer to issue any preferred or special class in series, (i) the differences
in the relative rights and preferences between the shares of each series to the
extent they have been set, and (ii) the authority of the Board of Directors to
set the relative rights and preferences of subsequent series. Notwithstanding
the immediately preceding sentence, the written statement may, in lieu of
including the information referred to therein, state that the Corporation will
furnish a full statement of such information to any stockholder on request and
without charge. If the Corporation imposes a restriction on transferability of
such uncertificated shares, the written statement shall also: (1) contain a full
statement of the restriction; or (2) state that the Corporation will furnish
information about the restriction to the stockholder on request and without
charge.
(b) Notwithstanding Section 51(a), every stockholder in the
Corporation shall, upon request duly made to the Corporation or any transfer
agent of the Corporation, be entitled to have a certificate, signed by the
President, a Vice-President or Chairman of the Board of Directors and
countersigned by the Secretary, Assistant Secretary, Treasurer or Assistant
Treasurer or other such officers as provided in Section 2-212 of the Maryland
General Corporation Law, exhibiting the number and class (and series, if any) of
shares owned by him, her or it, and bearing the seal of the Corporation. Such
signatures and seal may be facsimile transmission. In case any officer who has
signed, or whose facsimile signature was placed on, a certificate shall have
ceased to be such officer before such certificate is issued, it may nevertheless
be issued by the Corporation with the same effect as if he or she were such
officer at the date of its issue.
(c) Every certificate representing stock issued by the
Corporation, if it is authorized to issue stock of more than one class, shall
set forth upon the face or back of the certificate, a full statement or summary
of the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemptions of the stock of each class which the Corporation is
authorized to issue and, if the Corporation is authorized to issue any preferred
or special class of stock in series, the differences in the relative rights and
preferences between the shares of each series to the extent they have been set
and the authority of the Board of Directors to set the relative rights and
preferences of subsequent series. In lieu of such full statement or summary,
there may be set forth upon the face or back of each certificate a statement
that the Corporation will furnish to the stockholder, upon request and without
charge, a full statement of such information.
SECTION 52. REGISTRATION OF TRANSFER. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, or upon presentation to the Corporation or any transfer
agent of the Corporation of an instruction with a request to register transfer
of uncertificated shares, it shall be the duty of the Corporation or its
transfer agent, if it is satisfied that all terms and conditions of the Articles
of Incorporation, of the Bylaws and of applicable law regarding the transfer of
shares have been fulfilled, to record the transaction upon its books, to issue a
new certificate to the person entitled thereto upon request for such
certificate, and to cancel the old certificate, if any.
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SECTION 53. REGISTERED STOCKHOLDERS.
(a) Except as otherwise provided by law, the Corporation shall be
entitled to recognize the exclusive right of a person who is registered on its
books as the owner of shares of its capital stock to receive dividends or other
distributions, to vote as such owner, and to hold liable for calls and
assessments a person who is registered on its books as the owner of shares of
its capital stock. The Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person
except that the Board of Directors may adopt by resolution a procedure by which
a stockholder may certify in writing to the Corporation that any shares of its
capital stock registered in the name of such stockholder are held for the
account of a specified person other than such stockholder are held for the
account of a specified person other than such stockholder.
(b) If a stockholder desires that notices and/or dividends shall
be sent to a name or address other than the name or address appearing on the
stock ledger maintained by the Corporation (or by the transfer agent or
registrar, if any), such stockholder shall have the duty to notify the
Corporation (or the transfer agent or registrar, if any), in writing, of such
desire. Such written notice shall specify the alternate name or address to be
used.
SECTION 54. LOCATION OF STOCK LEDGER. A copy of the Corporation's stock
ledger containing (i) the name and address of each stockholder, and (ii) the
number and shares of stock of each class which the stockholder holds shall be
maintained at the Corporation's office located at its headquarters. Such stock
ledger may be in written form or any other form capable of being converted into
written form within a reasonable time for visual inspection.
SECTION 55. RECORD DATE. In order that the Corporation may determine the
stockholders of record who are entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or the allotment of any rights, or to make a determination with
respect to stockholders of record for any other proper purpose, the Board of
Directors may, in advance, fix a date as the record date for any such
determination or meeting. Such date shall not be more than 90 nor less than 10
days before the date of any such meeting, nor more than 90 days prior to the
date any other determination is made with respect to stockholders. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting taken
pursuant to Section 8 of Article II; PROVIDED, HOWEVER, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 56. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation which is claimed to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. When
authorizing such issuance 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 to advertise the same in
such manner as it shall require and/or to give the Corporation a bond in such
sum or other security in such form, as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate
claimed to have been lost, stolen or destroyed.
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ARTICLE IX
GENERAL PROVISIONS
SECTION 57. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in its own
shares, subject to the provisions of law and of the Articles of Incorporation.
SECTION 58. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 59. ANNUAL STATEMENT. The Chief Executive Officer, the President
or a Vice-President, the Chief Financial Officer or the Treasurer shall prepare
or cause to be prepared annually a full and correct statement of the affairs of
the Corporation, including a balance sheet and a financial statement of
operations for the preceding fiscal year, which shall be submitted at the annual
meeting and shall be filed within twenty days thereafter at the principal office
of the Corporation in the State of Maryland.
SECTION 60. CHECKS. All checks, drafts, and orders for the payment of
money, notes and other evidences of indebtedness, issued in the name of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
SECTION 61. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 62. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "CORPORATE
SEAL, MARYLAND." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE X
AMENDMENTS
SECTION 63. AMENDMENTS. These Bylaws may be amended, altered, restated or
repealed, or a provision waived as provided in the Articles of Incorporation and
these Bylaws.
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I, THE UNDERSIGNED, being the Secretary of Gladstone Capital
Corporation DO HEREBY CERTIFY the foregoing to be the bylaws of the Corporation,
as adopted by Written Consent of the Board of Directors in Lieu of an
Organizational Meeting, dated May 30, 2001.
/s/ DAVID GLADSTONE
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David Gladstone, Secretary