SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(A) of the Securities
Exchange Act of 1934 (Amendment No. 1)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
THE BRAZIL FUND, INC.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement,
if other than the Registrant)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identity the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement no.:
(3) Filing Party:
(4) Date Filed:
Explanatory Note: This amendment is being filed to provide stockholders with a
revised Exhibit A: Form of Amended and Restated Articles of Incorporation of
The Brazil Fund, Inc. for the Proxy Statement filed November 14, 2005.
FORM OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE BRAZIL FUND, INC.
First: The undersigned, William D. Regner, whose post office address is 919
Third Avenue, New York, New York 10022, being at least eighteen years of age,
does hereby amend and restate these Articles of Incorporation for a corporation
previously formed under the General Laws of the State of Maryland.
Second: The name of the corporation is THE BRAZIL FUND, INC. (the
"Corporation").
Third: Corporate Purposes.
The purposes for which the Corporation is formed is to act as an investment
company under the federal Investment Company Act of 1940, and generally to
exercise and enjoy all of the powers, rights and privileges granted to, or
conferred upon, corporations by the General Laws of the State of Maryland now or
hereafter in force. The Corporation shall exercise and enjoy all such powers,
rights and privileges to the extent not inconsistent with these Articles of
Incorporation.
Fourth: Address and Resident Agent.
The post office address of the principal office of the Corporation in the State
of Maryland is c/o The Corporation Trust Incorporated, First Maryland Building,
32 South Street, Baltimore, Maryland 21202. The name and address of the resident
agent of the Corporation in the State of Maryland is c/o The Corporation Trust
Incorporated, First Maryland Building, 32 South Street, Baltimore, Maryland
21202.
Fifth: Capital Stock.
(a) Authorized Shares. The total number of shares of stock which the
Corporation shall have the authority to issue is [ ] shares of the
par value of One Cent ($0.01) per share, such shares having an
aggregate par value of $[ ].
(b) Authorization of Stock Issuance. The Board of Directors may
authorize the issuance and sale of capital stock of this Corporation,
including stock of any class or series, from time to time in such
amounts and on such terms and conditions, for purposes and for such
amount or kind of consideration as the Board of Directors shall
determine, subject to any limits required by then applicable law. All
shares shall be issued on a fully paid and non-assessable basis.
(c) Power to Classify. The Board of Directors may classify and
reclassify any unissued shares of capital stock into one or more
additional or other classes or series as may be established from time
to time by setting or changing in any one or more respects the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or terms or conditions of
redemptions of such shares of stock. Pursuant to such classification or
reclassification, the Board of Directors may increase or decrease the
number of authorized shares of stock, or shares of any existing class
or series of stock. Pursuant to such power, the Board of Directors has
designated two classes of shares of capital stock of the Corporation
(d) Series -- General. The relative preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption of each class or
series of the stock of the Corporation shall be as follows, unless
otherwise provided in Sections (e) or (f) of this article or in a
supplement to the Amended and Restated Articles of Incorporation:
(i) Assets Belonging to Class. All consideration received by
the Corporation for the issue or sale of a particular class or
series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits and
proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any fund or
payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to
that class or series for all purposes, and shall be so
recorded on the books of account of the Corporation. Any
assets, income, earnings, profits or proceeds thereof, funds
or other payments which are not readily attributable to a
particular class or series for all purposes, and shall be so
recorded on the books of account of the Corporation. Any
assets, income, earnings, profits or proceeds thereof, funds
or payments which are not readily attributable to a particular
class or series shall be allocated to and among any one or
more series or classes in such manner and on such basis as the
Board of Directors, in its sole discretion, shall deem fair
and equitable, and items so allocated to a particular series
or class shall belong to that series or class. Each such
allocation shall be conclusive and binding upon the
stockholders of all classes and series for all purposes.
(ii) Liabilities Belonging to Class. The assets belonging to
each class or series shall be charged with the liabilities of
the Corporation in respect of that class or series and with
all expenses, costs, charges and reserves attributable to that
class or series and shall be so recorded on the books of
account of the Corporation. Any general liabilities, expenses,
costs,
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charges or reserves of the Corporation which are not readily
identifiable as belonging to any particular class or series
shall be allocated and charges to and among any one or more of
the classes or series shall be allocated and charges to and
among any one or more of the classes or series in such manner
and on such basis as the Board of Directors in its sole
discretion deems fair and equitable, and any items so
allocated to a particular class or series shall be charged to,
and shall be a liability belonging to, that class or series.
Each such allocation shall be conclusive and binding upon the
stockholders of all classes and series for all purposes.
(iii) Income. The Board of Directors shall have full
discretion, to the extent not inconsistent with the Maryland
General Corporation Law and the Investment Company Act of
1940, to determine which items shall be treated as income and
which items shall be treated as capital. Each such
determination shall be conclusive and binding. "Income
belonging to" a class or series includes all income, earnings
and profits derived from assets belonging to that class or
series, less any expenses, costs, charges or reserves
belonging to that class or series, for the relevant time
period.
(iv) Dividends and Distributions. Dividends and distributions
on shares of a particular class or series may be declared and
paid with such frequency, in such form and in such amount as
the Board of Directors may from time to time determine.
Dividends may be declared daily or otherwise pursuant to a
standing resolution or resolutions adopted only once or with
such frequency as the Board of Directors may determine, after
providing for actual and accrued liabilities belonging to that
class or series.
All dividends on shares of a particular class or series shall
be paid only out of the income belonging to that class or
series and capital gains distributions on shares of the class
or series shall be only out of the capital gains belonging to
the class or series. All dividends and distributions on shares
of a particular class or series shall be distributed pro rata
to the shareholders of that class or series held by such
shareholders at the date and time of record established for
the payment of such dividends or distributions, except that in
connection with any dividend or distribution program or
procedure the Board of Directors may determine that no
dividend or distribution shall be payable on shares as to
which the shareholder's purchase order and/or payment have not
been received by the time or times established by the Board of
Directors under such program or procedure.
The Board of Directors shall have the power, in its sole
discretion, to
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distribute in any fiscal year as dividends, including
dividends designated in whole or in part as capital gains
distributions, amounts sufficient, in the opinion of the Board
of Directors, to enable the corporation or the class or series
to qualify as a regulated investment company under the
Internal Revenue Code of 1986, as amended, or any successor or
comparable statute thereto, and regulations promulgated
thereunder, and to reduce or eliminate liability of the
Corporation or the class or series for taxes, including
federal income and excise taxes, but nothing in the foregoing
shall limit the authority of the Board of Directors to make
distributions greater than or less than the amount necessary
to qualify as a regulated investment company or to reduce or
eliminate liability of the Corporation or the class or series
for any such taxes.
Dividends and distributions may be paid in cash, property or
shares, or a combination thereof, as determined by the Board
of Directors or pursuant to any program that the Board of
Directors may have in effect at the time.
(v) Tax Elections. The Board of Directors shall have the
power, in its discretion, to make such elections as to the tax
status of the Corporation or any series or class of the
Corporation as may be permitted or required by the Internal
Revenue code of 1986, as amended, without the vote of
stockholders of the Corporation or any series or class.
(vi) Liquidation. At any time there are no shares outstanding
for a particular class or series, the Board of Directors may
liquidate such class or series in accordance with applicable
law. In the event of the liquidation or dissolution of the
Corporation, or of a class or series thereof when there are
shares outstanding of the Corporation or of such class or
series, as applicable, the stockholders of such, or of each,
class or series, as applicable, shall be entitled to receive,
when and as declared by the Board of Directors, the excess of
the assets of that class or series over the liabilities of
that class or series, determined as provided herein and
including assets and liabilities allocated pursuant to
sections [ ] and [ ] of this Article [ ]. Any such excess
amounts will be distributed to each stockholder of the
applicable class or series in proportion to the number of
outstanding shares of that class or series held by that
stockholder and recorded on the books of the Corporation.
Subject to the requirements of applicable law, dissolution of
a class or series may be accomplished by distribution of
assets to stockholders of that class or series of the
Corporation, by the exchange of shares of that class or series
for shares of another class or series of the Corporation, or
in any other legal manner.
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(vii) Voting Rights. On each matter submitted to a vote of
stockholders, each holder of a share of capital stock of the
Corporation shall be entitled to one vote for each full share,
and a fractional vote for each fractional share of stock
standing in such holder's name on the books of the
Corporation, irrespective of the class or series thereof, and
all shares of all classes and series shall vote together in a
single class, provided that (a) when the Maryland General
Corporation Law or the Investment Company Act of 1940 requires
that a class or series vote separately with respect to a given
matter, the separate voting requirements of the applicable law
shall govern with respect to the affected classes or series
and other classes or series shall govern with respect to the
affected classes or series and other classes or series shall
vote as a single class and (b) unless otherwise required by
those laws, no class or series shall vote on any matter which
does not affect the interest of that class or series.
(viii) Quorum. The presence in person or by proxy of the
holders of a majority of the shares of stock of the
Corporation entitled to vote thereat, without regard to class,
shall constitute a quorum at any meeting of the stockholders,
except with respect to any matter which, under applicable
statutes or regulatory requirements, required 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 one-third
of the shares of stock of each class required to vote as a
class on the matter shall constitute a quorum. If at any
meeting of the stockholders there shall be less than a quorum
present, the stockholders present at such meeting may, without
further notice, adjourn the same from time to time until a
quorum shall be present.
(e) Class A Common Stock.
(i) [ ] shares of the authorized capital stock of the
Corporation are designated as "Class A Common Stock."
(ii) The [ ] shares of capital stock of the Corporation
designated as the "Class A" shares shall be redeemable at a
price equal to ninety-eight percent (98%) of net asset value
per share if such shares have been issued and outstanding on
the books of the Corporation for less than thirty (30) days
subject to such exceptions as the Board of Directors may fix
by resolution. The foregoing condition of redemption may be
revised or eliminated by the Board of Directors from time to
time, without amending or supplementing the Amended and
Restated Articles of Incorporation, provided the interests of
any outstanding shareholders of the Class A shares are not
adversely affected.
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(iii) The [ ] shares of capital stock of the Corporation
designated as the "Class A" shares shall be subject to certain
distribution fee payments or service fee payments associated
with a plan of distribution adopted by the Corporation
pursuant to Rule 12b-1 of the Investment Company Act of 1940.
(f) Class S Common Stock.
(i) [ ] shares of the authorized capital stock
of the Corporation are designated as "Class S Common Stock."
(ii) The [ ] shares of capital stock of the Corporation
designated as the "Class S" shares shall be redeemable at a
price equal to ninety-eight percent (98%) of net asset value
per share if such shares have (i) been issued and outstanding
on the books of the Corporation for less than thirty (30) days
or (ii) been obtained either by purchase or by exchange within
six months from [ ], subject to such exceptions as the
Board of Directors may fix by resolution. The foregoing
condition of redemption may be revised or eliminated by the
Board of Directors from time to time, without amending or
supplementing the Amended and Restated Articles of
Incorporation, provided the interests of any outstanding
shareholders of the Class S shares are not adversely affected.
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(g) Notwithstanding any provision of the Maryland General Corporation
Law requiring for any purpose a proportion greater than a majority of
the votes of all classes or series, the affirmative vote of the holders
of a majority of the total number of shares of the Corporation, as
applicable, outstanding and entitled to vote under such circumstances
pursuant to these Articles of Amendment and Restatement and the By-Laws
of the Corporation shall be effective for such purpose, except to the
extent otherwise required by the Investment Company Act of 1940 and
rules thereunder.
(h) No stockholder of the Corporation shall be entitled as of right to
subscribe for, purchase or otherwise acquire any shares of any classes
or series, or any other securities of the Corporation, whether new or
hereafter authorized or created, may be issued, or may be reissued or
transferred if the same have been required, and sold to such persons,
firms, corporations and associations, and for such lawful consideration
and on such terms as the Board of Directors in its discretion may
determine, without first offering the same, or any thereof, to any said
stockholder.
Sixth: Transfers of Capital Stock.
(a) Issue of Shares.
(i) The Board of Directors may from time to time issue,
reissue, sell or cause to be reissued and sold any of the
Corporation's authorized shares of capital stock, including
additional shares hereafter authorized and any shares redeemed
or repurchased by the Corporation.
(ii) Subject to the requirements of the Maryland General
Corporation Law, the Board of Directors may authorize the
issuance of some or all of the shares of any or all classes or
series without certificates and may establish such conditions
as it may determine in connection with the issuance of
certificates.
(iii) For any corporate purpose, such as in connection with
the acquisition of all or substantially all the assets or
stock of another investment company or investment trust, the
Board of Directors may issue or cause to be issued shares of
capital stock of the Corporation and accept in payment
thereof, in lieu of cash, assets or other property, either
with or without adjustment for contingent costs or
liabilities, provided such assets or other property are of the
character in which the Corporation is permitted to invest.
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(b) Redemption of Shares.
(i) The Board of Directors shall authorize the Corporation to
the extent it has shares or other property legally available
and subject to such reasonable conditions as the board of
Directors may determine, to permit each holder of shares of
capital stock of the Corporation to redeem all of any part of
the shares standing in the name of such holder on the books of
the Corporation, at the applicable redemption price of such
shares, determined in accordance with procedures established
by the Board of Directors of the Corporation from time to time
in accordance with applicable law.
(ii) Without limiting the generality of the foregoing, the
Board of Directors may authorize the Corporation, at its
option and to the extent permitted by and in accordance with
the conditions of applicable law, to redeem stock owned by any
stockholder under circumstances deemed appropriate by the
Board of Directors in its sole discretion from time to time,
such redemption to be effected at such a price, at such time
and subject to such conditions as may be required or permitted
by applicable law.
(iii) Payment for redeemed stock shall be made in cash unless,
in the opinion of the Board of Directors, which shall be
conclusive, conditions exist which make it advisable for the
Corporation to make payment wholly or partially in securities
or other property or assets. Payment made wholly or partially
in securities or other property or assets may be delayed to
such reasonable extent, not inconsistent with applicable law,
as is reasonably necessary under the circumstances. No
stockholder shall have the right, except as determined by the
Board of Directors, to have his shares redeemed in such
securities, property or other assets.
(iv) All rights of a stockholder with respect to a share
redeemed, including the right to receive dividends and
distributions with respect to such share, shall cease at the
time at which the redemption price is to be paid, except the
right of such stockholder to receive payment of such shares as
provided herein.
(v) Notwithstanding any other provisions of this Article, the
Board of Directors may suspend the right of stockholder of any
or all classes or series of shares to require the Corporation
to redeem shares held by them for such periods and to the
extent permitted by, or in accordance with, the Investment
Company Act of 1940, and the rules, regulations and orders
issued thereunder. The Board of Directors may, in the absence
of a ruling by a responsible regulatory official, terminate
such suspension at such
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time as the Board of Directors, in its discretion, shall deem
reasonable, such determination to be conclusive.
(vi) Shares of any class or series which have been redeemed
shall constitute authorized but unissued shares subject to
classification and reclassification as provided in these
Amended and Restated Articles of Incorporation.
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(c) Repurchase of Shares. The Board may by resolution from time to time
authorize the Corporation to purchase or otherwise acquire, directly or
through an agent, shares of any class or series of its outstanding
stock upon such terms and conditions and for such consideration as
permitted by applicable law and determined to be reasonable by the
Board of Directors and to take all other steps deemed necessary in
connection therewith. Shares so purchased or acquired shall have the
status of authorized but unissued shares.
(d) Conversion and Exchange. Subject to compliance with the
requirements of the Investment Company Act of 1940, the Board of
Directors shall have the authority to provide that holders of shares of
any class or series shall have the right to convert or exchange said
shares or one or more other classes or series of shares in accordance
with such requirements and procedures as may be established by the
Board of Directors.
Seventh: Board of Directors.
The number of directors of the Corporation shall be five, or such other number
as may from time to time be fixed in the manner provided in the By-laws of the
Corporation, provided that the number of directors shall not be less than the
minimum number required under the Maryland General Corporation Law. The By-laws
may authorize a majority of the directors to increase or decrease the number of
directors within the limits set by these Articles and to fill vacancies created
by an increase in the number of directors. Except as provided in the By-laws,
the election of directors may be conducted in any way approved at the meeting
(whether of stockholders or directors) at which the election is held, provided
that such election shall be by ballot whenever requested by any person entitled
to vote. The names of the directors who are currently in office and who shall
act as such until their successors are duly elected and qualify are as follows:
[Kesop Yun]; [Donna M. Hrinak]; [Ronaldo A. da Frota Nogueira]; Robert
Callander; Kenneth C. Froewiss.
Eighth: Management of the Affairs of the Corporation.
(a) All corporate powers and authority of the Corporation (except as at
the time otherwise provided by statute, by these Articles of
Incorporation or by the By-Laws) shall be vested in and exercised by
the Board of Directors.
(b) The Board of Directors shall have the power to make, alter or
repeal the By-Laws of the Corporation except to the extent that the
By-Laws otherwise provide.
(c) The Board of Directors shall have the power from time to time to
authorize payment of compensation to the directors for services to the
Corporation, as provided in the By-Laws, including fees for attendance
at meetings of the Board of Directors and of committees.
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(d) The Board of Directors shall have the power from time to time to
determine whether and to what extent, and at what times and places and
under what conditions and regulations, the accounts and books of the
Corporation (other than the stock ledger) or any of them shall be open
to the inspection of stockholders; and no stockholder shall have any
right to inspect any account, book or document of the Corporation
except at such time as is conferred by statute or the By-Laws.
(e) The Board of Directors, subject to the requirements of applicable
law, shall have the power to establish, in its absolute discretion, the
basis or method, timing and frequency for determining the value of
assets belonging to each class or series of shares and for determining
the net asset value of each share or each class or series for purposes
of sales, redemptions, repurchases or otherwise.
(f) The Board of Directors shall have the power, if the By-Laws so
provide, to hold their meetings and to have one or more offices, within
or without the State of Maryland, and to keep the books of the
Corporation (except as otherwise required by statute) outside the State
of Maryland, at such places as from time to time may be designated by
the By-Laws or the Board of Directors.
(g) To the fullest extent permitted by Maryland law, as amended or
interpreted, no director or officer of the Corporation shall be liable
to the Corporation or its stockholders for money damages. This
limitation on liability shall apply to any liability arising out of any
event occurring when a person serves as director or officer of the
Corporation, whether or not such person is a director or officer at the
time of any proceeding in which liability is asserted. The Corporation
shall indemnify and advance expenses to its currently acting and former
directors and to its currently acting and former officers to the
fullest extent permitted by Maryland law, as amended or interpreted. No
provision of these Articles of Incorporation shall be effective to (i)
require a waiver of compliance with any provision of the Securities Act
of 1933 or of the Investment Company Act of 1940 or (ii) protect or
purport to protect any director or officer of the Corporation against
any liability to the Corporation or its security holders to which he
would otherwise be subject by reason of willful malfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his office. No amendment of these Articles of Incorporation
or repeal of any of its provisions shall limit or eliminate the
benefits provided to directors and officers under this paragraph [ ]
with respect to any act or omission which occurred prior to such
amendment or repeal.
Ninth: Shareholders.
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(a) Meetings of Shareholders. Unless an election of directors is
required by the Investment Company Act of 1940, the Corporation shall
not be required to hold an annual meeting of shareholders in any year.
Tenth: Reservation of Right to Amend.
The Corporation reserves the right to amend or repeal any provision contained in
these Amended and Restated Articles of Incorporation from time to time and at
any time in the manner now or hereafter prescribed by the laws of the State of
Maryland and all rights herein conferred upon stockholders are granted subject
to such reservation.
IN WITNESS WHEREOF, I have signed these Amended and Restated
Articles of Incorporation and acknowledge the same to be my act on the [ ]nd day
of [ ], 2006.
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William D. Regner
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