UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT
TO RULE 13d-2(a)
(Amendment No. 28)*
First Financial Fund, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
320228109
(CUSIP Number)
Stephen C. Miller, Esq.
Krassa & Miller, LLC
1680 38th Street, Suite 800
Boulder, Colorado 80301
(303) 444-5483
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 18, 2002
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. 0
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See ss.240.13d-7 for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Ernest Horejsi Trust No. 1B
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
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Number of 7. Sole Voting Power 1,795,100
Shares Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 1,795,100
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,795,100
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 7.60%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Lola Brown Trust No. 1B
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
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Number of 7. Sole Voting Power 2,568,200
Shares Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 2,568,200
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,568,200
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 10.87%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Mildred B. Horejsi Trust
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization New York
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Number of 7. Sole Voting Power 1,922,400
Shares Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 1,922,400
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,922,400
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 8.14%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Stewart R. Horejsi Trust No. 2
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2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
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Number of 7. Sole Voting Power 1,697,900
Shares,Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 1,697,900
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,697,900
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 7.19%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Susan L. Ciciora Trust
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2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
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Number of 7. Sole Voting Power 1,359,800
Shares Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 1,359,800
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,359,800
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 5.76%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
John S. Horejsi Trust
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2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
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Number of 7. Sole Voting Power 100
Shares Bene-
ficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 100
Person With
10. Shared Dispositive Power
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
100
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 0.0004%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Badlands Trust Company
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2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) WC OO
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization South Dakota
Number of 7. Sole Voting Power
Shares Bene-
ficially 8. Shared Voting Power 1,359,900
Owned by Each
Reporting 9. Sole Dispositive Power
Person With
10. Shared Dispositive Power 1,359,900
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,359,900
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13. Percent of Class Represented by Amount in Row (11) 5.76%
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14. Type of Reporting Person (See Instructions) OO
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CUSIP No. 320228 10 9
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Stewart R. Horejsi
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(A)
(B)
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3. SEC Use Only
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4. Source of Funds (See Instructions) Not applicable
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization United States
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Number of 7. Sole Voting Power 0
Shares Bene-
ficially 8. Shared Voting Power 0
Owned by Each
Reporting 9. Sole Dispositive Power 0
Person With
10. Shared Dispositive Power 0
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
0
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) X
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13. Percent of Class Represented by Amount in Row (11) 0%
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14. Type of Reporting Person (See Instructions) IN
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Amendment No. 28 to Statement on Schedule 13D
This amended statement on Schedule 13D relates to the Common Stock,
$.001 par value per share (the "Shares"), of First Financial Fund, Inc.,
a Maryland corporation (the "Company"). Items 4 and 7 of this statement,
previously filed by the Ernest Horejsi Trust No. 1B (the "Trust"), the
Lola Brown Trust No. 1B (the "Brown Trust"), the Mildred B. Horejsi Trust
(the "Mildred Trust"), the Stewart R. Horejsi Trust No. 2 (the "Stewart
Trust"), the John S. Horejsi Trust (the "John Trust"), and the Susan L.
Ciciora Trust (the "Susan Trust") as the direct beneficial owner of
Shares, and Badlands Trust Company ("Badlands") and Stewart R. Horejsi,
by virtue of the relationships described previously in this statement,
are hereby amended as set forth below.
Item 4. Purpose of Transaction.
No change except for the addition of the following:
As previously reported in this statement on Schedule 13D, at a hearing
held on September 20, 2002, the United States District Court for the
District of Maryland (the "District Court") stayed the effectiveness of
its September 19, 2002 ruling until October 4, 2002 in connection with
the lawsuit filed against the Company regarding the Company's bylaw
requiring a 50% vote of all outstanding shares in order to elect
directors (the "By-Law Lawsuit"). The District Court further reinstated
the injunction enjoining the Company's Board from holding any meetings
during the pendency of the stay. Judge Motz indicated that he was
granting the stay so as to allow at least one judge of the United States
Court of Appeals for the Fourth Circuit (the "Court of Appeals") time to
review the issue.
On October 4, 2002, the Court of Appeals granted the Company's motion to
extend the stay pending appeal and ordered an expedited briefing
schedule. Oral arguments regarding the By-Law Lawsuit will be heard at
the Court of Appeals' December term.
On Friday, October 18, 2002, the District Court held a hearing on
Badlands' Emergency Motion to Restore Injunction Pending Appeal (the
"Motion"). The Motion along with the Memorandum in Support of
Plaintiff's Emergency Motion to Restore Injunction Pending Appeal
(without exhibits filed with the District Court) are attached as
Exhibit 18 and incorporated in this statement by reference. The Motion
was filed in response to news that management of the Company had
scheduled a meeting of the board of directors, including the carry-over
directors, Robert E. LaBlanc and Eugene C. Dorsey, for Monday, October
21, 2002. The District Court granted Badlands' Motion and ordered that
the Company not permit Messrs. La Blanc and Dorsey to sit or act as
directors in any meeting of its board of directors until further order of
the Court. The District Court also ordered that the remaining directors
may meet as necessary and appropriate to consider and address matters
arising in the ordinary course of the Company's business. However, the
remaining directors may not act on matters that do not arise in the
ordinary course of the Company's business, including extraordinary
transactions, a material departure from prior dividend policy, or
transactions affecting corporate governance or the jurisdiction or
ability of the courts to afford complete relief in the litigation
commenced by Badlands. Finally, the District Court ordered that a
written agenda for any board meeting must be provided to the remaining
directors at least forty-eight hours in advance of a meeting and that the
remaining directors essentially be limited to acting on matters on the
written agenda or those matters added only by unanimous consent at the
meeting. A copy of the District Court's "Injunction Preserving Status
Quo Pending Appeal" is attached as Exhibit 19 and incorporated in this
statement by reference.
Item 7. Material to be Filed as Exhibits.
Exhibit 18. Plaintiff's Emergency Motion to Restore
Injunction Pending Appeal and Memorandum in Support of Plaintiff's
Emergency Motion to Restore Injunction Pending Appeal (without
exhibits filed with the District Court).
Exhibit 19. Injunction Preserving Status Quo Pending Appeal
dated October 18, 2002.
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
Date: October 23, 2002
/s/ Stewart R. Horejsi
Stewart R. Horejsi
/s/ Stephen C. Miller
Stephen C. Miller, as Vice President of
Badlands Trust Company, trustee of the
Ernest Horejsi Trust No. 1B, the Lola
Brown Trust No. 1B, the Mildred B.
Horejsi Trust, the Stewart R. Horejsi
Trust No. 2, the Susan L. Ciciora
Trust, and the John S. Horejsi Trust.
EXHIBIT 18
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Northern Division
BADLANDS TRUST COMPANY,
A SOUTH DAKOTA CORPORATION,
AS TRUSTEE FOR
LOLA BROWN TRUST NO. 1B
Plaintiff,
V.
FIRST FINANCIAL FUND, INC.
A MARYLAND CORPORATION,
Defendant.
Civil Action No. JFM 02-CV-2423
PLAINTIFF'S EMERGENCY MOTION
TO RESTORE INJUNCTION PENDING APPEAL
Pursuant to Rule 62(c) of the Federal Rules of Civil Procedure
and Rule 8(a)( 1)(C) of the Federal Rules of Appellate Procedure,
Plaintiff Badlands Trust Company, ("Badlands"), moves
to preserve the status quo by restoring the injunction initially
entered by this court on August 28, 2002, which the Court extended
on September 10,2002 and again on September 20,2002,
prohibiting Defendant First Financial Fund, Inc ("First Financial")
from holding a meeting of its board of directors.
On October 4,2002 the Fourth Circuit - in a one sentence order -
granted defendant-appellant First Financial a stay pending appeal,
but did not address the issue addressed by this Court's injunction
- whether the Board of First Financial might meet during the pendency
of the appeal. First Financial has now made and announced plans to
hold a board of directors meeting on October 21,2002. Moreover,
FF intends to have Robert E. LaBlanc and Eugene C. Dorsey
("LaBlancDorsey") - the two defeated incumbent directors - sit
and participate in the meeting even though this Court has declared,
in a final judgment, that LaBlanc and Dorsey cannot sit as members
of the FF Board.
Badlands respectfully requests that the Court reinstate its prior
injunction against meetings of the Board of Directors of First
Financial until the Fourth Circuit Court of Appeals, which has
established an expedited briefing and oral argument schedule,
with argument set for December 6,2002, issues a ruling in the
case in order to preserve the status quo.
The attached memorandum of law sets forth the facts and points of
law that support this motion.
Respectfully submitted,
/s/ James H. Hulme
James H. Hulme, Bar No. 00875
Donald B. Mitchell, Jr., Bar No. 22944
J. Marcus Meeks, Bar No. 15191
ARENT FOX KINTNER PLOTKIN & KAHN
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
Telephone: (202) 857-6000
Facsimile: (202) 857-6395
Attorneys for Plaintiff Badlands Trust
Company,
as trustee for the Lola Brown Trust No. 1B
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of October, 2002, I caused
copies of the attached Plaintiffs Emergency Motion to Restore
Injunction Pending Appeal and the memorandum in support thereof
to be served on the following, via electronic mail and hand
delivery:
Jeffrey B. Maletta, Esq.
Kirkpatrick & Lockhart LLP
1800 Massachusetts Avenue, N.W., Suite 200
Washington, D.C. 20036-1221
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Northern Division
BADLANDS TRUST COMPANY,
A SOUTH DAKOTA CORPORATION,
AS TRUSTEE FOR
LOLA BROWN TRUST No. lB,
Plaintiff,
V.
FIRST FINANCIAL FUND, INC.
A MARYLAND CORPORATION,
Defendant.
Civil Action No. JFM 02-CV-2423
MEMORANDUM IN SUPPORT OF PLAINTIFF'S EMERGENCY MOTION
TO RESTORE INJUNCTION PENDING APPEAL
On three separate occasions during the litigation of this case,
the Court granted Plaintiff Badlands Trust Company ("Badlands")
injunctive relief to preserve the status quo in connection
with its rulings on the merits of the underlying matter. On August
28,2002, September 10, 2002 and September 20,2002, the Court
entered orders prohibiting the Board of Directors of
Defendant First Financial Fund, Inc. ("First Financial") from
holding a meeting until the legality of First Financial's director
election bylaw was resolved.
On October 4,2002, this Court's stay pending appeal - which was
joined with an extension of the injunction against a meeting of
the Board - expired and was replaced with an order for an expedited
appeal and a stay pending that expedited appeal. (Exhibits A & B).
The Circuit Court's one sentence order - an order clearly directed
at maintenance of the status quo pending the result of the appeal
- did not address, however, whether the Board might meet in the
meantime. Footnote 1
Soon thereafter, First Financial made preparations to hold a meeting
of its Board ofDirectors. Yesterday, First Financial's incumbent
management, through its Secretary, Footnote 2 announced that a meeting
is now scheduled to take place next Monday, October 21,2002,
at 12:30 PM. See Declaration of Steve C. Miller at Paragraph 3.
(Exhibit C). First Financial's management has also indicated that it
will meet on November 19, 2002. See id.
Any stay pending appeal is an effort to maintain the status quo.
That works in both directions. Because any board meeting will
harm Badlands and the shareholders of First Financial, First
Financial should be enjoined from holding any board meeting
until the appeal pending in the Fourth Circuit Court of Appeals
is resolved.
A. Jurisdiction in the Court
Both Federal Rule of Civil Procedure 62(c) and Federal Rule of
Appellate Procedure 8(a)( 1)(C) authorize this Court to restore
an injunction pending appeal. See Duke v. Uniroyal, Inc., 777 F.
Supp. 428,430-31 (E.D.N.C. 1991). Even though the case is pending
in the Court of Appeals, Rule 62(c) gives this Court authority to
reinstate the injunction that expired on October 4,2002 in order
to preserve the status quo while this case is pending on appeal.
See, e.g., National Resources Defense Council v. Southwest Marine,
Inc., 242 F.3d 1163, 1 166 (9th Cir. 2001). Indeed, under FRAP 8,
Badlands is directed to apply to this Court, and not to the
Fourth Circuit, to apply for restoration of the injunction pending
appeal. See Fed. R. App. P. S(a)( 1)(C) ("A party must ordinarily
move first in the district court for the following relief. . .
an order suspending, modifying, restoring, or granting an injunction
while an appeal is pending.") (emphasis added); see also Koger v.
United States, 755 F.2d 1094, 1098 (4th Cir. 1098).
B. The Injunction Against A Board Meeting Should Be Extended
Reinstatement of the injunction is necessary because, as this
Court recognized on several occasions: Badlands would suffer
irreparable harm if First Financial holds a board meeting that
excludes the two directors duly elected by the shareholders of First
Financial or if the Board holds a meeting and takes other action that
will bind First Financial subsequent to any affirmance of this Court's
Order. Indeed, the board meeting noticed for October 21,2002 does
not include the two new Directors nominated by Badlands, whom this
Court has ruled were duly elected by the shareholders of First
Financial. Instead, First Financial intends to seat the defeated
incumbents - Robert E. LaBlanc and Eugene C. Dorsey, the lame-duck
directors whothis Court has declared, in a final judgment, cannot sit
as members of the First Financial Board - at the meeting.
Moreover, any action of this Board of Directors will become void
if the Fourth Circuit affirms this Court's holding in the case.
If the Fourth Circuit ultimately affirms this Court's September 19,
2002 Opinion and Order, actions taken by the current board during
the pending appeal would become an action by an illegal board, and
thus void:
"[Plroceedings by directors at a meeting which was illegal . . . are
absolutely void. . . .''Footnote 4 Fletcher Cyc Corp Section 428
(1997). The status quo in this case, which this Court continuously
preserved while the case was litigated in this Court, is that no
board meeting should take place until resolution of the lawsuit,
including the present appeal.
There is no reason the board of directors of First Financial Fund
should meet prior to December 6, 2002 - the date oral arguments will
be presented to the Fourth Circuit in this case. See Miller Decl.
at Paragraph 4. Indeed, in Larkin v. Baltimore Bancorp, 948 F.2d
1281 (4th Cir. 1991), the Fourth Circuit issued its Order affirming
this Court's decision two days after oral argument. A similarly quick
resolution by the Court of Appeals is likely in this case - the Court
deliberately expedited the hearing of the appeal - providing the board
of directors ample time to take any actions that may be necessary
before the end of the calendar year. Accordingly, the First Financial
Board of Directors should not be permitted to hold a meeting until the
Fourth Circuit has issued a final ruling in the case.
Respectfully submitted,
/s/ James H. Hulme
James H. Hulme, Bar No. 00875
Donald B. Mitchell, Jr., Bar No. 22944
J. Marcus Meeks, Bar No. 15191
ARENT FOX KINTNER PLOTKIN & KAHN
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
Telephone: (202) 857-6000
Facsimile: (202) 857-6395
Attorneys for Plaintiff Badlands Trust Company,
as trustee for the Lola Brown Trust No. 1B
Footnote 1: The instant issue -whether this Court's injunction barring
a meeting of the Board pendente lite should be continued - was not
briefed by the parties, was not before the Court of Appeals, and was
not addressed by the Court of Appeals in its one-sentence Order of
October 4, 2002.
Footnote 2: The Secretary of First Financial Fund is Arthur Brown of
the law firm of Kirkpatrick & Lockhart.
Footnote 3: See Aug. 28, 2002 TRO Hearing Trans. at 29; Sept. 10,
2002 Preliminary Injunction Hearing Trans. at 70; Sept. 20, 2002
Motion for Stay Pending Appeal Hearing Trans. at 11.
Footnote 4: The actions would be void regardless of whether Messrs.
LaBlanc and Dorsey participated in the meeting. The proper
constitution of the First Financial Board of Directors cannot be
determined until final resolution of the lawsuit.
EXHIBIT 19
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Northern Division
------------------------------------
BADLANDS TRUST COMPANY,
a South Dakota corporation,
as Trustee for
LOLA BROWN TRUST No. 1B,
Plantiff,
v.
FIRST FINANCIAL FUND, INC.,
a Maryland corporation,
Defendant.
------------------------------------
Civil Action No. JFM 02-CV-2423
INJUNCTION PRESERVING STATUS QUO PENDING APPEAL
Upon consideration of Plaintiff Badlands Trust Company's Emergency
Motion to Restore Injunction Pending Appeal ("Motion"), the Opposition
filed by First Financial Fund, Inc. ("First Financial"), the arguments
presented by counsel at a telephonic hearing held 11:30 AM on Friday,
October 18, 2002, and for the reasons stated by the Court at the
telephonic hearing, it is this 18th day of October, 2002,
ORDERED, that First Financial shall not permit Robert E. LaBlanc and
Eugene C. Dorsey to sit or to act as directors in any meeting of its
board of directors until further Order of this Court;
ORDERED, that Thomas T. Mooney, Clay T. Whitehead, and Richard I.
Barr - the remaining members of the First Financial board of directors
("Remaining Directors") - may meet as necessary and appropriate to
consider and address matters arising in the ordinary course of the Fund's
business, including, but not limited to, matters identified in paragraphs
three through ten of the Declaration of Arthur J. Brown, which was filed
with the Court on October 18, 2002;
ORDERED, that the Remaining Directors shall not act on matters that
do not arise in the ordinary course of the Fund's business, including
extraordinary transactions, a material departure from prior dividend
policy, or transactions affecting corporate governance or the
jurisdiction or ability of this Court or the United States Court of
Appeals for the Fourth Circuit to effect full relief in this case; and it
is
FURTHER ORDERED, that the written proposed agenda of any board
meeting permitted by this Order must be delivered to the Remaining
Directors at least forty-eight hours prior to any meeting and the
Remaining Directors shall be limited to considering and voting upon only
those matters included in the written agenda, and matters added to the
agenda at the meeting by unanimous consent of the Remaining Directors.
/s/ J. Frederick Motz
J. Frederick Motz
United States District Judge