form_8-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________________________
FORM
8-K
CURRENT
REPORT
Pursuant
to section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of Report (Date of Earliest Event Reported): November 4,
2009
BLACKROCK
KELSO CAPITAL CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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001-33559
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20-2725151
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(State
or other jurisdiction of
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(Commission
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(IRS
Employer
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incorporation
or organization)
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File
Number)
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Identification
Number)
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40
East 52nd
Street
New
York, NY 10022
(Address
of principal executive offices)
(212)
810-5800
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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[
]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[
]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
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240.14d-2(b))
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[
]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
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240.13e-4(c))
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__________________________________
ITEM
5.03.
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AMENDMENTS
TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
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On
and effective November 4, 2009, the Board of Directors (the “Board”) of
BlackRock Kelso Capital Corporation (the “Company”) amended and restated the
By-laws of the Company (the “By-laws”). The following summary of the
amendments to the By-laws is qualified in its entirety by reference to the
amended and restated By-laws filed as Exhibit 3.1 attached hereto and
incorporated herein by reference. Among the changes to the By-laws,
the Board:
·
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Clarified
how business (including without limitation nominations for the election of
directors) may be properly brought before an annual or special meeting of
stockholders, and set forth requirements for proper notice including
certain “advance notice” provisions for stockholders proposing business at
stockholder meetings.
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·
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Established
that the number of inspectors of election at any meeting of stockholders
shall be one unless the directors of the Company, and not the majority of
shares present at such meeting, shall determine to appoint
three.
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·
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Established
that, if there is no election contest at a meeting of stockholders and a
majority of the outstanding shares of capital stock entitled to vote at
such stockholders meeting are not present in person or by proxy, the
holders of one-third of such shares (and one-third of the shares of any
class or series) shall constitute a quorum to the extent permitted by
applicable law.
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·
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Clarified
how a person can be nominated for election as a director to the Board and
to establish notice and disclosure requirements for such nomination,
including certain “advance notice” provisions requiring stockholders
nominating directors at stockholder meetings to provide proper timely
notice and to submit specific information concerning the stockholders and
their nominee(s).
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·
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Clarified
call and notice requirements, if any, for regular and special meetings of
the directors.
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·
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Established
requirements and procedures for the resignation and removal of
directors.
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·
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Established
requirements and procedures to fill vacancies in the
Board.
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·
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Provided
that stockholders shall have no authority to adopt, amend or repeal
By-laws except to the extent required by law.
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·
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Clarified
how notice may be delivered.
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·
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Made
various technical corrections and non-substantive
changes. |
The
By-laws, as amended and restated by the Board, are filed as Exhibit 3.1 attached
hereto, and are incorporated herein by reference and qualify in its entirety the
foregoing summary of the amendments.
ITEM
5.05.
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AMENDMENT
TO REGISTRANT’S CODE OF ETHICS, OR WAIVER OF A PROVISION OF THE CODE OF
ETHICS.
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The
Company maintains a written Code of Ethics (the “Code”), approved by the
Company’s Board, which is reasonably designed to prevent fraudulent, deceptive
or manipulative acts by persons affiliated with the Company and the Company’s
investment adviser, in connection with their personal securities transactions
involving securities held or to be acquired by the Company.
On
and effective November 4, 2009, the Board amended the Code to reflect certain
corrections and changes with regard to specific paragraph references and
references to defined terms, and to properly identify obligated parties within
specific sections of the Code.
A
copy of the Code is available on the Company’s website at
http://blackrockkelso.com/InvestorRelations/CorporateGovernance.
ITEM
9.01.
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FINANCIAL
STATEMENTS AND EXHIBITS.
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(d)
Exhibits.
Exhibit
Number
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Description
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3.1
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By-laws
of BlackRock Kelso Capital Corporation
(as
Amended and Restated on November 4, 2009)
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
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BLACKROCK
KELSO CAPITAL CORPORATION
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Date: November
9, 2009
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By:
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/s/
Frank D. Gordon
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Name:
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Frank
D. Gordon
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Title:
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Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
Number
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Description
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3.1
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By-laws
of BlackRock Kelso Capital Corporation
(As
Amended and Restated on November 4, 2009)
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exh_3-1.htm
AMENDED
AND RESTATED
BY-LAWS
OF
BLACKROCK
KELSO CAPITAL CORPORATION
TABLE
OF CONTENTS
Page
ARTICLE I
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Stockholder
Meetings
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1.1
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Place
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1
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1.2
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Annual Meeting
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1
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1.3
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Notice
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1
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1.4
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Chairman
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2
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1.5
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Proxies; Voting
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2
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1.6
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Inspectors of Election
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3
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1.7
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Records at Stockholder
Meetings
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3
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1.8
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Quorum at Stockholder
Meetings
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3
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ARTICLE
II
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Directors
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2.1
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General Powers
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4
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2.2
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Number, Tenure and
Qualifications
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4
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2.3
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Regular and Special
Meetings
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5
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2.4
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Chairman; Records
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6
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2.5
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Resignation and Removal
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6
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2.6
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Vacancies
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6
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ARTICLE III
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Officers
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3.1
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Officers of the BDC
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7
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3.2
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Election and Tenure
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7
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3.3
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Removal of Officers
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7
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3.4
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Vacancies
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7
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3.5
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Bonds and Surety
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7
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3.6
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Chairman, Chief Executive Officer, and Vice
Presidents
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7
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3.7
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Secretary
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8
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3.8
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Treasurer
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8
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3.9
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Other Officers and Duties
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8
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3.10
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Salaries
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9
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ARTICLE IV
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Committees
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4.1
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Number, Tenure and
Qualifications
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9
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4.2
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Powers
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9
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4.3
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Meetings
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9
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4.4
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Telephone Meetings
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9
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4.5
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Written Consent By
Committees
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10
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4.6
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Vacancies
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10
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ARTICLE V
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Miscellaneous
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5.1
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Contracts
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10
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5.2
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Checks and Drafts
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10
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5.3
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Deposits
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10
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5.4
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Signatures
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10
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5.5
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Seal
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10
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5.6
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Affixing Seal
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10
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5.7
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Accounting Year
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10
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5.8
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Authorization of
Distributions
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11
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5.9
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Contingencies
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11
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5.10
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Investment Policy
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11
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ARTICLE VI
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Stock
Transfers
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6.1
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Certificates
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11
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6.2
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Transfer Agents, Registrars and the
Like
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11
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6.3
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Transfer of Shares
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12
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6.4
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Replacement Certificate
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12
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6.5
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Closing of Transfer Books or Fixing of Record
Date
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12
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6.6
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Stock Ledger
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13
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6.7
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Fractional Stock; Issuance of
Units
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13
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6.8
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Registered Stockholders
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13
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ARTICLE
VII
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Amendment
of By-Laws
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7.1
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Amendment and Repeal of
By-Laws
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13
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ARTICLE
VIII
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Notice
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8.1
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Notices
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14
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8.2
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Waiver of Notices
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14
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BLACKROCK KELSO CAPITAL
CORPORATION
BY-LAWS
These
By-Laws, amended and restated as of November 4, 2009, are made and adopted
pursuant to the Certificate of Incorporation establishing BlackRock Kelso
Capital Corporation (hereinafter the "BDC"), dated as of April 13, 2005, as from
time to time amended (hereinafter the "Certificate"). All words and
terms capitalized in these By-Laws shall have the meaning or meanings set forth
for such words or terms in the Certificate.
ARTICLE
I
STOCKHOLDER
MEETINGS
1.1 Place. All
meetings of stockholders shall be held at the principal executive office of the
BDC or at such other place as shall be set by the Board of Directors and stated
in the notice of the meeting.
1.2 Annual
Meeting. An annual meeting of the stockholders for the
election of directors and the transaction of any business within the powers of
the BDC shall be held on a date and at the time set by the Board of
Directors.
1.3 Notice. Written
notice of all meetings of stockholders, stating the time and place of the
meeting, shall be given by the corporate secretary of the BDC (hereinafter the
“Secretary”) by mail to each stockholder of record entitled to vote thereat at
its registered address, mailed at least ten (10) days and not more than sixty
(60) days before the meeting or otherwise in compliance with applicable
law. Such notice will also specify the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such meeting. No business (including
without limitation nominations for the election of directors) may be transacted
at an annual or special meeting of stockholders, other than business that is
either (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (ii) otherwise properly brought before the meeting by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (iii) in the case of an annual meeting, otherwise properly brought
before the meeting by any stockholder of the BDC, whether such proposal is
included in the BDC's proxy statement or a proxy statement prepared by one or
more stockholders, (A) who is a stockholder of record on the date notice is
given as provided for in this Article I Section 1.3 and on the record date for
the determination of stockholders entitled to notice of and to vote at such
annual meeting and (B) who complies with the notice procedures set forth in this
Article I Section 1.3 or, with respect to the election of Directors, set forth
in Section 2.2 of Article II.
(a) In
addition to any other applicable requirements, for business to be properly
brought before a meeting by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
BDC.
(i) To
be timely, a stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the BDC (A) in the
case of an annual meeting, not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the meeting was
mailed or such public disclosure of the date of the meeting was made, whichever
first occurs; and (B) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of business on
the fifth (5th) day following the day on which notice of the date of the special
meeting was mailed or public disclosure of the date of the special meeting was
made, whichever first occurs.
(ii) Except
for notices regarding nominations for the election of directors, which notices
shall be prepared in accordance with Article II Section 2.2(c)(ii), to be in
proper written form, a stockholder's notice to the Secretary must set forth as
to each matter such stockholder proposes to bring before the meeting (A) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (B) the name and record
address of such stockholder, (C) the class or series and number of shares of the
BDC which are owned beneficially or of record by such stockholder, (D) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (E) a representation that such stockholder
intends to appear in person or by proxy at the meeting to bring such business
before the meeting.
(b) No
business shall be conducted at a meeting of stockholders except business brought
before the meeting in accordance with the procedures set forth in this Article I
Section 1.3 or Article II Section 2.2, as the case may be; provided, however,
that, once business has been properly brought before the meeting in accordance
with such procedures, nothing in this Article I Section 1.3 shall be deemed to
preclude discussion by any stockholder of any such business. If the
chairman of a meeting determines that business was not properly brought before
the meeting in accordance with the foregoing procedures, the chairman of the
meeting shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
1.4 Chairman. The
Chairman shall act as chairman at all meetings of the stockholders; in the
Chairman's absence, the Director or Directors present at each meeting may elect
a temporary chairman for the meeting, who may be one of themselves.
1.5 Proxies;
Voting. Stockholders may vote either in person or by duly
executed proxy and each full share represented at the meeting shall have one
vote, all as provided in Article IV of the Certificate.
1.6 Inspectors of
Election. In advance of any meeting of stockholders, the
Directors may appoint Inspectors of Election to act at the meeting or any
adjournment thereof. If Inspectors of Election are not so appointed,
the Chairman of any meeting of stockholders may, and on the request of any
stockholder or stockholder proxy shall, appoint Inspectors of Election of the
meeting. The number of Inspectors of Election shall be one unless the
Directors shall determine to appoint three. In case any person
appointed as Inspector of Election fails to appear or fails or refuses to act,
the vacancy may be filled by appointment made by the Directors in advance of the
convening of the meeting or at the meeting by the person acting as
chairman. The Inspectors of Election shall determine the number of
shares of stock of the BDC (the “Shares”) outstanding, the Shares represented at
the meeting, the existence of a quorum, the authenticity, validity and effect of
proxies, shall receive votes, ballots or consents, shall hear and determine all
challenges and questions in any way arising in connection with the right to
vote, shall count and tabulate all votes or consents, determine the results, and
do such other acts as may be proper to conduct the election or vote with
fairness to all stockholders. If there are three Inspectors of
Election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. On request of
the Chairman of the meeting, or of any stockholder or stockholder proxy, the
Inspectors of Election shall make a report in writing of any challenge or
question or matter determined by them and shall execute a certificate of any
facts found by them.
1.7 Records at Stockholder
Meetings. At each meeting of the stockholders, there shall be
made available for inspection at a convenient time and place during normal
business hours, if requested by stockholders, the minutes of the last previous
Annual or Special Meeting of stockholders of the BDC and a list of the
stockholders of the BDC, as of the record date of the meeting or the date of
closing of transfer books, as the case may be. Such list of
stockholders shall contain the name and the address of each stockholder in
alphabetical order and the number of Shares owned by such
stockholder. Stockholders shall have such other rights and procedures
of inspection of the books and records of the BDC as are granted to stockholders
of a Delaware business corporation.
1.8 Quorum at Stockholder
Meetings. The holders of a majority of the outstanding shares
of capital stock entitled to vote at the meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders, except as otherwise provided by the Delaware General Corporation
Law or the Certificate. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a
quorum. If a quorum is not present, the chairman of the meeting or
the holders of a majority of the shares present in person or represented by
proxy at the meeting, and entitled to vote at the meeting, may adjourn the
meeting to another time and/or place. When a specified item of
business requires a vote by the holders of a class or series of shares of
capital stock (if the BDC shall then have outstanding shares of more than one
class or series) voting as a class or series, the holders of a majority of the
shares of such class or series shall constitute a quorum (as to such class or
series) for the transaction of such item of business, except as otherwise
provided by the Delaware General Corporation Law or by the
Certificate. Notwithstanding the foregoing, if there is no election
contest and a majority of the outstanding shares of capital stock entitled to
vote at the meeting are not present in person or by proxy, the holders of
one-third of such shares (and one-third of the shares of any class or series)
shall constitute a quorum to the extent permitted by applicable
law.
ARTICLE
II
DIRECTORS
2.1 General
Powers. The business and affairs of the BDC shall be managed
under the direction of its Board of Directors.
2.2 Number, Tenure and
Qualifications.
(a) At
any regular meeting or at any special meeting called for that purpose, a
majority of the entire Board of Directors may establish, increase or decrease
the number of directors, provided that the number thereof shall never be less
than two, nor more than nine, and further provided that the tenure of office of
a director shall not be affected by any decrease in the number of directors. The
term of office of a Director shall be as provided in the
Certificate.
(b) The
Directors shall be elected at an annual meeting of the stockholders or special
meeting in lieu thereof called for that purpose, except as provided in the
Certificate or in Section 2.6 of this Article II. Each Director
elected shall hold office until his or her successor shall have been elected and
shall have qualified. The term of office of a Director shall
terminate and a vacancy shall occur in the event of the death, resignation,
removal, bankruptcy, adjudicated incompetence or other incapacity to perform the
duties of the office of the Director.
(c) Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the BDC, whether such person is submitted
to stockholders in the BDC 's proxy statement or a proxy statement prepared by
one or more stockholders, except as may be otherwise provided in the Certificate
with respect to the right of holders of preferred stock of the BDC to nominate
and elect a specified number of directors in certain
circumstances. Nominations of persons for election to the Board of
Directors at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, may be made (i) by or
at the direction of the Board of Directors (or any duly authorized committee
thereof) or (ii) by any stockholder of the BDC (A) who is a stockholder of
record on the date of the giving of the notice provided for in this Article II
Section 2.2 and on the record date for the determination of stockholders
entitled to notice of and to vote at such meeting and (B) who complies with the
notice procedures set forth in this Article II Section 2.2.
(d) In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the BDC.
(i) To
be timely, a stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the BDC in accordance
with Article I Section 1.3(a)(i).
(ii) To
be in proper written form, a stockholder's notice to the Secretary must set
forth (A) as to each person whom the stockholder proposes to nominate for
election as a director (1) the name, age, business address and residence address
of the person, (2) the principal occupation or employment of the person, (3) the
class or series and number of Shares of the BDC which are owned beneficially or
of record by the person, if any, and (4) any other information relating to the
person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act of
1934 (the “Exchange Act”); and (B) as to the stockholder giving the notice (1)
the name and record address of such stockholder, (2) the class or series and
number of Shares of the BDC which are owned beneficially or of record by such
stockholder, (3) a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person or persons
(including their names) in connection with which the nomination(s) are made by
such stockholder, (4) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its notice
and (5) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
(e) No
person shall be eligible for election as a director of the BDC unless nominated
in accordance with the procedures set forth in this Article II Section
2.2. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
2.3 Regular and Special
Meetings. Regular meetings of the Directors may be held
without call or notice and regular meetings shall generally be held
quarterly. Special meetings of the Directors may be called by the
Chairman, the Chief Executive Officer, the Secretary or at the request in
writing of a majority of the Directors then in office. Notice of the
date, time and place of each special meeting shall be (i) mailed by regular mail
to each Director at the Director’s designated address at least six days before
the special meeting, (ii) sent by overnight courier to the Director’s designated
address at least two days before the special meeting (with delivery scheduled to
occur no later than the day before the meeting), or (iii) given orally by
telephone or other means, or by email, telegraph or telecopy, or by any other
means comparable to any of the foregoing, to each Director at the Director’s
designated address at least twenty-four hours before the meeting.
Except
to the extent required by law, neither the business to be transacted at, nor the
purpose of, any meeting of the Board of Directors need be stated in any notice
or waiver of notice of such meeting, and no notice need be given of action
proposed to be taken by unanimous written consent.
2.4 Chairman;
Records. The Chairman shall act as chairman at all meetings of
the Directors; in absence of a chairman, the Directors present shall elect one
of their number to act as temporary chairman. The results of all
actions taken at a meeting of the Directors, or by unanimous written consent of
the Directors, shall be recorded by the person appointed by the Board of
Directors as the meeting secretary.
2.5 Resignation and Removal. Any of the
Directors may resign (without need for prior or subsequent accounting) by
an instrument in writing signed by such Director and delivered or mailed to the
Directors, the Chairman, the Chief Executive Officer, or the Secretary and such
resignation shall be effective upon such delivery, or at a later date according
to the terms of the instrument. Any of the Directors may be removed,
provided the aggregate number of Directors after such removal shall not be less
than the minimum number set forth in the Certificate, only by the proportion of
votes of the stockholders that are set forth in the Certificate as the required
proportion of votes for removal of Director, and with or without cause as may be
permitted by the Certificate or as required by applicable law. Upon
the resignation or removal of a Director, each such resigning or removed
Director shall execute and deliver to the BDC such documents as may be required
by applicable law or the Certificate or as may be requested by the remaining
Directors as being in the best interests of the BDC and its
stockholders. Upon the incapacity or death of any Director, such
Director’s legal representative shall execute and deliver to the BDC
on such Director’s behalf such documents as the remaining Directors shall
require as provided in the preceding sentence.
2.6 Vacancies. Whenever
a vacancy in the Board of Directors shall occur, the remaining Directors may
fill such vacancy by appointing an individual by a written instrument signed by
a majority of the Directors, whether or not sufficient to constitute a quorum,
then in office or may leave such vacancy unfilled or may reduce the number of
Directors, so long as at all times the composition of the Board of Directors
complies with the requirements of Sections 56(a) and 15(f)(1) of the Investment
Company Act of 1940. The aggregate number of Directors after such
reduction shall not be less than the minimum number required by the
Certificate. If the stockholders of any class or series of Shares 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. Any vacancy created by an increase
in Directors may be filled by the appointment of an individual made by a written
instrument signed by a majority of the Directors then in
office. Whenever a vacancy in the number of Directors shall occur,
until such vacancy is filled as provided herein, the Directors in office,
regardless of their number, shall have all the powers granted to the Directors
and shall discharge all the duties imposed upon the Directors.
ARTICLE
III
OFFICERS
3.1 Officers of the
BDC. The officers of the BDC shall consist of a Chairman, a
Chief Executive Officer, a Secretary, a Treasurer and such other officers or
assistant officers as may be elected or authorized by the
Directors. Any two or more of the offices may be held by the same
person, except that the same person may not be both Chief Executive Officer and
Secretary. The Chairman shall be a Director, but no other officer of
the BDC need be a Director.
3.2 Election and
Tenure. At the initial organization meeting, the Directors
shall elect the Chairman, Chief Executive Officer, Secretary, Treasurer and such
other officers as the Directors shall deem necessary or appropriate in order to
carry out the business of the BDC. Such officers shall serve at the
pleasure of the Directors or until their successors have been duly elected and
qualified. The Directors may fill any vacancy in office or add any
additional officers at any time.
3.3 Removal of
Officers. Any officer may be removed at any time, with or
without cause, by action of a majority of the Directors. This
provision shall not prevent the making of a contract of employment for a
definite term with any officer and shall have no effect upon any cause of action
which any officer may have as a result of removal in breach of a contract of
employment. Any officer may resign at any time by notice in writing
signed by such officer and delivered or mailed to the Chairman, Chief Executive
Officer, or Secretary, and such resignation shall take effect immediately upon
receipt by the Chairman, Chief Executive Officer, or Secretary, or at a later
date according to the terms of such notice in writing.
3.4 Vacancies. A
vacancy in any office may be filled by the Board of Directors for the balance of
the term.
3.5 Bonds and
Surety. Any officer may be required by the Directors to be
bonded for the faithful performance of such officer's duties in such amount and
with such sureties as the Directors may determine.
3.6 Chairman, Chief Executive
Officer, and Vice Presidents. The Chairman shall, if present,
preside at all meetings of the stockholders and of the Directors and shall
exercise and perform such other powers and duties as may be from time to time
assigned to such person by the Directors. Subject to such supervisory
powers, if any, as may be given by the Directors to the Chairman, the Chief
Executive Officer shall be the chief executive officer of the BDC and, subject
to the control of the Directors, shall have general supervision, direction and
control of the business of the BDC and of its employees and shall exercise such
general powers of management as are usually vested in the office of Chief
Executive Officer of a corporation. Subject to direction of the
Directors, the Chairman and the Chief Executive Officer shall each have power in
the name and on behalf of the BDC to execute any and all loans, documents,
contracts, agreements, deeds, mortgages, registration statements, applications,
requests, filings and other instruments in writing, and to employ and discharge
employees and agents of the BDC. Unless otherwise directed by the
Directors, the Chairman and the Chief Executive Officer shall each have full
authority and power, on behalf of all of the Directors, to attend and to act and
to
vote,
on behalf of the BDC at any meetings of business organizations in which the BDC
holds an interest, or to confer such powers upon any other persons, by executing
any proxies duly authorizing such persons. The Chairman and the Chief
Executive Officer shall have such further authorities and duties as the
Directors shall from time to time determine. In the absence or
disability of the Chief Executive Officer, the Vice-Presidents in order of their
rank as fixed by the Directors or, if more than one and not ranked, the
Vice-President designated by the Directors, shall perform all of the duties of
the Chief Executive Officer, and when so acting shall have all the powers of and
be subject to all of the restrictions upon the Chief Executive
Officer. Subject to the direction of the Directors, and of the Chief
Executive Officer, each Vice-President shall have the power in the name and on
behalf of the BDC to execute any and all instruments in writing, and, in
addition, shall have such other duties and powers as shall be designated from
time to time by the Directors or by the Chief Executive Officer.
3.7 Secretary. The
Secretary shall maintain the minutes of all meetings of, and record all votes
of, stockholders, Directors and the Executive Committee, if any. The
Secretary shall be custodian of the seal of the BDC, if any, and the Secretary
(and any other person so authorized by the Directors) shall affix the seal, or
if permitted, facsimile thereof, to any instrument executed by the BDC which
would be sealed by a Delaware business corporation and shall attest the seal and
the signature or signatures of the officer or officers executing such instrument
on behalf of the BDC. The Secretary shall also perform any other
duties commonly incident to such office in a Delaware business corporation, and
shall have such other authorities and duties as the Directors shall from time to
time determine.
3.8 Treasurer. Except
as otherwise directed by the Directors, the Treasurer shall have the general
supervision of the monies, funds, securities, notes receivable and other
valuable papers and documents of the BDC, and shall have and exercise under the
supervision of the Directors and of the Chief Executive Officer all powers and
duties normally incident to the office. The Treasurer may endorse for
deposit or collection all notes, checks and other instruments payable to the BDC
or to its order. The Treasurer shall deposit all funds of the BDC in
such depositories as the Directors shall designate. The Treasurer
shall be responsible for such disbursement of the funds of the BDC as may be
ordered by the Directors or the Chief Executive Officer. The
Treasurer shall keep accurate account of the books of the BDC's transactions
which shall be the property of the BDC, and which together with all other
property of the BDC in the Treasurer's possession, shall be subject at all times
to the inspection and control of the Directors. Unless the Directors
shall otherwise determine, the Treasurer shall be the principal accounting
officer of the BDC and shall also be the principal financial officer of the
BDC. The Treasurer shall have such other duties and authorities as
the Directors shall from time to time determine. Notwithstanding
anything to the contrary herein contained, the Directors may authorize any
adviser, administrator, manager or transfer agent to maintain bank accounts and
deposit and disburse funds.
3.9 Other Officers and
Duties. The Directors may elect such other officers and
assistant officers as they shall from time to time determine to be necessary or
desirable in order to conduct the business of the BDC. Assistant
officers shall act generally in the absence of the officer whom they assist and
shall assist that officer in the duties of the office. Each officer,
employee and agent of the BDC shall have such other duties and authority as may
be conferred upon such person by the Directors or delegated to such person by
the Chief Executive Officer.
3.10 Salaries. The
salaries and other compensation of the officers shall be fixed from time to time
by the Board of Directors and no officer shall be prevented from receiving such
salary or other compensation by reason of the fact that he is also a
director.
ARTICLE
IV
COMMITTEES
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
and other committees, composed of one or more directors, to serve at the
pleasure of the Board of Directors.
4.2 Powers. The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The By-laws may provide that in the absence or disqualification
of a member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in the By-laws of the Corporation, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any By-law of the Corporation.
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 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.
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 similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
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 a consent in writing to such action is signed by each member of the
committee and such written consent is filed with the minutes of proceedings of
such committee.
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.
ARTICLE
V
MISCELLANEOUS
5.1 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 BDC
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 BDC when authorized or ratified by action of the Board of Directors and
executed by an authorized person.
5.2 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 BDC
shall be signed by such officer or agent of the BDC in such manner as shall from
time to time be determined by the Board of Directors.
5.3 Deposits. All
funds of the BDC not otherwise employed shall be deposited from time to time to
the credit of the BDC in such banks, trust companies or other depositories as
the Board of Directors may designate.
5.4 Signatures. All
contracts and other instruments shall be executed on behalf of the BDC by its
properly authorized officers, agent or agents, as provided in the Certificate or
By-laws or as the Directors may from time to time by resolution
provide.
5.5 Seal. The
Board of Directors may authorize the adoption of a seal by the BDC. The seal
shall contain the name of the BDC and the year of its incorporation and the
words "Incorporated Delaware." The Board of Directors may authorize one or more
duplicate seals and provide for the custody thereof.
5.6 Affixing
Seal. Whenever the BDC 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
BDC.
5.7 Accounting
Year. The Board of Directors shall have the power, from time
to time, to fix the fiscal year of the BDC by a duly adopted
resolution.
5.8 Authorization of
Distributions. Dividends and other distributions upon the
stock of the BDC may be authorized by the Board of Directors, subject to the
provisions of law and the Certificate of Incorporation. Dividends and other
distributions may be paid in cash, property or stock of the BDC, subject to the
provisions of law and the Certificate of Incorporation.
5.9 Contingencies. Before
payment of any dividends or other distributions, there may be set aside out of
any assets of the BDC 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 BDC or for such other purpose as the Board of Directors shall determine to
be in the best interest of the BDC, and the Board of Directors may modify or
abolish any such reserve.
5.10 Investment
Policy. Subject to applicable law and the provisions of the
Certificate of Incorporation, the Board of Directors may from time to time
adopt, amend, revise or terminate any policy or policies with respect to
investments by the BDC as it shall deem appropriate in its sole
discretion.
ARTICLE
VI
STOCK
TRANSFERS
6.1 Certificates. The
shares of stock of the BDC shall be represented by a certificate, unless and
until the Board of Directors adopts a resolution permitting shares to be
uncertificated. Notwithstanding the adoption of any such resolution
providing for uncertificated shares, every holder of stock of the BDC
theretofore represented by certificates and, upon request, every holder of
uncertificated shares, shall be entitled to a certificate or certificates which
shall represent and certify the number of shares of each class of stock held by
him, her or it in the BDC. Each certificate shall be signed by the
Chairman or a vice president and countersigned by the secretary or an assistant
secretary or the treasurer or an assistant treasurer and may be sealed with the
seal, if any, of the BDC. The signatures may be either manual or facsimile.
Certificates shall be consecutively numbered; and if the BDC shall, from time to
time, issue several classes of shares, each class may have its own number
series. A certificate is valid and may be issued whether or not an officer who
signed it is still an officer when it is issued. Each certificate representing
shares which are restricted as to their transferability or voting powers, which
are preferred or limited as to their dividends or as to their allocable portion
of the assets upon liquidation or which are redeemable at the option of the BDC,
shall have a statement of such restriction, limitation, preference or redemption
provision, or a summary thereof, plainly stated on the certificate. In lieu of
such statement or summary, the BDC may set forth upon the face or back of the
certificate a statement that the BDC will furnish to any stockholder, upon
request and without charge, a full statement of such information.
6.2 Transfer Agents, Registrars
and the Like. The Directors shall have authority to employ and
compensate such transfer agents and registrars with respect to the Shares of the
BDC as the Directors shall deem necessary or desirable. In addition,
the Directors shall
have
power to employ and compensate such dividend disbursing agents, warrant agents
and agents for the reinvestment of dividends as they shall deem necessary or
desirable. Any of such agents shall have such power and authority as
is delegated to any of them by the Directors.
6.3 Transfer of
Shares. Stock of the BDC shall be transferable in the manner
prescribed by applicable law and in these By-Laws. Transfers of stock
shall be made on the books of the BDC, and in the case of certificated shares of
stock, only by the person named in the certificate or by such person's attorney
lawfully constituted in writing and upon the surrender of the certificate
therefor, properly endorsed for transfer and payment of all necessary transfer
taxes; or, in the case of uncertificated shares of stock, upon receipt of proper
transfer instructions from the registered holder of the shares or by such
person's attorney lawfully constituted in writing, and upon payment of all
necessary transfer taxes and compliance with appropriate procedures for
transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required
in any case in which the officers of the BDC shall determine to waive such
requirement. With respect to certificated shares of stock, every
certificate exchanged, returned or surrendered to the BDC shall be marked
"Cancelled," with the date of cancellation, by the Secretary of the BDC or the
transfer agent thereof. No transfer of stock shall be valid as
against the BDC for any purpose until it shall have been entered in the stock
records of the BDC by an entry showing from and to whom
transferred.
6.4 Replacement
Certificate. 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 BDC 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 owner’s legal representative to
advertise the same in such manner as he shall require and/or to give bond, with
sufficient surety, to the BDC to indemnify it against any loss or claim which
may arise as a result of the issuance of a new certificate.
6.5 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
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.
6.6 Stock
Ledger. The BDC 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.
6.7 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 Certificate of
Incorporation or these By-laws, the Board of Directors may issue units
consisting of different securities of the BDC. Any security issued in a unit
shall have the same characteristics as any identical securities issued by the
BDC, except that the Board of Directors may provide that for a specified period
securities of the BDC issued in such unit may be transferred on the books of the
BDC only in such unit.
6.8 Registered
Stockholders. The BDC may deem and treat the holder of record
of any Shares as the absolute owner thereof for all purposes and shall not be
required to take any notice of any right or claim of right of any other
person.
ARTICLE
VII
AMENDMENT OF
BY-LAWS
7.1 Amendment and Repeal of
By-Laws. In accordance with Section 10.1 of the Certificate of
Incorporation, the Directors shall have the power to amend or repeal the By-Laws
or adopt new By-Laws at any time. Action by the Directors with
respect to the By-Laws shall be taken by an affirmative vote of a majority of
the Directors. The Directors shall in no event adopt By-Laws which
are in conflict with the Certificate, and any apparent inconsistency shall be
construed in favor of the related provisions in the
Certificate. Stockholders shall have no authority to adopt, amend or
repeal By-Laws except to the extent required by law.
ARTICLE
VIII
NOTICE
8.1 Notices. Whenever
written notice is required by law, the Certificate of Incorporation or these
By-Laws (except as set forth in Sections 1.3 and 2.2 herein or as otherwise
stated therein or herein), to be given to any director, member of a committee or
stockholder, such notice may be given by mail, addressed to such director,
member of a committee or stockholder, at such person's address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Written notice may also be given personally or by telegram,
telex, cable, facsimile, transmission, email or other electronic means to any
address provided to the BDC by the person being notified.
8.2 Waiver of
Notices. Whenever any notice is required by applicable law,
the Certificate of Incorporation or these By-Laws (except as stated therein or
herein), to be given to any director, member of a committee or stockholder, a
waiver thereof in writing, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Attendance of a person at a meeting, present in person or represented
by proxy, shall constitute a waiver of notice of such meeting, except where the
person attends the 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. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of stockholders or any regular or
special meeting of the directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by law, the
Certificate of Incorporation or these By-Laws.
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