Exhibit 1(f)
MASTER INSTITUTIONAL MONEY MARKET LLC
LIMITED LIABILITY COMPANY AGREEMENT
Dated: June 15, 2007
TABLE OF CONTENTS
Page
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ARTICLE I NAME AND DEFINITIONS 1
Section 1.1. Name. 1
Section 1.2. Definitions. 2
ARTICLE II DIRECTORS 4
Section 2.1. Number of Directors and Qualification. 4
Section 2.2. Term and Election. 4
Section 2.3. Resignation, Retirement and Removal. 4
Section 2.4. Vacancies. 4
Section 2.5. Meetings. 5
Section 2.6. Officers; Chairman. 5
Section 2.7. By-Laws. 6
ARTICLE III POWERS OF DIRECTORS 6
Section 3.1. General. 6
Section 3.2. Activities and Investments. 6
Section 3.3. Legal Title. 7
Section 3.4. Sale of Interests; Reclassification. 8
Section 3.5. Borrowing Money; Pledging Company
Assets; Lending Property. 8
Section 3.6. Delegation; Committees. 8
Section 3.7. Collection and Payment. 8
Section 3.8. Expenses. 8
Section 3.9. Common Items. 8
Section 3.10. Litigation. 9
Section 3.11. Tax Matters. 9
Section 3.12. Miscellaneous Powers. 9
Section 3.13. Manner of Acting. 10
ARTICLE IV MANAGEMENT, ADMINISTRATIVE SERVICES AND
PLACEMENT AGENT ARRANGEMENTS; CUSTODIAN 10
Section 4.1. Management and Other Arrangements. 10
Section 4.2. Parties to Contract. 10
Section 4.3. Custodian. 10
ARTICLE V INTERESTS IN THE COMPANY 11
Section 5.1. Interests. 11
Section 5.2. Classes of Interests. 11
Section 5.3. Rights of Holders. 11
Section 5.4. Purchase of or Increase in Interests. 12
Section 5.5. Register of Interests. 12
Section 5.6. Non-Transferability. 12
Section 5.7. Notices. 12
Section 5.8. Limitation on Number of Holders. 12
Section 5.9. No Liability of Holders. 12
ARTICLE VI DECREASES AND WITHDRAWALS 13
Section 6.1. Decreases and Withdrawals. 13
ARTICLE VII DETERMINATION OF BOOK CAPITAL ACCOUNT
BALANCES, NET INCOME AND DISTRIBUTIONS 13
Section 7.1. Book Capital Account Balances. 13
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Section 7.2. Allocations and Distributions to Holders. 13
Section 7.3. Power to Modify Foregoing Procedures. 14
ARTICLE VIII LIABILITY FOR COMPANY OBLIGATIONS 14
Section 8.1. No Personal Liability of Directors, etc. 14
Section 8.2. Indemnification. 14
Section 8.3. No Protection Against Certain
1940 Act Liabilities. 15
Section 8.4. No Bond Required of Directors. 15
Section 8.5. No Duty of Investigation; Notice
in Company Instruments, etc. 16
Section 8.6. Insurance. 16
Section 8.7. Reliance on Experts, etc. 16
Section 8.8. Accounting. 16
ARTICLE IX HOLDERS 16
Section 9.1. Meetings of Holders. 16
Section 9.2. Notice of Meetings. 17
Section 9.3. Record Date for Meetings. 17
Section 9.4. Proxies, etc. 17
Section 9.5. Reports. 18
Section 9.6. Inspection of Records. 18
Section 9.7. Holder Action by Written Consent. 18
ARTICLE X DURATION; DISSOLUTION OF THE COMPANY;
AMENDMENT; MERGERS; ETC. 18
Section 10.1. Duration. 18
Section 10.2. Dissolution of Company. 18
Section 10.3. Actions Upon Dissolution. 18
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Section 10.4. Amendment Procedure. 19
Section 10.5. Reorganization and Master/Feeder. 19
ARTICLE XI MISCELLANEOUS 21
Section 11.1. Certificate of Formation. 21
Section 11.2. Governing Law. 21
Section 11.3. Reliance by Third Parties. 21
Section 11.4. Provisions in Conflict with Law
or Regulations. 21
Section 11.5. Limited Liability Company Only. 22
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LIMITED LIABILITY COMPANY AGREEMENT
OF
MASTER INSTITUTIONAL MONEY MARKET LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of Master
Institutional Money Market LLC is made this ____ day of
_____________, 2007 and is being adopted in connection with the conversion of
Master Institutional Money Market Trust, a Delaware statutory trust (the
"Trust"), to a Delaware limited liability company pursuant to Section 3821 of
the Statutory Trust Act and Section 18-214 of the Act.
W I T N E S S E T H:
WHEREAS, the Trust was formed upon the filing of a Certificate of
Trust with the State Office on October 12, 2001;
WHEREAS, the Trustees of the Trust (the "Trustees") approved the
conversion of the Trust to a Delaware limited liability company in accordance
with Section 3821 of the Statutory Trust Act and Section 18-214 of the Act (the
"Conversion");
WHEREAS, in accordance with Section 18-214 of the Act, the Trustees
approved (i) this Agreement and the By-Laws, (ii) the filing of the Certificate
of Conversion and (iii) the filing of the Certificate of Formation;
NOW, THEREFORE, pursuant to and in accordance with Sections
18-101(7), 18-214 and 18-301(c) of the Act, this Agreement shall constitute the
limited liability company agreement of the Company, each Person who was a holder
of an interest in the Trust on the Effective Date, automatically and with no
further action, will become on the Effective Date, a Holder of the Company
holding an Interest equivalent to the interest held by such Person in the Trust
on the Effective Date and each such Person shall be subject to, and bound by,
this Agreement.
ARTICLE I
NAME AND DEFINITIONS
Name. The name of the limited liability company established hereby
is "Master Institutional Money Market LLC," and, insofar as may be practicable,
the Company shall conduct its activities, execute all documents and xxx or be
sued under that name, which name (and the word "Company" wherever herein used)
shall refer to the Company as a separate legal entity, and shall not refer to
the Directors, officers, agents, employees or Holders. If the Directors
determine that the Company's use of such name is not advisable, the Directors
may adopt such other name for the Company as they deem proper and the Company
may hold its property and conduct its activities under such other name. Any name
change shall become effective upon the execution by a majority of the then
Directors of an instrument setting forth the new name and the filing of a
Certificate of Amendment under the Act. Any such instrument shall have the
status of an amendment to this Agreement.
Definitions. Wherever they are used herein, the following terms have
the respective meanings assigned to them below:
(a) "Act" means the Delaware Limited Liability Company Act, 6 Del.
C. xx.xx. 18-101 et seq., as amended from time to time.
(b) "Administrator" means any party furnishing services to the
Company pursuant to any administrative services contract described in Section
4.1.
(c) "Affiliated Person" has the meaning assigned to it in Section
2(a)(3) of the 1940 Act.
(d) "Agreement" means this Limited Liability Company Agreement of
the Company, as amended, supplemented or restated from time to time.
(e) "Book Capital Account" means, for any Holder at any time, the
Book Capital Account of the Holder at such time with respect to such Holder's
interest in any class, determined in accordance with generally accepted
accounting principles and the provisions of the 1940 Act.
(f) "By-Laws" means the By-Laws referred to in Section 2.7 hereof,
as amended and in effect from time to time. The By-Laws are hereby incorporated
by reference into this Agreement.
(g) "Certificate of Conversion" means the certificate of conversion
filed in the State Office in accordance with Section 18-214(b) of the Act in
connection with the Conversion.
(h) "Certificate of Formation" means the certificate of formation of
the Company, as amended or restated from time to time, filed in the State Office
in accordance with the Act.
(i) "Code" means the Internal Revenue Code of 1986 and the rules and
regulations thereunder, each as amended from time to time.
(j) "Commission" means the Securities and Exchange Commission.
(k) "Company" means Master Institutional Money Market LLC, a
Delaware limited liability company formed under the Act in connection with the
Conversion.
(l) "Company Property" means any and all assets, real or personal,
tangible or intangible, which are owned or held by the Company.
(m) "Custodian" means the party, other than the Company, to the
agreement described in Section 4.3 hereof.
(n) "Directors" means the Person or Persons who may from time to
time be duly elected or appointed, qualified and serving as Directors in
accordance with the provisions hereof, and reference herein to a Director or the
Directors shall refer to such Person or Persons in
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his, her or their capacities as director or directors hereunder. Unless
otherwise required by the context or specifically provided, any reference herein
to the Directors shall refer to the Director at any time that there is only one
Director of the Company. Each Director shall be a "manager" as such term is
defined in Section 18-101(10) of the Act.
(o) "Effective Date" means the date on which the Conversion became
effective under Section 18-214(d) of the Act.
(p) "Fundamental Policies" means the investment policies and
restrictions of the Company that are set forth and designated as fundamental
policies in the Registration Statement.
(q) "Holder" means as of any particular time any Institutional
Investor that is a holder of record of Interests in any class at such time. Each
Holder shall be a "member" of the Company as such term is defined in Section
18-101(11) of the Act.
(r) "Institutional Investor(s)" means any registered investment
company (including a unit investment trust), insurance company separate account,
common or commingled trust fund, group trust or similar organization or entity
that is an "accredited investor" within the meaning of Regulation D under the
Securities Act of 1933, as amended, and shall not include any individual, S
corporation, partnership, or grantor trust beneficially owned by any individual,
S corporation or partnership.
(s) "Interested Person" has the meaning ascribed to it in Section
2(a)(19) of the 1940 Act.
(t) "Interest(s)" shall mean the interest of a Holder in any class,
including all rights, powers and privileges accorded to Holders in this
Agreement, which interest may be expressed as a percentage, determined by
calculating, as the Directors shall from time to time determine, the ratio of
each Holder's Book Capital Account balance in any class to the total of all
Holders' Book Capital Account balances in such class. Reference herein to a
specific percentage in, or fraction of, Interests of the Holders means Holders
whose combined Book Capital Accounts represent such specified percentage or
fraction of the Book Capital Accounts of all Holders of any class or of the
Company as a whole (as the context may require).
(u) "Investment Adviser" means the party, other than the Company, to
any investment management contract described in Section 4.1 hereof.
(v) "1940 Act" means the provisions of the Investment Company Act of
1940, as amended, and the rules and regulations thereunder as amended from time
to time and any order or orders thereunder which may from time to time be
applicable to the Company.
(w) "Person" means and includes individuals, limited liability
companies, corporations, partnerships, trusts, associations, joint ventures and
other entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
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(x) "Registration Statement" means the currently effective
registration statement of the Company (as successor to the Trust) under the 1940
Act, as it may be amended or supplemented from time to time.
(y) "Statutory Trust Act" means the Delaware Statutory Trust Act, 12
Del. C. xx.xx. 3801 et seq., as amended from time to time.
(z) The use herein of the masculine or feminine gender or the
neutral shall be construed to refer to the other gender or the neutral as well,
and the use herein of the singular shall be construed to include the plural and
the plural to include the singular, as the context may require.
ARTICLE II
DIRECTORS
Number of Directors and Qualification. The number of Directors shall
initially be five (5), who shall be Xxxxxx X. Xxxx, Xx., Xxxxx X. Xxxx, Xxxxx X.
Xxxxx, W. Xxxx Xxxxxx and Xxxxx X. Xxxxxxx. Hereafter, the number of Directors
shall be such number as shall be fixed from time to time by a written instrument
signed by a majority of the Directors then in office, provided, however, that
the number of Directors shall in no event be less than three (3) or more than
fifteen (15). Any vacancy created by an increase in Directors may be filled by
the appointment of any Person having the qualifications described in this
Article made by a written instrument signed by a majority of the Directors then
in office. Any such appointment shall not become effective, however, until the
Person named in the written instrument of appointment shall have accepted in
writing such appointment and agreed in writing to be bound by the terms of this
Agreement. No reduction in the number of Directors shall have the effect of
removing any Director from office. Whenever a vacancy in the number of Directors
shall occur, until such vacancy is filled as provided in this Section and
Section 2.4 hereof, 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 by this Agreement.
Term and Election. Except as otherwise provided in the 1940 Act,
each Director shall hold office until such Director resigns or is removed as
provided in Section 2.3 below.
Resignation, Retirement and Removal. Any Director may resign
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered to the other Directors, and such resignation shall
be effective upon such delivery or at any later date according to the terms of
the instrument. Any of the Directors may be removed by the action of two-thirds
of the remaining Directors; provided, that if the removal of one or more
Directors would have the effect of reducing the number of remaining Directors
below the minimum number prescribed by Section 2.1 hereof, then subject to
Section 16(a) of the 1940 Act, at the time of the removal of such Director or
Directors, the remaining Directors shall elect or appoint a number of additional
Directors at least sufficient to increase the number of Directors holding office
to the minimum number prescribed by Section 2.1 hereof.
Vacancies. The term of office of a Director shall terminate and a
vacancy shall occur in the event of such Director's death, resignation,
retirement, removal, bankruptcy,
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adjudicated incompetence or other legal disability to perform the duties of the
office of Director. No such vacancy shall operate to annul this Agreement or to
revoke any existing obligations created pursuant to the terms of this Agreement.
In the case of a vacancy, the Holders of at least a majority of the Interests
cast, acting at any meeting of the Holders held in accordance with Section 9.1
hereof, or, to the extent permitted by the 1940 Act, a majority vote of the
Directors continuing in office acting by written instrument or instruments, may
fill such vacancy, and any Director so elected by the Directors or the Holders
shall hold office as provided in this Agreement.
Meetings. Regular meetings of the Directors may be held on such
notice at such place or places and times as may be fixed by the By-Laws or by
resolution of the Directors. Special Meetings of the Directors shall be held
upon the call of the Chairman, if any, the president, the secretary, or any
Director, by oral or electronic or written notice duly served on or sent, mailed
or sent by telecopy or e-mail to each Director not less than one day before the
meeting. No notice need be given to any Director who attends in person or to any
Director who, in writing signed and filed with the records of the meeting either
before or after the holding thereof, waives notice. Notice or waiver of notice
need not state the purpose or purposes of the meeting. The Directors may act
with or without a meeting, subject to the requirements of the 1940 Act. A quorum
for all meetings of the Directors shall be a majority of the Directors. Unless
provided otherwise in this Agreement, any action of the Directors may be taken
at a meeting by vote of a majority of the Directors present (a quorum being
present) or without a meeting by written consent of a majority of the Directors.
Any committee of the Directors, including an executive committee, if
any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless provided otherwise
in this Agreement, any action of any such committee may be taken at a meeting by
vote of a majority of the members present (a quorum being present) or without a
meeting by written consent of a majority of the members.
With respect to actions of the Directors and any committee of the
Directors, Directors who are Interested Persons of the Company within the
meaning of Section 1.2 hereof or otherwise interested in any action to be taken
may be counted for quorum purposes under this Section 2.5 and shall be entitled
to vote to the extent permitted by the 1940 Act.
All or any one or more Directors may participate in a meeting of the
Directors or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to such
communications system shall constitute presence in person at such meeting.
Officers; Chairman. The Directors shall, from time to time, elect a
President, a Secretary and a Treasurer. The Directors may elect or appoint, from
time to time, a Chairman who shall preside at all meetings of the Directors and
carry out such other duties as the Directors shall designate. The Directors may
elect or appoint or authorize the President to appoint such other officers or
agents with such powers as the Directors may deem to be advisable. The
President, the Secretary and the Treasurer may, but need not, be Directors.
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By-Laws. The Directors may adopt By-Laws not inconsistent with this
Agreement for the conduct of activities of the Company and may amend or repeal
such By-Laws to the extent such power is not reserved to the Holders by express
provision of such By-Laws. This Agreement and the By-Laws shall together
constitute the "limited liability company agreement" of the Company within the
meaning of Section 18-101(7) of the Act.
ARTICLE III
POWERS OF DIRECTORS
General. The Directors shall have exclusive and absolute authority
and control over the Company Property and over the activities of the Company to
the fullest extent permitted by the Act and other applicable law, but with such
powers of delegation as may be permitted by this Agreement. The Directors shall
have power to conduct the activities of the Company and to carry on their
operations and maintain offices both within and without the State of Delaware,
in any and all states of the United States of America, and in the District of
Columbia, in any foreign country, and in any and all commonwealths, territories,
dependencies, colonies, possessions, agencies or instrumentalities of the United
States of America and of foreign governments, and to do all such other things
and execute all such instruments as they deem necessary, proper or desirable in
order to promote the interests of the Company although such things are not
herein specifically mentioned. Any determination as to what is in the interests
of the Company made by the Directors in good faith shall be conclusive. In
construing the provisions of this Agreement, the presumption shall be in favor
of a grant of power to the Directors. The Directors will not be required to
obtain any court order to deal with Company Property.
The enumeration of any specific power herein shall not be construed
as limiting the aforesaid powers. Such powers of the Directors may be exercised
without order of or resort to any court.
Activities and Investments. The Directors shall have the power with
respect to the Company:
(a) to conduct, operate and carry on the activities of an investment
company, and, in connection therewith:
(i) to subscribe for, purchase or otherwise acquire and invest
and reinvest in, to hold for investment or otherwise, to sell, transfer, assign,
negotiate, exchange, lend or otherwise dispose of, and to turn to account or
realize upon and generally deal in and with, domestic or foreign securities
(which term, "securities," shall include without limitation any and all bills,
notes, bonds, debentures or other obligations or evidences of indebtedness,
certificates of deposit, bankers acceptances, commercial paper, repurchase
agreements or other money market instruments; stocks, shares or other equity
ownership interests (including non-publicly traded or illiquid securities and
those securities the disposition of which is restricted under the Federal
securities laws); convertible securities; mortgage-backed or other asset-backed
securities; and warrants, options or other instruments representing rights to
subscribe for, purchase, receive or otherwise acquire or to sell, transfer,
assign or otherwise dispose of, and scrip, certificates, receipts or other
instruments evidencing any ownership rights or interests in,
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any of the foregoing; and "forward commitment", "when issued" and "delayed
delivery" contracts for securities, issued, guaranteed or sponsored by any
governments, political subdivisions or governmental authorities, agencies or
instrumentalities, by any individuals, firms, companies, corporations,
syndicates, associations or trusts, or by any other organizations or entities
whatsoever, irrespective of their forms or the names by which they may be
described, whether or not they be organized and operated for profit, and whether
they be domestic or foreign with respect to the State of Delaware or the United
States of America); and
(ii) to acquire and become the owner of or interested in any
securities by delivering or issuing in exchange or payment therefor, in any
lawful manner, any of the Company Property; and
(iii) to exercise while the owner of any securities or
interests therein any and all of the rights, powers and privileges of ownership
of such securities or interests, including without limitation any and all voting
rights and rights of assent, consent or dissent pertaining thereto, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value thereof; and
(iv) to purchase, sell and hold currencies and enter into
contracts for the future purchase or sale of currencies, including but not
limited to forward foreign currency exchange contracts; and
(v) to enter into futures and forward contracts, and to
purchase and write put and call options on futures contracts, securities,
currencies and securities indexes; and
(vi) to make loans to the extent provided in the Registration
Statement from time to time; and
(vii) to engage in such other activities as may be disclosed
in the Registration Statement from time to time; and
(b) to conduct, operate and carry on any other lawful activities
which the Directors, in their sole and absolute discretion, consider to be (i)
incidental to the activities of the Company as an investment company, (ii)
conducive to or expedient for the benefit or protection of the Company or the
Holders, or (iii) calculated in any other manner to promote the interests of the
Company or the Holders.
The Directors shall not be limited to investing in securities maturing before
the possible dissolution of the Company, nor shall the Directors be limited by
any law limiting the investments that may be made by fiduciaries.
Notwithstanding anything to the contrary herein contained but consistent with
the applicable investment objectives, the Company shall be managed in compliance
with the requirements of the Code applicable to regulated investment companies.
Legal Title. Title to all of the assets of the Company shall at all
times be considered as vested in the Company. A limited liability company
interest in the Company is personal property. A Holder has no interest in
specific Company Property.
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Sale of Interests; Reclassification. Subject to more detailed
provisions set forth in Article V and the Directors' duty of impartiality to the
Holders, the Directors shall have the power to permit any Institutional Investor
to purchase Interests and to add to or reduce, in whole or in part, their
Interests in any class, provided that Interests shall be sold only to
Institutional Investors. The Directors shall also have the power to acquire,
hold, resell, dispose of, transfer, classify, reclassify and otherwise deal in
Interests of the Company or class. The Directors may hold as treasury Interests
(without such Interests being deemed to be canceled), re-issue for such
consideration and on such terms as they determine, or cancel, in their
discretion from time to time, any Interests in any class thereof reacquired by
the Company.
Borrowing Money; Pledging Company Assets; Lending Property. Subject
to any applicable Fundamental Policies of the Company or any applicable
provision of the By-Laws, the Directors shall have power, on behalf of the
Company, to borrow money or otherwise obtain credit and to secure the same by
mortgaging, pledging or otherwise subjecting as security any of the Company
Property, to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person and to lend Company Property.
Delegation; Committees. The Directors shall have power, consistent
with their continuing exclusive authority over the management of the Company and
the Company Property, to delegate from time to time to such committee or
committees as they may from time to time appoint from among their own number or
to such officers, employees or agents of the Company as they may from time to
time designate the doing of such things and the execution of such instruments
either in the name of the Company or the names of the Directors or otherwise as
the Directors may deem expedient.
Collection and Payment. The Directors shall have power to collect
all property due to the Company; to pay all claims, including taxes, against the
Company Property; to prosecute, defend, compromise or abandon any claims
relating to the Company Property; to foreclose any security interest securing
any obligations by virtue of which any property is owed to the Company; and to
enter into releases, agreements and other instruments.
Expenses. The Directors shall have the power to incur and pay, out
of the income or the principal of the Company Property, any expenses which, in
the opinion of the Directors, are necessary or incidental to carrying out any of
the purposes of this Agreement, and to pay reasonable compensation from the
funds of the Company to themselves as Directors. The Directors shall not be
obligated to account to the Holders for the retention of compensation, and each
Holder agrees that compliance with the accounting requirements of the 1940 Act
and of this Agreement shall constitute satisfactory accounting with respect to
all acts of the Directors. The Directors shall fix the compensation of all
officers, employees and Directors of the Company and may pay such compensation
out of the Company Property without reduction of the Directors' compensation.
Common Items. All expenses and other items of the Company shall be
borne by or allocated to each Holder proportionately based upon the relative net
asset values of each Holder. Such common items shall include, but not be limited
to, Directors' fees; 1940 Act registration expenses; organizational expenses of
the Company; and accounting expenses relating
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to the Company.
Litigation. The Directors shall have the power to engage in and to
prosecute, defend, compromise, abandon, or adjust, by arbitration or otherwise,
any actions, suits, proceedings, disputes, claims, and demands relating to the
Company or the Company Property, and, out of the Company Property, to pay or to
satisfy any debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include without limitation
the power of the Directors or any appropriate committee thereof, in the exercise
of their or its good faith business judgment, consenting to dismiss any action,
suit, proceeding, dispute, claim or demand, brought by any Person, including, to
the extent permitted by applicable law, a Holder in such Holder's own name or in
the name of the Company, whether or not the Company, or any of the Directors may
be named individually therein or the subject matter arises by reason of business
for or on behalf of the Company.
Tax Matters. The Directors shall have the exclusive power, authority
and responsibility with respect to the Company regarding (i) preparation and
filing of tax returns; (ii) providing reports to the Holders regarding tax
information necessary to the filing of their respective tax returns; (iii)
making any and all available elections with respect to the tax treatment of the
Company and its investments; (iv) representing the Company before the Internal
Revenue Service and/or any state taxing authority and exercising the powers and
authorities of a tax matters partner under the Code with respect to the
Company's tax returns; (v) exercising such responsibility as may be imposed by
law with respect to withholding from a Holder's share of income or
distributions; (vi) providing to the accountants of the Company such
instructions regarding allocations of realized income, gains and losses as may
be necessary or appropriate to assure compliance by the Company with applicable
provisions of the Code and Treasury Regulations; and (vii) any and all other tax
matters.
Miscellaneous Powers. The Directors shall have the power to: (a)
employ or contract with such Persons as the Directors may deem desirable for the
transaction of the activities of the Company and eliminate such employees or
contractual relationships as they consider appropriate; (b) enter into joint
ventures, partnerships and any other combinations or associations; (c) remove
Directors or fill vacancies in or add to their number, subject to and in
accordance with Sections 2.3 and 2.4 hereof; elect and remove at will such
officers and appoint and terminate such agents or employees as they consider
appropriate; and appoint from their own number and terminate at will any one or
more committees that may exercise some or all of the power and authority of the
Directors as the Directors may determine; (d) purchase, and pay for out of
Company Property, insurance policies insuring the Company Property, and, to the
extent permitted by law and not inconsistent with any applicable provision of
this Agreement or the By-Laws, insuring the Investment Adviser, Administrator,
placement agent, Holders, Directors, officers, employees, agents or independent
contractors of the Company against all claims arising by reason of holding any
such position or by reason of any action taken or omitted to be taken by any
such Person in such capacity, whether or not constituting negligence, or whether
or not the Company would have the power to indemnify such Person against such
liability; (e) indemnify any person with whom the Company has dealings,
including the Holders, Directors, officers, employees, agents, Investment
Adviser, Administrator, placement agent and independent contractors of the
Company, to such extent permitted by law and not inconsistent with the
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applicable provisions of this Agreement; (f) subject to applicable Fundamental
Policies, guarantee indebtedness or contractual obligations of others; (h)
determine and change the fiscal year of the Company and the method by which its
accounts shall be kept; and (g) adopt a seal for the Company, but the absence of
such seal shall not impair the validity of any instrument executed on behalf of
the Company.
Manner of Acting. Except as otherwise provided herein, in the
By-Laws, in the 1940 Act or in any other applicable provision of law, any action
to be taken by the Directors may be taken in the manner set forth in Section 2.5
hereof.
ARTICLE IV
MANAGEMENT, ADMINISTRATIVE SERVICES
AND PLACEMENT AGENT ARRANGEMENTS; CUSTODIAN
Management and Other Arrangements. The Directors may in their
discretion, from time to time, enter into management and administrative services
contracts or placement agent agreements whereby the other party to such contract
or agreement shall undertake to furnish such management, administrative,
placement agent and/or other services as the Directors shall, from time to time,
consider desirable with respect to the Company and upon such terms and
conditions as the Directors may in their discretion determine. Notwithstanding
any other provisions of this Agreement, the Directors may authorize any
Investment Adviser (subject to such general or specific instructions as the
Directors may, from time to time, adopt) to effect purchases, sales, loans or
exchanges of Company Property or may authorize any officer, employee or Director
to effect such purchases, sales, loans or exchanges pursuant to recommendations
of any such Investment Adviser (and all without further action by the
Directors). Any such purchase, sales, loans and exchanges shall be deemed to
have been authorized by all of the Directors.
Parties to Contract. Any contract of the character described in
Section 4.1 of this Article IV or in the By-Laws of the Company may be entered
into with any corporation, firm, trust or association, although one or more of
the Directors or officers of the Company may be an officer, director, trustee,
shareholder, or member of such other party to the contract; and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Company under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article IV
or the By-Laws. The same Person (including a firm, corporation, trust, or
association) may be the other party to contracts entered into pursuant to
Section 4.1 above or the By-Laws of the Company, and any individual may be
financially interested or otherwise affiliated with Persons who are parties to
any or all of the contracts mentioned in this Section 4.2.
Custodian. The Directors may appoint one or more banks or trust
companies as custodian of the securities and cash belonging to the Company. The
agreement providing for such appointment shall contain such terms and conditions
as the Directors in their discretion determine to be not inconsistent with this
Agreement, the applicable provisions of the 1940 Act
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and any applicable provisions of the By-Laws of the Company. One or more
subcustodians may be appointed in a manner not inconsistent with this Agreement,
the applicable provisions of the 1940 Act and any applicable provisions of the
By-Laws of the Company.
ARTICLE V
INTERESTS IN THE COMPANY
Interests. Subject to the limitations contained in Section 5.8
relating to the number of permitted Holders, the limited liability company
interests in the Company shall consist of an unlimited number of
non-transferable Interests that shall be denominated in dollars corresponding to
the value of such Interests determined by reference to the corresponding Book
Capital Accounts. All Interests shall be validly issued, fully paid and
nonassessable when issued for such consideration as the Directors shall
determine. The Directors may permit the purchase of Interests (for cash or other
consideration acceptable to the Directors, subject to the requirements of the
0000 Xxx) but only if the purchaser is an Institutional Investor. Subject to
applicable law, the provisions hereof and such restrictions as may be adopted by
the Directors, any Holder may increase its Interest by contributions or decrease
its Interest by withdrawals without limitation. Any Person to whom Interests are
issued after the date hereof shall be admitted to the Company as a Holder when
it acquires an Interest and it is reflected on the register of Holders.
Classes of Interests. The Directors may, without approval of the
Holders of any Interests, establish and designate classes of Interests or divide
Interests into two or more classes, Interests of each class having such
preferences and special or relative rights and privileges (including conversion
rights, if any) as the Directors may determine in their sole discretion.
The establishment and designation of any class of Interests shall be
effective upon the execution by the Secretary or an Assistant Secretary of the
Company, pursuant to authorization by a majority of the Directors, of an
instrument setting forth such establishment and designation and the relative
rights and preferences of such class. The initial classes of the Company shall
be Master Institutional Portfolio, Master Premier Institutional Portfolio,
Master Institutional Tax-Exempt Portfolio, Master Government Portfolio and
Master Treasury Portfolio. The Directors may amend the By-laws providing for
class votes and meetings and related matters. Notwithstanding anything set forth
in Section 5.10, classes of Interests shall not be required to vote or receive
distributions on a pro rata basis unless required by applicable law or the terms
of the instrument establishing such class.
The Interests shall have the following relative rights and
preferences: on each matter submitted to a vote of the Holders, each Holder of
an Interest shall be entitled to a vote proportionate to its Interest as
recorded on the books of the Company and all Holders of Interests shall vote as
a separate class except as to voting for Directors and as otherwise required by
the 1940 Act, in which case all Holders shall vote together as a single class.
As to any matter that does not affect the interest of a particular class, only
the Holders of Interests of the one more affected class shall be entitled to
vote.
Rights of Holders. The ownership of the Company Property of every
description
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and the right to conduct any activities hereinbefore described shall be vested
exclusively in the Company, and the Holders shall have no interest therein.
Holders shall have no right to call for any partition or division of any
property, profits, rights or interests of the Company. The Interests shall be
personal property giving only the rights specifically set forth in this
Agreement. The Holders shall have no right to demand payment for their Interests
or any other rights of dissenting shareholders in the event the Company
participates in any transaction that would give rise to appraisal or dissenter's
rights by a shareholder of a corporation organized under the General Corporation
Law of the State of Delaware or otherwise. Holders shall have no preemptive or
other rights to subscribe for additional Interests or other securities issued by
the Company. All Persons, by virtue of acquiring an Interest in the Company and
being registered as a Holder in accordance with Section 5.5 hereof, shall be
deemed to have assented to, and shall be bound by, this Agreement to the same
extent as if such Person was a party hereto.
Purchase of or Increase in Interests. The Directors, in their
discretion, may, from time to time, without a vote of the Holders, permit the
purchase of additional Interests by an Institutional Investor or Institutional
Investors (including existing Holders), subject to the provisions of Section 5.1
hereof, and for such type of consideration, including cash or property, at such
time or times (including, without limitation, each business day), and on such
terms as the Directors may deem best, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities) and businesses.
Register of Interests. A register shall be kept by the Company that
shall contain the names and addresses of the Holders and the Book Capital
Account balances of each Holder. Each such register shall be conclusive as to
who the Holders are and who shall be entitled to payments of distributions or
otherwise to exercise or enjoy the rights of Holders. No Holder shall be
entitled to receive payment of any distribution, nor to have notice given to it
as herein provided, until it has given its address to such officer or agent of
the Company as shall keep the said register for entry thereon.
Non-Transferability. To the fullest extent permitted by law,
Interests shall not be transferable and no transferee shall be recognized as a
Holder except with the prior written consent of all of the Directors and all
remaining Holders of Interests.
Notices. Any and all notices to which any Holder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Holder of record at its last known
address as recorded on the register of the Company or transmitted to the Holders
by any other method permitted by law.
Limitation on Number of Holders. Notwithstanding any provision
hereof to the contrary, the number of Holders of Interests shall be limited to
fewer than 100. Solely for purposes of determining the number of Holders of
Interests under this Section 5.8, each beneficial owner of a grantor trust that
is itself a Holder shall be treated as a Holder of such Interest.
No Liability of Holders. All Interests, when issued in accordance
with this Agreement, shall be fully paid and nonassessable. Holders shall be
entitled to the full protection
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against personal liability for the obligations of the Company under Section
18-303 of the Act. The Company shall indemnify and hold each Holder harmless
from and against any claim or liability to which such Holder may become subject
solely by reason of his or her being or having been a Holder and not because of
such Holder's acts or omissions or for some other reason, and shall reimburse
such Holder for all legal and other expenses reasonably incurred by him or her
in connection with any such claim or liability (upon proper and timely request
by the Holder).
ARTICLE VI
DECREASES AND WITHDRAWALS
Decreases and Withdrawals. A Holder shall have the right on any day
the New York Stock Exchange is open to decrease its Interest in the Company and
to withdraw completely from, at the next determined net asset value attributable
to the Interest (or portion thereof) being withdrawn, and an appropriate
adjustment therefor shall be made to such Holder's Book Capital Account. The
rights of a Holder upon withdrawal from the Company shall be limited to the
assets belonging to the Company which the withdrawal is made. The Company may,
subject to compliance with the 1940 Act, charge fees for effecting such decrease
or withdrawal, at such rates as the Directors may establish, and may at any time
and from time to time, suspend such right of decrease or withdrawal. The
procedures for effecting decreases or withdrawals shall be as determined by the
Directors from time to time, subject to the requirements of the 1940 Act.
ARTICLE VII
DETERMINATION OF BOOK CAPITAL ACCOUNT BALANCES,
NET INCOME AND DISTRIBUTIONS
Book Capital Account Balances. The Book Capital Account balances of
Holders of the Company shall be determined on such days and at such time or
times as the Directors may determine, consistent with the requirements of the
1940 Act, with income, gains and losses of each class thereof determined in
accordance with generally accepted accounting principles to be allocated among
the Holders of such class thereof in accordance with their Interests. The power
and duty to make calculations of the Book Capital Account balances of the
Holders may be delegated by the Directors to the Investment Adviser,
Administrator, Custodian, or such other person as the Directors may determine.
Allocations and Distributions to Holders. In compliance with the
Treasury Regulations promulgated under applicable provisions of the Code, the
Directors shall (1) allocate items of taxable income, gain, loss and deduction
with respect to each Holder, provided that, except as may otherwise be
specifically provided in the Treasury Regulations, in all cases allocations of
specific types of income shall be proportionate to the Interests of the Holders
in a particular class thereof, and (ii) upon liquidation of the Interests of a
Holder, make final distribution of the net assets of such a particular Holder in
accordance with such Holder's respective Book Capital Accounts. The Directors
shall provide each Holder that is a regulated investment company, as defined in
Section 851(a) of the Code, information that will enable it to take into account
its share of items of taxable income, gain, loss and deduction as they are taken
into account by the Company in order to facilitate compliance with Code Section
4982. Any
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income tax withholding or other withholding of taxes required by law with
respect to the allocable share of income of, or distributions to, a Holder shall
be accounted for as a distribution to and charged to the Book Capital Account of
such Holder at the time of payment of such taxes to the applicable taxing
authority.
Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article VII, the Directors may prescribe, in their
absolute discretion, such other bases and times for determining the net income
and net assets of the Company and of each class as they may deem necessary or
desirable to enable the Company to comply with any provision of the 1940 Act,
any rule or regulation thereunder, or any order of exemption issued by said
Commission, all as in effect now or hereafter amended or modified.
ARTICLE VIII
LIABILITY FOR COMPANY OBLIGATIONS
No Personal Liability of Directors, etc.
(a) Directors. The Directors shall be entitled to the protection
against personal liability for the obligations of the Company under Section
18-303 of the Act. No Director shall be liable to the Company, its Holders, or
to any Director, officer, employee, or agent thereof for any action or failure
to act (including, without limitation, the failure to compel in any way any
former or acting Director to redress any breach of trust) except for his own bad
faith, willful misfeasance, gross negligence or reckless disregard of his
duties.
(b) Officers, Employees or Agents of the Company. The officers,
employees and agents of the Company, when acting in such capacities, shall not
be personally liable to any person other than the Company or a Holder for any
act, omission or obligation of the Company or Director. No officer, employee or
agent of the Company shall be liable to the Company, its Holders, or to any
Director, officer, employee, or agent thereof for any action or failure to act
(including, without limitation, the failure to compel in any way any former or
acting Director to redress any breach of trust) except for his own bad faith,
willful misfeasance, gross negligence or reckless disregard of his duties.
(c) The provisions of this Agreement, to the extent that they expand
or restrict the duties and liabilities of the Directors, officers, employees or
agents of the Company otherwise existing at law or in equity, are agreed by the
Holders to modify to that extent such other duties and liabilities.
Indemnification. The Company shall indemnify each of its Directors,
officers, employees, and agents (including persons who serve at its request as
directors, officers or trustees of another organization in which it has any
interest, as a shareholder, creditor or otherwise) against all liabilities and
expenses (including amounts paid in satisfaction of judgments, in compromise, as
fines and penalties, and as counsel fees) reasonably incurred by him in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he may be involved or with which
he may be threatened, while in office or thereafter, by reason of his being or
having been such a Director, officer, employee or agent, except with respect to
any matter as to which he shall have been adjudicated to have acted
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in bad faith, willful misfeasance, gross negligence or reckless disregard of his
duties; provided, however, that as to any matter disposed of by a compromise
payment by such Person, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless there has been a determination that such Person did not engage
in willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office by the court or other body
approving the settlement or other disposition or, in the absence of a judicial
determination, by a reasonable determination, based upon a review of readily
available facts (as opposed to a full trial-type inquiry), that he did not
engage in such conduct, which determination shall be made by a majority of a
quorum of Directors who are neither Interested Persons of the Company nor
parties to the action, suit or proceeding, or by written opinion from
independent legal counsel approved by the Directors. The rights accruing to any
Person under these provisions shall not exclude any other right to which he may
be lawfully entitled; provided that no Person may satisfy any right of indemnity
or reimbursement granted herein or to which he may be otherwise entitled except
out of the Company Property. The Directors may make advance payments in
connection with indemnification under this Section 8.2; provided that any
advance payment of expenses by the Company to any Director, officer, employee or
agent shall be made only upon the undertaking by such Director, officer,
employee or agent to repay the advance unless it is ultimately determined that
he is entitled to indemnification as above provided, and only if one of the
following conditions is met:
(d) the Director, officer, employee or agent to be indemnified
provides a security for his undertaking; or
(e) the Company shall be insured against losses arising by reason of
any lawful advances; or
(f) there is a determination, based on a review of readily available
facts, that there is reason to believe that the Director, officer, employee or
agent to be indemnified ultimately will be entitled to indemnification, which
determination shall be made by:
(i) a majority of a quorum of Directors who are neither
Interested Persons of the Company nor parties to the Proceedings; or
(ii) an independent legal counsel in a written opinion.
No Protection Against Certain 1940 Act Liabilities. Nothing
contained in Sections 8.1 or 8.2 hereof shall protect any Director or officer of
the Company from any liability to the Company or its Holders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office. Nothing contained in Sections 8.1 or 8.2 hereof or in any agreement of
the character described in Section 4.1 or 4.2 hereof shall protect any
Investment Adviser to the Company against any liability to the Company to which
he would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of his or its duties to the Company, or by
reason of his or its reckless disregard to his or its obligations and duties
under the agreement pursuant to which he serves as Investment Adviser to the
Company.
No Bond Required of Directors. No Director shall be obligated to
give any bond
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or other security for the performance of any of his duties hereunder.
No Duty of Investigation; Notice in Company Instruments, etc. No
purchaser, lender, seller or other Person dealing with the Directors or with any
officer, employee or agent of the Company shall be bound to make any inquiry
concerning the validity of any transaction purporting to be made by the
Directors or by said officer, employee or agent or be liable for the application
of money or property paid, lent or delivered to or on the order of the Directors
or of said officer, employee or agent. Every contract, undertaking, instrument,
certificate, interest or obligation or other security of the Company, and every
other act or thing whatsoever executed in connection with the Company, shall be
conclusively presumed to have been executed or done by the executors thereof
only in their capacity as Directors under this Agreement or in their capacity as
officers, employees or agents of the Company. Every written obligation,
contract, instrument, certificate or other interest or undertaking of the
Company made or sold by the Directors or by any officer, employee or agent of
the Company, in his capacity as such, may contain an appropriate recital to the
effect that the Holders, Directors, officers, employees and agents of the
Company shall not personally be bound by or liable thereunder, nor shall resort
be had to their private property for the satisfaction of any obligation or claim
thereunder, and appropriate references shall be made therein to this Agreement,
and may contain any further recital that they may deem appropriate, but the
omission of such recital shall not operate to impose personal liability on any
of the Holders, Directors, officers, employees or agents of the Company.
Insurance. The Directors may maintain insurance for the protection
of the Company Property, its Holders, Directors, officers, employees and agents
in such amount as the Directors shall deem adequate to cover possible tort
liability, and such other insurance as the Directors in their sole judgment
shall deem advisable.
Reliance on Experts, etc. Each Director, officer or employee of the
Company shall, in the performance of his duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Company, upon an opinion of counsel, or upon reports made to the Company by any
of its officers or employees or by any Investment Adviser, the Administrator,
accountant, appraiser or other expert or consultant selected with reasonable
care by the Directors, officers or employees of the Company, regardless of
whether such counsel or expert may also be a Director; provided that nothing in
this Section shall be deemed to exonerate the Directors from their duties of
reasonable care, diligence and prudence or any other duties imposed by the 1940
Act.
Accounting. The Directors shall not be required to file any
inventory or accounting with any court or officer of any court, unless
specifically ordered to do so on the application of the Directors or on the
application of the Holders of Interests of the Company, or on the court's own
motion.
ARTICLE IX
HOLDERS
Meetings of Holders. Meetings of the Holders may be called at any
time by a
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majority of the Directors and shall be called by any Director upon written
request of Holders holding, in the aggregate, not less than 10% of the Interests
of the Company, such request specifying the purpose or purposes for which such
meeting is to be called. Any such meeting shall be held within or without the
State of Delaware on such day and at such time as the Directors shall designate.
Holders of at least one-third of the Interests of the Company, present in person
or by proxy, shall constitute a quorum for the transaction of any business,
except as may otherwise be required by the 1940 Act or other applicable law or
by this Agreement or the By-Laws of the Company. If a quorum is present at a
meeting, an affirmative vote by the Holders present, in person or by proxy,
holding more than 50% of the total Interests of the Holders present, either in
person or by proxy, at such meeting constitutes the action of the Holders,
unless the 1940 Act, other applicable law, this Agreement or the By-Laws of the
Company require a greater number of affirmative votes.
Notice of Meetings. Notice of all meetings of the Holders stating
the time, place and purposes of the meeting, shall be given by the Directors by
mail to each Holder of the Company, as the case may be, at his registered
address or transmitted to the Holders by any other method permitted by law, sent
at least 10 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be considered whether or
not stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
Record Date for Meetings. For the purpose of determining Holders who
are entitled to notice of and to vote at any meeting, or to participate in any
distribution, or for the purpose of any other action, the Directors may from
time to time fix a date, not more than 90 days prior to the date of any meeting
of the Holders or payment of distributions or other action, as the case may be,
as a record date for the determination of the Persons to be treated as Holders
of record of the Company for such purposes.
Proxies, etc. At any meeting of Holders, any Holder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Secretary, or with such other
officer or agent of the Company as the Secretary may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of
a majority of the Directors, proxies may be solicited in the name of one or more
Directors or one or more of the officers of the Company. Only Holders of record
shall be entitled to vote. Each Holder shall be entitled to vote proportionate
to his Interest in the Company. When Interests are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Interest, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Interest. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. If the Holder is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person as regards the charge or management of his Interest,
he may vote by his guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy.
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Reports. The Directors shall cause to be prepared, at least
annually, a report of operations containing a balance sheet and statement of
income and undistributed income of the Company prepared in conformity with
generally accepted accounting principles and an opinion of an independent public
accountant on such financial statements. The Directors shall, in addition,
furnish to the Holders at least semi-annually interim reports containing an
unaudited balance sheet as of the end of such period and an unaudited statement
of income and surplus for the period from the beginning of the current fiscal
year to the end of such period.
Inspection of Records. The records of the Company shall be open to
inspection by Holders during normal business hours for any purpose not harmful
to the Company.
Holder Action by Written Consent. Any action that may be taken by
Holders may be taken without a meeting if Holders holding more than 50% of the
total Interests entitled to vote (or such larger proportion thereof as shall be
required by any express provision of this Agreement) shall consent to the action
in writing or by any other method permitted by law and evidence of the consents
are filed with the records of the meetings of Holders. Such consent shall be
treated for all purposes as a vote taken at a meeting of Holders.
ARTICLE X
DURATION; DISSOLUTION OF THE
COMPANY; AMENDMENT; MERGERS; ETC.
Duration. Subject to possible termination or dissolution in
accordance with Sections 10.2 and 10.3, respectively, the Company created hereby
shall have perpetual existence.
Dissolution of Company. The Company shall be dissolved by a
resolution adopted by a majority of the Directors followed by notice of
dissolution to the Holders of the Interests in the Company.
Actions Upon Dissolution.
(a) Upon an event of dissolution of the Company, the affairs of the
Company shall be wound-up in accordance with the following provisions:
(i) The Company shall thereafter carry on no business except
for the purpose of winding up its affairs.
(ii) The Directors shall proceed to wind up the affairs of the
Company and all of the powers of the Directors under this Agreement shall
continue until the affairs of the Company shall have been wound up, including
the power to fulfill or discharge the contracts of the Company, collect its
assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or
any part of the remaining Company Property to one or more persons at public or
private sale for consideration that may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its liabilities, and
to do all other acts appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, transfer or other disposition of all or
substantially all of the Company Property other than for cash, shall require
approval of the principal terms of the transaction and the nature and amount of
the consideration by the vote
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at a meeting, or by written consent, of Holders holding more than 50% of the
total outstanding Interests of the Company entitled to vote.
(iii) After paying (or making reasonable provision for the
payment of) all liabilities and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their protection, the Directors
may distribute the remaining Company Property, in cash or in kind or partly
each, among the Holders according to their Book Capital Accounts.
(b) Upon completion of winding up of the Company's affairs as
provided herein, the Directors shall cause a certificate of cancellation to be
filed in accordance with Section 18-203 of the Act and the Directors shall,
subject to the Act thereupon be discharged from all further liabilities and
duties hereunder, and the rights and interests of all Holders shall thereupon
cease.
Amendment Procedure.
(a) Two-thirds (2/3) of the Directors then in office may amend this
Agreement at any time for any purpose without the approval of the Holders of
Interests; provided, that the vote or a written or other legally permissible
form of consent of Holders holding more than 50% of the total outstanding
Interests or of Holders of 67% or more of the Interests voting or consenting, if
Holders of at least 50% of such Interests vote or consent, shall be necessary to
approve any amendment whenever such vote or consent is required under the 1940
Act.
(b) Nothing contained in this Agreement shall permit the amendment
of this Agreement to impair the exemption from personal liability of Holders,
Directors, officers, employees and agents of the Company.
(c) A certificate signed by a Director or by the Secretary or any
Assistant Secretary of the Company, setting forth an amendment and reciting that
it was duly adopted by the Holders or by the Directors as aforesaid or a copy of
this Agreement, as amended, certified by a Director or the Secretary or any
Assistant Secretary of the Company, certifying that such limited liability
company agreement is a true and correct copy of the limited liability company
agreement of the Company as amended, shall be conclusive evidence of such
amendment when lodged among the records of the Company.
Reorganization and Master/Feeder.
(a) Notwithstanding anything else herein, the Directors may, without
Holder approval unless such approval is required by the 1940 Act, (i) cause the
Company to convert into or merge, reorganize or consolidate with or into one or
more trusts, partnerships, limited liability companies, associations,
corporations or other business entities (or a series of any of the foregoing to
the extent permitted by law) (including trusts, partnerships, limited liability
companies, associations, corporations or other business entities created by the
Directors to accomplish such conversion, merger or consolidation) so long as the
surviving or resulting entity is an open-end management investment company under
the 1940 Act, or is a series thereof to the
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extent permitted by law, and that, in the case of any trust, partnership,
limited liability company, association, corporation or other business entity
created by the Directors to accomplish such conversion, merger or consolidation,
may succeed to or assume the Company's registration under the 1940 Act and that,
in any case, is formed, organized or existing under the laws of the United
States or of a state, commonwealth, possession or colony of the United States,
(ii) cause the Interests to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law, (iii) cause the Company to
incorporate under the laws of a state, commonwealth, possession or colony of the
United States, (iv) sell or convey all or substantially all of the assets of the
Company or any class to another class of the Company or to another trust,
partnership, limited liability company, association, corporation or other
business entity (or a series of any of the foregoing to the extent permitted by
law) (including a trust, partnership, limited liability company, association,
corporation or other business entity created by the Directors to accomplish such
sale and conveyance), organized under the laws of the United States or of any
state, commonwealth, possession or colony of the United States so long as such
trust, partnership, limited liability company, association, corporation or other
business entity is an open-end management investment company under the 1940 Act
and, in the case of any trust, partnership, limited liability company,
association, corporation or other business entity created by the Directors to
accomplish such sale and conveyance, may succeed to or assume the Company's
registration under the 1940 Act, for adequate consideration as determined by the
Directors which may include the assumption of all outstanding obligations, taxes
and other liabilities, accrued or contingent of the Company or any affected
class, and which may include Interests of such other class of the Company or
shares, beneficial interests, stock or other ownership interest of such trust,
partnership, limited liability company, association, corporation or other
business entity (or series thereof) or (v) at any time sell or convert into
money all or any part of the assets of the Company or any class thereof. Any
agreement of merger, reorganization, consolidation, exchange or conversion or
certificate of merger, certificate of conversion or other applicable certificate
may be signed by an authorized person designated by the Directors and facsimile
signatures conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
18-209(f) of the Act, and notwithstanding anything to the contrary contained in
this Agreement, an agreement of merger or consolidation approved by the
Directors in accordance with this Section 10.5 may effect any amendment to the
limited liability company agreement of the Company or effect the adoption of a
new limited liability company agreement of the Company if the Company is the
surviving or resulting limited liability company in the merger or consolidation.
(c) Notwithstanding anything else herein, the Directors may, without
Holder approval unless such approval is required by the 1940 Act, create one or
more limited liability companies or trusts to which all or any part of the
assets, liabilities, profits or losses of the Company or any class thereof may
be transferred and may provide for the conversion of Interests in the Company or
any class thereof into shares or beneficial interests in any such newly created
limited liability company or limited liability companies or trust or trusts or
any series or classes thereof.
(d) Notwithstanding anything else herein, the Directors may, without
Holder approval, invest all or a portion of the Company Property of any class,
or dispose of all or a
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portion of the Company Property of any class, and invest the proceeds of such
disposition in interests issued by one or more other investment companies
registered under the 1940 Act. Any such other investment company may (but need
not) be a limited liability company (formed under the laws of the State of
Delaware or any other state or jurisdiction) which is classified as a
partnership for federal income tax purposes. Notwithstanding anything else
herein, the Directors may, without Holder approval unless such approval is
required by the 1940 Act, cause a class that is organized in the master/feeder
fund structure to withdraw or redeem its Company Property from the master fund
and cause such class to invest its Company Property directly in securities and
other financial instruments or in another master fund.
ARTICLE XI
MISCELLANEOUS
Certificate of Formation. The Directors may amend the Certificate of
Formation from time to time as they deem necessary or desirable.
Governing Law. The rights of all parties and the validity and
construction of every provision hereof shall be governed by, subject to and
construed according to the Act and the laws of the State of Delaware (unless and
to the extent otherwise provided for and/or preempted by the 1940 Act or other
applicable federal securities laws).
Reliance by Third Parties. Any certificate executed by an individual
who, according to the records of the Company, appears to be a Director
hereunder, or Secretary, Assistant Secretary, Treasurer or Assistant Treasurer
of the Company, certifying to: (a) the number or identity of Directors or
Holders, (b) the due authorization of the execution of any instrument or
writing, (c) the form of any vote passed at a meeting of Directors or Holders,
(d) the fact that the number of Directors or Holders present at any meeting or
executing any written instrument satisfies the requirements of this Agreement,
(e) the form of any By-Laws adopted by or the identity of any officers elected
by the Directors, or (f) the existence of any fact or facts that in any manner
relate to the affairs of the Company, shall be conclusive evidence as to the
matters so certified in favor of any Person dealing with the Directors and their
successors.
Provisions in Conflict with Law or Regulations.
(a) The provisions of this Agreement are severable, and if the
Directors shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Code, the Act, or with other applicable laws and regulations,
the conflicting provisions shall be deemed superseded by such law or regulation
to the extent necessary to eliminate such conflict; provided, however, that such
determination shall not affect any of the remaining provisions of this Agreement
or render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Agreement shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
pertain only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Agreement in any jurisdiction.
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Limited Liability Company Only. It is the intention of the Directors
to create only a limited liability company under the Act with the relationship
of manager and member between the Directors and each Holder from time to time.
It is not the intention of the Directors to create a general partnership,
limited partnership, joint stock association, corporation, bailment, or any form
of legal relationship other than a Delaware limited liability company except to
the extent such limited liability company is deemed to constitute a partnership
under the Code and applicable state tax laws. Nothing in this Agreement shall be
construed to make the Holders, either by themselves or with the Directors,
partners or members of a joint stock association.
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