EXHIBIT (B) FORM OF BYLAWS OF THE REGISTRANT
Published on December 29, 2006
EXHIBIT B
AMENDED
AND RESTATED BYLAWS
OF
TRIANGLE CAPITAL CORPORATION
(the Corporation)
OF
TRIANGLE CAPITAL CORPORATION
(the Corporation)
ARTICLE I.
OFFICES
OFFICES
Section 1.1
Principal Office. The principal office of the Corporation in the
State of Maryland shall be located at such place as the Board of Directors may designate.
Section 1.2
Additional Offices. The Corporation may have additional offices,
including a principal executive office, at such places as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 2.1 Place. All meetings of the stockholders shall be held at the
principal executive office of the Corporation or at such other place in the United States as shall
be set by the Board of Directors and stated in the notice of the meeting.
Section 2.2 Annual Meetings. An annual meeting of the stockholders shall be
held to elect directors whose terms expire at the meeting and to transact such other business as
may properly be brought before the meeting. The annual meeting shall be held on the date and at
the time designated by the Board of Directors.
Section 2.3 Special Meetings.
(a) General. The Chairman of the Board, the President or the Board of Directors may call a
special meeting of the stockholders. Subject to subsection (b) of this Section 2.3, the Secretary
of the Corporation shall also call a special meeting of stockholders upon the written request of
stockholders entitled to cast not less than a majority of all the votes entitled to be cast at such
meeting.
(b) Stockholder Requested Special Meetings.
(1) Any stockholder of record seeking to have stockholders request a special meeting shall,
by sending written notice to the Secretary (the Record Date Request Notice) by registered mail,
return receipt requested, request the Board of Directors to fix a record date to determine the
stockholders entitled to request a special meeting (Request Record Date). The Record Date
Request Notice shall set forth the purpose of the meeting and the matters proposed to be acted on
at it, shall be signed by one or more stockholders of record as of the date of signature (or their
duly authorized agents), shall bear the date of signature of each
such stockholder (or such agent) and shall set forth all information relating to each such
stockholder that must be disclosed in solicitations of proxies for election of directors in an
election contest (even if an election contest is not involved), or is otherwise required, in each
case pursuant to Regulation 14A (or any successor provision) under the Securities Exchange Act of
1934, as amended (the Exchange Act). Upon receiving the Record Date Request Notice, the Board of
Directors may fix a Request Record Date. The Request Record Date shall not precede and shall not
be more than ten days after the close of business on the date on which the Board of Directors
adopts the resolution fixing the Request Record Date. If the Board of Directors, within ten days
after the date on which a valid Record Date Request Notice is received, fails to adopt a resolution
fixing the Request Record Date, the Request Record Date shall be the close of business on the tenth
day after the first date on which the Record Date Request Notice is received by the Secretary.
(2) In order for any stockholder to request a special meeting, one or more written requests
for a special meeting signed by the stockholders of record (or their duly authorized agents) as of
the Request Record Date entitled to cast not less than a majority (the Special Meeting
Percentage) of all of the votes entitled to be cast at such meeting (the Special Meeting
Request) shall be delivered to the Secretary. In addition, the Special Meeting Request shall set
forth the purpose of the meeting and the matters proposed to be acted on at it (which shall be
limited to the matters set forth in the Record Date Request Notice received by the Secretary),
shall bear the date of signature of each such stockholder (or such agent) signing the Special
Meeting Request, shall set forth the name and address, as they appear in the Corporations books,
of each stockholder signing such request (or on whose behalf the Special Meeting Request is signed)
and the class, series and number of all shares of stock of the Corporation which are owned by each
such stockholder, and the nominee holder for, and number of, shares owned beneficially but not of
record, shall be sent to the Secretary by registered mail, return receipt requested, and shall be
received by the Secretary within 60 days after the Request Record Date. Any requesting stockholder
may revoke his, her or its request for a special meeting at any time by written revocation
delivered to the Secretary.
(3) The Secretary shall inform such stockholders of the reasonably estimated cost of
preparing and mailing the notice of the meeting (including the Corporations proxy materials). The
Secretary shall not be required to call a special meeting upon a stockholder request and such
meeting shall not be held unless, in addition to the documents required by subsection (b)(2) of
this Section 2.3, the Secretary receives payment of such reasonably estimated cost prior to the
mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special meeting shall be held at such place,
date and time as may be designated by the Chairman of the Board, the President or the Board of
Directors, whoever has called the meeting. In the case of any special meeting called by the
Secretary upon the request of stockholders (a Stockholder Requested Meeting), such meeting shall
be held at such place, date and time as may be designated by the Board of Directors; provided,
however, that the date of any Stockholder Requested Meeting shall not be more than 90 days after
the record date for such meeting (the Meeting Record Date); and provided further that if the
Board of Directors fails to designate, within ten days after the
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date that a valid Special Meeting Request is actually received by the Secretary (the Delivery
Date), a date and time for a Stockholder Requested Meeting, then such meeting shall be held at
2:00 p.m. local time on the 90th day after the Meeting Record Date or, if such
90th day is not a Business Day (as defined below), on the first preceding Business Day;
and provided further that in the event that the Board of Directors fails to designate a place for a
Stockholder Requested Meeting within ten days after the Delivery Date, then such meeting shall be
held at the principal executive office of the Corporation. In fixing a date for any special
meeting, the Chairman of the Board, the President or the Board of Directors may consider such
factors as he, she or it deems relevant within the good faith exercise of business judgment,
including, without limitation, the nature of the matters to be considered, the facts and
circumstances surrounding any request for meeting and any plan of the Board of Directors to call an
annual meeting or a special meeting. In the case of any Stockholder Requested Meeting, if the
Board of Directors fails to fix a Meeting Record Date that is a date within 30 days after the
Delivery Date, then the close of business on the 30th day after the Delivery Date shall
be the Meeting Record Date.
(5) If written revocations of requests for the special meeting have been delivered to the
Secretary and the result is that stockholders of record (or their agents duly authorized in
writing), as of the Request Record Date, entitled to cast less than the Special Meeting Percentage
have delivered, and not revoked, requests for a special meeting to the Secretary, the Secretary
shall: (i) if the notice of meeting has not already been mailed, refrain from mailing the notice
of the meeting and send to all requesting stockholders who have not revoked such requests written
notice of any revocation of a request for the special meeting, or (ii) if the notice of meeting has
been mailed and if the Secretary first sends to all requesting stockholders who have not revoked
requests for a special meeting written notice of any revocation of a request for the special
meeting and written notice of the Secretarys intention to revoke the notice of the meeting, revoke
the notice of the meeting at any time before ten days before the commencement of the meeting. Any
request for a special meeting received after a revocation by the Secretary of a notice of a meeting
shall be considered a request for a new special meeting.
(6) The Board of Directors, the Chairman of the Board or the President may appoint
independent inspectors of elections to act as the agent of the Corporation for the purpose of
promptly performing a ministerial review of the validity of any purported Special Meeting Request
received by the Secretary. For the purpose of permitting the inspectors to perform such review, no
such purported request shall be deemed to have been delivered to the Secretary until the earlier of
(i) five Business Days after receipt by the Secretary of such purported request and (ii) such date
as the independent inspectors certify to the Corporation that the valid requests received by the
Secretary represent at least the Special Meeting Percentage. Nothing contained in this subsection
(6) shall in any way be construed to suggest or imply that the Corporation or any stockholder shall
not be entitled to contest the validity of any request, whether during or after such five Business
Day period, or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief
in such litigation).
(7) For purposes of these Bylaws, Business Day shall mean any day other than a Saturday, a
Sunday or other day on which banking institutions in the State of New
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York are authorized or obligated by law or executive order to close.
Section 2.4 Notice of Meetings. Written or printed notice of the purpose or
purposes, in the case of a special meeting, and of the time and place of every meeting of the
stockholders shall be given by the Secretary of the Corporation to each stockholder of record
entitled to vote at the meeting, by either placing the notice in the mail, delivering it by
overnight delivery service or transmitting the notice by electronic mail or any other electronic
means at least ten days, but not more than 90 days, prior to the date designated for the meeting,
addressed to each stockholder at such stockholders address appearing on the books of the
Corporation or supplied by the stockholder to the Corporation for the purpose of notice. The
notice of any meeting of stockholders may be accompanied by a form of proxy approved by the Board
of Directors in favor of the actions or persons as the Board of Directors may select. Notice of any
meeting of stockholders shall be deemed waived by any stockholder who attends the meeting in person
or by proxy or who before or after the meeting submits a signed waiver of notice that is filed with
the records of the meeting. Any business of the Corporation may be transacted at an annual meeting
of stockholders without being specifically designated in the notice of such meeting, except such
business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of stockholders except as specifically designated in the notice of
such meeting.
Section 2.5 Organization and Conduct. Every meeting of stockholders shall be
conducted by an individual appointed by the Board of Directors to be chairman of the meeting or, in
the absence of such appointment, by the Chairman of the Board, if any, or, in the case of a vacancy
in the office or absence of the Chairman of the Board, by one of the following officers present at
the meeting: the Vice Chairman of the Board, if any, the President, any Vice President, the
Secretary, the Treasurer or, in the absence of such officers, a chairman chosen by the stockholders
by the vote of a majority of the votes cast by stockholders present in person or by proxy. The
Secretary or, in the Secretarys absence, an individual appointed by the Board of Directors or, in
the absence of such appointment, an individual appointed by the chairman of the meeting shall act
as secretary. In the event that the Secretary presides at a meeting of the stockholders, an
individual appointed by the Board of Directors or the chairman of the meeting, shall record the
minutes of the meeting. The chairman of the meeting shall determine the order of business and all
other matters of procedure at any meeting of stockholders. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the discretion of such
chairman, are appropriate for the proper conduct of the meeting, including, without limitation, (a)
restricting admission to the time set for the commencement of the meeting; (b) limiting attendance
at the meeting to stockholders of record of the Corporation, their duly authorized proxies or other
such individuals as the chairman of the meeting may determine; (c) limiting participation at the
meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter,
their duly authorized proxies or other such individuals as the chairman of the meeting may
determine; (d) limiting the time allotted to questions or comments by participants; (e) maintaining
order and security at the meeting; (f) removing any stockholder or any other individual who refuses
to comply with meeting procedures, rules or guidelines as set forth by the chairman of the meeting;
and (g) recessing or adjourning the meeting to a later date and time and place announced at the
meeting. Unless
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otherwise determined by the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
Section 2.6 Quorum. The presence in person or by proxy of the holders of
shares of stock of the Corporation entitled to cast a majority of the votes entitled to be cast
(without regard to class) shall constitute a quorum at any meeting of the stockholders, except with
respect to any such matter that, under applicable statutes or regulatory requirements, requires
approval by a separate vote of one or more classes of stock, in which case the presence in person
or by proxy of the holders of shares entitled to cast a majority of the votes entitled to be cast
by each such class on such a matter shall constitute a quorum. If, however, such quorum shall not
be present at any meeting of the stockholders, the chairman of the meeting or the stockholders
entitled to vote at such meeting, present in person or by proxy, shall have the power to adjourn
the meeting from time to time to a date not more than 120 days after the original record date
without notice other than announcement at the meeting. At such adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been transacted at the meeting as
originally notified. The stockholders present either in person or by proxy, at a meeting which has
been duly called and convened, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
Section 2.7 Voting. A plurality of all the votes cast at a meeting of the
stockholders duly called and at which a quorum is present shall be sufficient to elect a director;
provided however, that the Board of Directors may amend this Section 2.7 to alter the vote required
to elect directors. Each share may be voted for as many individuals as there are directors to be
elected and for whose election the share is entitled to be voted. A majority of the votes cast at
a meeting of stockholders duly called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before the meeting, unless more than a majority of
the votes cast is required by statute or by the charter of the Corporation. Unless otherwise
provided in the charter, each outstanding share, regardless of class, shall be entitled to one vote
on each matter submitted to a vote at a meeting of the stockholders.
Section 2.8 Proxies. A stockholder may cast the votes entitled to be cast by
the shares of stock owned of record by the stockholder in person or by proxy executed by the
stockholder or by the stockholders duly authorized agent in any manner permitted by law. Such
proxy or evidence of authorization of such proxy shall be filed with the Secretary of the
Corporation before or at the meeting. No proxy shall be valid more than eleven months after its
date unless otherwise provided in the proxy.
Section 2.9 Voting of Stock by Certain Holders. Stock of the Corporation
registered in the name of a corporation, partnership, trust or other entity, if entitled to be
voted, may be voted by the president or a vice president, a general partner or trustee thereof, as
the case may be, or a proxy appointed by any of the foregoing individuals, unless some other person
who has been appointed to vote such stock pursuant to a bylaw or a resolution of the governing body
of such corporation or other entity or agreement of the partners of a partnership presents a
certified copy of such bylaw, resolution or agreement, in which case such person may vote such
stock. Any director or other fiduciary may vote stock registered in his or her name as such
fiduciary, either in person or by proxy. Shares of stock of the Corporation directly or indirectly
owned by it shall
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not be voted at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held by it in a
fiduciary capacity, in which case they may be voted and shall be counted in determining the total
number of outstanding shares at any given time. The Board of Directors may adopt by resolution a
procedure by which a stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a specified person other than
the stockholder. The resolution shall set forth the class of stockholders who may make the
certification, the purpose for which the certification may be made, the form of certification and
the information to be contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing of the stock
transfer books within which the certification must be received by the Corporation; and any other
provisions with respect to the procedure which the Board of Directors considers necessary or
desirable. On receipt of such certification, the person specified in the certification shall be
regarded as, for the purposes set forth in the certification, the stockholder of record of the
specified stock in place of the stockholder who makes the certification.
Section 2.10 Inspectors. The Board of Directors, in advance of any meeting,
may, but need not, appoint one or more individual inspectors or one or more entities that designate
individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails to appear or act,
the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting
or at the meeting by the chairman of the meeting. The inspectors, if any, shall determine the
number of shares outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, and determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders. Each such report
shall be in writing and signed by him or her or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima facie evidence
thereof.
Section 2.11 Advance Notice of Stockholder Nominees for Director and Other
Stockholder Proposals.
(a) Annual Meetings of Stockholders. (1) Nominations of individuals for election to the Board
of Directors and the proposal of other business to be considered by the stockholders may be made at
an annual meeting of stockholders (i) pursuant to the Corporations notice of meeting, (ii) by or
at the direction of the Board of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record both at the time of giving of notice provided for in this Section 2.11(a) and
at the time of the annual meeting, who is entitled to vote at the meeting and who has complied with
this Section 2.11(a). (2) For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of subsection
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(a)(1) of this Section 2.11, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such other business must otherwise be a proper matter for
action by the stockholders. To be timely, a stockholders notice shall set forth all information
required under this Section 2.11 and shall be delivered to the Secretary at the principal executive
office of the Corporation not less than 90 days nor more than 120 days prior to the first
anniversary of the date of mailing of the notice for the preceding years annual meeting; provided,
however, that in the event that the date of the mailing of the notice for the annual meeting is
advanced or delayed by more than 30 days from the first anniversary of the date of mailing of the
notice for the preceding years annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the 120th day prior to the date of mailing of the notice for such annual
meeting and not later than the close of business on the later of the 90th day prior to the date of
mailing of the notice for such annual meeting or the tenth day following the day on which public
announcement of the date of mailing of the notice for such meeting is first made. In no event
shall the public announcement of a postponement or adjournment of an annual meeting commence a new
time period for the giving of a stockholders notice as described above. Such stockholders notice
shall set forth (i) as to each individual whom the stockholder proposes to nominate for election or
reelection as a director, (A) the name, age, business address and residence address of such
individual, (B) the class, series and number of any shares of stock of the Corporation that are
beneficially owned by such individual and the date such shares were acquired and the investment
intent of such acquisition, (C) whether such stockholder believes any such individual is, or is
not, an interested person of the Corporation, as defined in the Investment Company Act of 1940,
as amended, and the rules promulgated thereunder (the Investment Company Act) and information
regarding such individual that is sufficient, in the discretion of the Board of Directors or any
committee thereof or any authorized officer of the Corporation, to make such determination and (D)
all other information relating to such individual that is required to be disclosed in solicitations
of proxies for election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor
provision) under the Exchange Act and the rules thereunder (including such individuals written
consent to being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the stockholder proposes to bring before the meeting,
a description of the business desired to be brought before the meeting, the reasons for proposing
such business at the meeting and any material interest in such business of such stockholder and any
Stockholder Associated Person (as defined below), individually or in the aggregate, including any
anticipated benefit to the stockholder and any Stockholder Associated Person therefrom; (iii) as to
the stockholder giving the notice and any Stockholder Associated Person, the class, series and
number of all shares of stock of the Corporation which are owned beneficially by such stockholder
and by such Stockholder Associated Person, if any, (iv) as to the stockholder giving the notice and
any Stockholder Associated Person covered by clauses (ii) or (iii) of this Section 2.11(a)(2), the
name and address of such stockholder, as they appear on the Corporations stock ledger and current
name and address, if different, and of such Stockholder Associated Person and (v) to the extent
known by t
he stockholder giving the notice, the name and address of any other stockholder
supporting the nominee for election or reelection as a director or the proposal of other business
on the date of such stockholders notice. (3) Notwithstanding anything in this Section 2.11(a) to
the contrary, in the event the Board of Directors increases or decreases the number of directors in
accordance with Article III, Section 3.2 of these Bylaws, and there is no public announcement of
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such action at least 100 days prior to the first anniversary of the date of mailing of the
notice for the preceding years annual meeting, a stockholders notice required by this Section
2.11(a) shall also be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the principal executive
office of the Corporation not later than the close of business on the tenth day following the day
on which such public announcement is first made by the Corporation. (4) For purposes of this
Section 2.11, Stockholder Associated Person of any stockholder shall mean (i) any person
controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any
beneficial owner of shares of stock of the Corporation owned of record or beneficially by such
stockholder and (iii) any person controlling, controlled by or under common control with such
Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations
notice of meeting. Nominations of individuals for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporations notice of meeting, (ii) by or at the direction of the Board of Directors or (iii)
provided that the Board of Directors has determined that directors shall be elected at such special
meeting, by any stockholder of the Corporation who is a stockholder of record both at the time of
giving of notice provided for in this Section 2.11 and at the time of the special meeting, who is
entitled to vote at the meeting and who complied with the notice procedures set forth in this
Section 2.11. In the event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more individuals to the Board of Directors, any such stockholder may nominate an
individual or individuals (as the case may be) for election as a director as specified in the
Corporations notice of meeting, if the stockholders notice required by subsection (a)(2) of this
Section 2.11 shall be delivered to the Secretary at the principal executive office of the
Corporation not earlier than the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such meeting. In no event
shall the public announcement of a postponement or adjournment of a special meeting commence a new
time period for the giving of a stockholders notice as described above.
(c) General. (1) Upon written request by the Secretary or the Board of Directors or any
committee thereof, any stockholder proposing a nominee for election as a director or any proposal
for other business at a meeting of stockholders shall provide, within five Business Days of
delivery of such request (or such other period as may be specified in such request), written
verification, satisfactory in the discretion of the Board of Directors or any committee thereof or
any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted
by the stockholder pursuant to this Section 2.11. If a stockholder fails to provide such written
verification within such period, the information as to which written verification was requested may
be deemed not to have been provided in accordance with this Section 2.11. (2) Only such
individuals who are nominated in accordance with this Section 2.11 shall be eligible for election
as directors, and only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with this Section 2.11. The
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chairman of the meeting shall have the power to determine whether a nomination or any other
business proposed to be brought before the meeting was made or proposed, as the case may be, in
accordance with this Section 2.11. (3) For purposes of this Section 2.11, (a) the date of mailing
of the notice shall mean the date of the proxy statement for the solicitation of proxies for
election of directors and (b) public announcement shall mean disclosure (i) in a press release
reported by the Dow Jones News Service, Associated Press or comparable news service or (ii) in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act or the Investment Company Act. (4) Notwithstanding the foregoing provisions of
this Section 2.11, a stockholder shall also comply with all applicable requirements of state law
and of the Exchange Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.11. Nothing in this Section 2.11 shall be deemed to affect any right of a
stockholder to request inclusion of a proposal in, nor the right of the Corporation to omit a
proposal from, the Corporations proxy statement pursuant to Rule 14a-8 (or any successor
provision) under the Exchange Act.
Section 2.12 Stockholders Consent in Lieu of Meeting. Any action required or
permitted to be taken at any meeting of the stockholders may be taken without a meeting: (1) if a
unanimous consent setting forth the action is given in writing or by electronic transmission by
each shareholder entitled to vote thereon and filed with the minutes, or (2) if the action is
advised, and submitted to the stockholders for approval by the Board and a consent in writing or by
electronic transmission of stockholders entitled to cast not less than the minimum number of votes
that would be needed to authorize or take action at a stockholders meeting is delivered to the
Corporation in accordance with Maryland law. In this second case, notice must be given to each
stockholder not later than 10 days after the effective time of such action.
Section 2.13 Voting by Ballot. Voting on any question or in any election may
be viva voce unless the presiding officer shall order or any stockholder shall demand that voting
be by ballot.
ARTICLE III.
DIRECTORS
DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation shall
be managed under the direction of its Board of Directors.
Section 3.2 Number, Tenure and Qualifications. At any regular meeting or at
any special meeting called for that purpose, a majority of the entire board may establish, increase
or
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decrease the number of directors, provided that the number shall never be less than one (1)
nor more than twelve (12), and the tenure of office of a director shall not be affected by any
decrease in the number of directors. At such time as permitted by
Section 802(a) of Title 3, Subtitle 8 of the MGCL, the Corporation
elects to be subject to Section 3-804(b) of Title 3, Subtitle 8 of the
MGCL.
Section 3.3 Annual and Regular Meetings. An annual meeting of the Board of
Directors shall be held immediately after and at the same place as the annual meeting of
stockholders, no notice other than this Bylaw being necessary. In the event such meeting is not so
held, the meeting may be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors. Regular meetings of the Board
of Directors shall be held from time to time at such places and times as provided by the Board of
Directors by resolution, without notice other than such resolution.
Section 3.4 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board of Directors, the President or by a
majority of the directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix any place as the place for holding any special meeting
of the Board of Directors called by them. The Board of Directors may provide, by resolution, the
time and place for the holding of special meetings of the Board of Directors without notice other
than such resolution.
Section 3.5 Notice. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, electronic mail, facsimile transmission, United
States mail or courier to each director at his or her business or residence address. Notice by
personal delivery, telephone, electronic mail or facsimile transmission shall be given at least 24
hours prior to the meeting. Notice by United States mail shall be given at least three days prior
to the meeting. Notice by courier shall be given at least two days prior to the meeting.
Telephone notice shall be deemed to be given when the director or his or her agent is personally
given such notice in a telephone call to which the director or his or her agent is a party.
Electronic mail notice shall be deemed to be given upon transmission of the message to the
electronic mail address given to the Corporation by the director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of the message to the number given
to the Corporation by the director and receipt of a completed answer back indicating receipt.
Notice by United States mail shall be deemed to be given when deposited in the United States mail
properly addressed, with postage thereon prepaid. Notice by courier shall be deemed to be given
when deposited with or delivered to a courier properly addressed. Neither the business to be
transacted at, nor the purpose of, any annual, regular or special meeting of the Board of Directors
need be stated in the notice, unless specifically required by statute or these Bylaws.
Section 3.6 Quorum. A majority of the directors shall constitute a quorum for
transaction of business at any meeting of the Board of Directors, provided that, if less than a
majority of such directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice, and provided further that if,
pursuant to the charter of the Corporation or these Bylaws, the vote of a majority of a particular
group of directors is required for action, a quorum must also include a majority of such group.
The directors present at a meeting, which has been duly called and convened, may continue to
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transact business until adjournment, notwithstanding the withdrawal of enough directors to
leave less than a quorum.
Section 3.7 Voting. The action of the majority of the directors present at a
meeting at which a quorum is present shall be the action of the Board of Directors, unless the
concurrence of a greater proportion is required for such action by applicable statute or the
charter. If enough directors have withdrawn from a meeting to leave less than a quorum but the
meeting is not adjourned, the action of the majority of the directors still present at such meeting
shall be the action of the Board of Directors, unless the concurrence of a greater proportion is
required for such action by applicable statute or the charter.
Section 3.8 Chairman of the Board. The Board of Directors shall designate one
or more chairmen of the board who shall preside over Board meetings and stockholders meetings at
which he or she must be present. The Board may also designate a Vice Chairman of the Board who
shall perform the same duties as the Chairman.
Section 3.9 Organization. At each meeting of the Board of Directors, the
Chairman of the Board or, in the absence of the Chairman, the Vice Chairman of the Board, if any,
shall act as Chairman. In the absence of both the Chairman and Vice Chairman of the Board, the
Chief Executive Officer or in the absence of the Chief Executive Officer, the President or in the
absence of the President, a director chosen by a majority of the directors present, shall act as
Chairman. The Secretary or, in his or her absence, a person appointed by the Chairman, shall act
as secretary of the meeting.
Section 3.10 Telephone Meetings. Directors may participate in a meeting by
means of a conference telephone or other communications equipment if all persons participating in
the meeting can hear each other at the same time; provided however, this Section 3.10 does not
apply to any action of the directors pursuant to the Investment Company Act that requires the vote
of the directors to be cast in person at a meeting. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 3.11 Written Consent by Directors. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent
in writing to such action is signed by each director and such written consent is filed with the
minutes of proceedings of the Board of Directors; provided, however, this Section 3.11 does not
apply to any action of the directors pursuant to the Investment Company Act that requires the vote
of the directors to be cast in person at a meeting.
Section 3.12 Vacancies. If for any reason any or all the directors cease to
be directors, such event shall not terminate the Corporation or affect these Bylaws or the powers
of the remaining directors hereunder, if any. At such time as
permitted by Section 802(a) of Title 3, Subtitle 8 of the MGCL, the Corporation elects
to be subject to Section 3-804(c)
of Subtitle 8 of Title 3 of the MGCL. Accordingly, at such time, except as may be provided by the
Board of Directors in setting the terms of any class or series of preferred stock, any vacancy and
all vacancies on the Board of Directors may be filled only by the affirmative vote of a majority
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of the remaining directors in office, even if the remaining directors do not constitute a
quorum. Any director elected to fill a vacancy shall serve for the remainder of the full term of
the directorship in which the vacancy occurred and until a successor is elected and qualifies,
subject to any applicable requirements of the Investment Company Act.
Section 3.13 Compensation. Directors shall not receive any stated salary for
their services as directors but, by resolution of the Board of Directors, may receive compensation
per year and/or per meeting and for any service or activity they performed or engaged in as
directors. Directors may be reimbursed for expenses of attendance, if any, at each annual, regular
or special meeting of the Board of Directors or of any committee thereof and for their expenses, if
any, in connection with such service or activity they performed or engaged in as directors; but
nothing herein contained shall be construed to preclude any directors from serving the Corporation
in any other capacity and receiving compensation therefor.
Section 3.14 Loss of Deposits. No director shall be liable for any loss which
may occur by reason of the failure of the bank, trust company, savings and loan association, or
other institution with whom moneys or stock have been deposited.
Section 3.15 Surety Bonds. Unless required by law, no director shall be
obligated to give any bond or surety or other security for the performance of any of his or her
duties.
Section 3.16 Reliance. Each director, officer, employee and agent of the
Corporation shall, in the performance of his or her duties with respect to the Corporation, be
fully justified and protected with regard to any act or failure to act in reliance in good faith
upon the books of account or other records of the Corporation, upon an opinion of counsel or upon
reports made to the Corporation by any of its officers or employees or by the adviser, accountants,
appraisers or other experts or consultants selected by the Board of Directors or officers of the
Corporation, regardless of whether such counsel or expert may also be a director.
ARTICLE IV.
COMMITTEES
COMMITTEES
Section 4.1 Number, Tenure and Qualifications. The Board of Directors may
appoint from among its members an Executive Committee, an Audit Committee, a Compensation
Committee, a Nominating Committee and other committees, composed of one or more directors, to serve
at the pleasure of the Board of Directors.
Section 4.2 Powers. The Board of Directors may delegate to committees
appointed under Section 4.1 of this Article any of the powers of the Board of Directors, except as
prohibited by law.
Section 4.3 Meetings. Notice of committee meetings shall be given in the same
manner as notice for special meetings of the Board of Directors. A majority of the members of the
committee shall constitute a quorum for the transaction of business at any meeting of the
committee. The act of a majority of the committee members present at a meeting shall be the act
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of such committee. The Board of Directors may designate a chairman of any committee, and such
chairman or, in the absence of a chairman, any two members of any committee (if there are at least
two members of the Committee) may fix the time and place of its meeting unless the Board shall
otherwise provide. In the absence of any member of any such committee, the members thereof present
at any meeting, whether or not they constitute a quorum, may appoint another director to act in the
place of such absent member. Each committee shall keep minutes of its proceedings.
Section 4.4 Telephone Meetings. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference
telephone or other communications
equipment if all persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 4.5 Written Consent by Committees. Any action required or permitted
to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting,
if each member of the committee signs a consent in writing to such action and such written consent
is filed with the minutes of proceedings of such committee.
Section 4.6 Vacancies. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the membership of any committee, to fill all
vacancies, to designate alternate members to replace any absent or disqualified member or to
dissolve any such committee. Subject to the power of the Board of Directors, the members of the
committee shall have the power to fill any vacancies on the committee.
ARTICLE V.
OFFICERS
OFFICERS
Section 5.1 Number. The officers of the Corporation shall include a
President, a Chief Executive Officer, a Secretary and a Treasurer and may include one or more Vice
Presidents, a Chief Operating Officer, a Chief Financial Officer, a Chief Investment Officer, and
one or more Managing Directors. In addition, the Board of Directors may from time to time elect
such other officers with such powers and duties as it shall deem necessary or desirable. The
officers of the Corporation shall be elected annually by the Board of Directors, except that the
Chief Executive Officer or President may from time to time appoint one or more Vice Presidents or
other officers. Each officer shall hold office until his or her successor is elected and qualifies
or until death, resignation or removal in the manner hereinafter provided. The same person may
hold any two or more offices except President and Vice President. Election of an officer or agent
shall not of itself create contract rights between the Corporation and such officer or agent.
Section 5.2 Removal and Resignation. Any officer or agent of the Corporation
may be removed, with or without cause, by the Board of Directors if in its judgment the best
interests of the Corporation would be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Any officer of the Corporation may
resign at any time by giving written notice of his or her resignation to the Board of Directors,
the Chairman of the Board, the President or the Secretary. Any resignation shall take effect
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immediately upon its receipt or at such later time specified in the notice of resignation.
The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated
in the resignation. Such resignation shall be without prejudice to the contract rights, if any, of
the Corporation.
Section 5.3 Vacancies. A vacancy in any office may be filled by the Board of
Directors for the balance of the term.
Section 5.4 Chief Executive Officer. The Board of Directors may designate a
Chief Executive Officer. In the absence of such designation, the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall have general
responsibility for implementation of the policies of the Corporation, as determined by the Board of
Directors, and for the management of the business and affairs of the Corporation.
Section 5.5 President. In the absence of a designation of a Chief Executive
Officer by the Board of Directors, the President shall be the Chief Executive Officer. He or she
may execute any deed, mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation or shall be required by law to be otherwise executed, and
in general shall perform all duties incident to the office of President and such other duties as
may be prescribed by the Board of Directors from time to time.
Section 5.6 Chief Financial Officer. The Board of Directors may designate a
Chief Financial Officer. The Chief Financial Officer shall have the responsibilities and duties as
set forth by the Board of Directors or the Chief Executive Officer.
Section 5.7 Chief Investment Officer. The Board of Directors may designate a
Chief Investment Officer. The Chief Investment Officer shall have the responsibilities and duties
as set forth by the Board of Directors or the Chief Executive Officer.
Section 5.8 Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors, committees of the Board of Directors, and
committees of the officers in one or more books provided for that purpose; (b) see that all notices
are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be
custodian of the corporate records and of any seal adopted by the Corporation; (d) keep a register
of the post office address of each stockholder which shall be furnished to the Secretary by such
stockholder; (e) have general charge of the stock transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by the Chief
Executive Officer, the President or the Board of Directors.
Section 5.9 Treasurer. The Treasurer shall have the custody of the funds and
securities of the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. In the absence of a designation of a Chief Financial Officer by the
Board of Directors, the Treasurer shall be the Chief Financial Officer of the
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Corporation. The Treasurer shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and Board of Directors, at the regular meetings of the Board of Directors or whenever it
may so require, an account of all his or her transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, moneys and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation.
Section 5.10 Managing Directors. The Managing Directors, if any, shall serve
as executive officers of the Corporation. The Managing Directors shall perform such duties as
shall be assigned to them by the President, the Chief Executive Officer or the Board of Directors.
Section 5.11 Investment Committee and Other Committees. The President, Chief
Executive Officer, and Board of Directors shall appoint individuals to serve as members of the
Corporations Investment Committee. The Investment Committee shall perform such duties as required
to evaluate investments of the Corporation, and shall perform such duties as shall be assigned to
it by the President, the Chief Executive Officer or the Board of Directors. The President and
Chief Executive Officer may, from time to time, establish other committees.
ARTICLE VI.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1 Contracts. The Board of Directors may authorize any officer or
agent to enter into any contract or to execute and deliver any instrument in the name of and on
behalf of the Corporation and such authority may be general or confined to specific instances. Any
agreement, deed, mortgage, lease or other document shall be valid and binding upon the Corporation
when authorized or ratified by action of the Board of Directors and executed by an authorized
person.
Section 6.2 Checks and Drafts. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of the Corporation
shall be signed by such officer or agent of the Corporation in such manner as shall from time to
time be determined by the Board of Directors.
Section 6.3 Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may designate.
ARTICLE VII.
STOCK
STOCK
Section 7.1 Certificates; Required Information. In the event that the
Corporation
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issues shares of stock represented by certificates, such certificates shall be signed by the
officers of the Corporation in the manner permitted by the MGCL and contain the statements and
information required by the MGCL. In the event that the Corporation issues shares of stock without
certificates, the Corporation shall provide to holders of such shares a written statement of the
information required by the MGCL to be included on stock certificates.
Section 7.2 Transfers When Certificates Issued. Upon surrender to the
Corporation or the transfer agent of the Corporation of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old certificate and record
the transaction upon its books. The Corporation shall be entitled to treat the holder of record of
any share of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or on the part of any other person,
whether or not it shall have express or other notice thereof, except as otherwise provided by the
laws of the State of Maryland. Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the charter of the Corporation and all of the terms and
conditions contained therein.
Section 7.3 Replacement Certificate. The President, the Secretary, the
Treasurer or any officer designated by the Board of Directors may direct a new certificate to be
issued in place of any certificate previously issued by the Corporation alleged 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 the issuance of a new certificate,
an officer designated by the Board of Directors may, in his or her discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or the owners legal representative to advertise the same in such manner as he or she shall require
and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any loss or
claim which may arise as a result of the issuance of a new certificate.
Section 7.4 Closing of Transfer Books or Fixing of Record Date. The Board of
Directors may set, in advance, a record date for the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders or determining stockholders entitled to
receive payment of any dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any case, shall not be
prior to the close of business on the day the record date is fixed and shall be not more than 90
days and, in the case of a meeting of stockholders, not less than ten days, before the date on
which the meeting or particular action requiring such determination of stockholders of record is to
be held or taken. In lieu of fixing a record date, the Board of Directors may provide that the
stock transfer books shall be closed for a stated period but not longer than 20 days. If the stock
transfer books are closed for the purpose of determining stockholders entitled to notice of or to
vote at a meeting of stockholders, such books shall be closed for at least ten days before the date
of such meeting. If no record date is fixed and the stock transfer books are not closed for the
determination of stockholders, (a) the record date for the determination of stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of business on the day
on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the
closer date to the meeting; and (b) the record date for the determination of stockholders entitled
to
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receive payment of a dividend or an allotment of any other rights shall be the close of
business on the day on which the resolution of the directors, declaring the dividend or allotment
of rights, is adopted. When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall apply to any
adjournment thereof, except when (i) the determination has been made through the closing of the
transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to a
date more than 120 days after the record date fixed for the original meeting, in either of which
case a new record date shall be determined as set forth herein.
Section 7.5 Stock Ledger. The Corporation shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an original or duplicate
share ledger containing the name and address of each stockholder and the number of shares of each
class held by such stockholder.
Section 7.6 Fractional Stock; Issuance of Units. The Board of Directors may
issue fractional stock or provide for the issuance of scrip, all on such terms and under such
conditions as they may determine. Notwithstanding any other provision of the charter or these
Bylaws, the Board of Directors may issue units consisting of different securities of the
Corporation. Any security issued in a unit shall have the same characteristics as any identical
securities issued by the Corporation, except that the Board of Directors may provide that for
specified period securities of the Corporation issued in such unit may be transferred on the books
of the Corporation only in such unit.
ARTICLE VIII.
ACCOUNTING YEAR
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution.
ARTICLE IX.
DISTRIBUTIONS
DISTRIBUTIONS
Section 9.1 Authorization. Dividends and other distributions upon the stock
of the Corporation may be authorized by the Board of Directors, subject to the provisions of law
and the charter of the Corporation. Dividends and other distributions may be paid in cash,
property or stock of the Corporation, subject to the provisions of law and the charter.
Section 9.2 Contingencies. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation available for dividends
or other distributions such sum or sums as the Board of Directors may from time to time, in its
absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends or
other distributions, for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of the Corporation,
and the Board of Directors may modify or abolish any such reserve.
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ARTICLE X.
SEAL
SEAL
Section 10.1 Seal. The Board of Directors may authorize the adoption of a
seal by the Corporation. The seal shall contain the name of the Corporation and the year of its
incorporation and the words Incorporated Maryland. The Board of Directors may authorize one or
more duplicate seals and provide for the custody thereof.
Section 10.2 Affixing Seal. Whenever the Corporation is permitted or required
to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule
or regulation relating to a seal to place the word (SEAL) adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE XI.
INDEMNIFICATION AND ADVANCE OF EXPENSES
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law and the Investment Company Act of 1940, in
effect from time to time, the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a) any individual who is a present or
former director or officer of the Corporation and who is made, or threatened to be made, a party to
the proceeding by reason of his or her service in that capacity or (b) any individual who, while a
director or officer of the Corporation and at the request of the Corporation, serves or has served
as a director, officer, partner or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise and who is made a party to the proceeding by
reason of his or her service in any such capacity. The Corporation may, with the approval of its
Board of Directors, provide such indemnification and advance for expenses to a person who served a
predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any
employee or agent of the Corporation or a predecessor of the Corporation upon receipt of an
undertaking by or on behalf of such indemnified person to repay amounts that have so been paid if
it is ultimately determined that indemnification of such expenses is not authorized under these
Bylaws. Neither the amendment nor repeal of this Article, nor the adoption or amendment of any
other provision of the Bylaws or charter of the Corporation inconsistent with this Article, shall
apply to or affect in any respect the applicability of the preceding paragraph with respect to any
act or failure to act that occurred prior to such amendment, repeal or adoption. No provision of
this Article XI shall be effective to protect or purport to protect any director or officer of the
Corporation against liability to the Corporation or its stockholders with respect to any matter as
to which such person shall have been finally adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his or her action was in the best interest of the
Corporation by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office.
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ARTICLE XII.
WAIVER OF NOTICE
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the Corporation or
these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose
of any meeting need be set forth in the waiver of notice, unless specifically required by statute.
The attendance of any person at any meeting shall constitute a waiver of notice of such meeting,
except where such person attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE XIII.
INSPECTION OF RECORDS
INSPECTION OF RECORDS
A stockholder who is otherwise eligible under the MGCL to inspect certain books and records of
the Corporation shall have no right to inspect any such books and records if the Board of Directors
determines that such stockholder has an improper purpose for such inspection.
ARTICLE XIV.
INVESTMENT COMPANY ACT
INVESTMENT COMPANY ACT
If and to the extent that any provision of the MGCL, including, without limitation, Subtitle 6
and, if then applicable, Subtitle 7, of Title 3 of the MGCL, or any provision of the charter or
these Bylaws conflicts with any provision of the Investment Company Act, the applicable provision
of the Investment Company Act shall control.
ARTICLE XV.
AMENDMENT OF BYLAWS
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws.
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