Agreement of Limited Liability Company
of
FT Defined Portfolios LLC
a Delaware Limited Liability Company
Xxxxx X. Xxxxx (the "Member") hereby forms a limited liability company
pursuant to and in accordance with the Delaware Limited Liability
Company Act, 6 Del. C. Section 18-101, et seq. (the "Act"), and
hereby declares the following to be the Limited Liability Company
Agreement of such limited liability company:
1. Name. The name of the limited liability company formed hereby
(the "LLC") is FT Defined Portfolios LLC.
2. Purpose and Powers. The purpose of the LLC is to engage in any
activity for which limited liability companies may be organized in the
State of Delaware. The LLC shall possess and may exercise all of the
powers and privileges granted by the Act or by any other law or by this
Agreement, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business purposes or activities of the LLC.
3. Registered Office. The registered office of the LLC in the
State of Delaware is located at 00 Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000.
4. Registered Agent. The name and address of the registered agent
of the LLC for service of process on the LLC in the State of Delaware
are Lexis Document Services Inc., 00 Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000.
5. Admission of Member. At no time may the LLC have more than one
Member. Simultaneously with the execution and delivery of this
Agreement and the filing of the Certificate of Formation with the Office
of the Secretary of State of the State of Delaware, Xxxxx X. Xxxxx is
admitted as the sole Member of the LLC in respect of the Interest (as
hereinafter defined).
6. Interest. The LLC shall be authorized to issue a single class
of Limited Liability Company Interest (as defined in the Act) (the
"Interest") including any and all benefits to which the holder of such
Interest may be entitled in this Agreement, together with all
obligations of such person to comply with the terms and provisions of
this Agreement.
7. Capital Subscriptions. The Member may contribute cash or other
property to the LLC as it shall decide, from time to time.
8. Tax Characterization and Returns. It is the intention of the
Member that the LLC be disregarded for federal and all relevant state
tax purposes and that the activities of the LLC be deemed to be
activities of the Member for such purposes. All provisions of the LLC's
Certificate of Formation and this Agreement are to be construed so as to
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preserve that tax status. The Member is hereby authorized to file any
necessary elections with any tax authorities and shall be required to
file any necessary tax returns on behalf of the LLC with any such tax
authorities.
9. Management.
a. Board of Trustees. The management of the LLC shall be vested
in a Board of Trustees (the "Board of Trustees") elected by the Member.
The total number of members on the Board of Trustees (the "Trustees")
shall be one unless otherwise fixed at a different number by an
amendment hereto or a resolution signed by the Member. The Member
hereby elects Xxxxx X. Xxxxx as the initial Trustee of the LLC, to serve
until his successors are elected and qualified. A Trustee shall remain
in office until removed by a written instrument signed by the Member or
until such Trustee resigns in a written instrument delivered to the
Member or such Trustee dies or is unable to serve. In the event of any
such vacancy, the Member may fill the vacancy. Each Trustee shall have
one (1) vote. Except as otherwise provided in this Agreement, the Board
of Trustees shall act by the affirmative vote of a majority of the total
number of Trustees. Each Trustee shall perform his or her duties as
such in good faith, in a manner he reasonably believes to be in the best
interests of the LLC, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances. A person who
so performs his duties shall not have any liability by reason of serving
or having served as a Trustee. A Trustee shall not be liable under a
judgment, decree or order of court, or in any other manner, for a debt,
obligation or liability of the LLC.
b. Meetings and Powers of Board of Trustees. The Board of
Trustees shall establish meeting times, dates and places and requisite
notice requirements and adopt rules or procedures consistent with the
terms of this Agreement. Any action required to be taken at a meeting
of the Board of Trustees or any action that may be taken at a meeting of
the Board of Trustees may be taken at a meeting held by means of
conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at
such meeting. Notwithstanding anything to the contrary in this Section
9, the Board of Trustees may take without a meeting any action that may
be taken by the Board of Trustees under this Agreement if such action is
approved by the unanimous written consent of the Trustees.
Except as otherwise provided in this Agreement, all powers to control
and manage the business and affairs of the LLC shall be exclusively
vested in the Board of Trustees and the Board of Trustees may exercise
all powers of the LLC and do all such lawful acts as are not by statute,
the Certificate of Formation or this Agreement directed or required to
be exercised or done by the Member and in so doing shall have the right
and authority to take all actions which the Board of Trustees deems
necessary, useful or appropriate for the management and conduct of the
business of the LLC; provided, however, that the Member may amend this
Agreement at any time and thereby broaden or limit the Board of
Trustees' power and authority.
c. Officers. The LLC shall have officers who are appointed by the
Board of Trustees. The officers of the LLC shall consist of a
President, one or more Vice Presidents, a Secretary and a Treasurer.
The initial officers of the LLC shall be:
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President Xxxxx X. Xxxxx
Vice President Xxxxx X. Field
Treasurer Xxxx X. Xxxxxxx
Secretary W. Xxxxx Xxxxxxx
The powers and duties of each officer shall be as follows:
The President. The President shall have, subject to the supervision,
direction and control of the Board of Trustees, the general powers and
duties of supervision, direction and management of the affairs and
business of the LLC usually vested in the president of a corporation,
including, without limitation, all powers necessary to direct and
control the organizational and reporting relationships within the LLC.
The Vice Presidents. Each Vice President shall have such powers and
perform such duties as may from time to time be assigned to him or her
by the Board of Trustees or the President.
The Secretary. The Secretary shall attend meetings of the Board of
Trustees and meetings of the Member and record all votes and minutes of
all such proceedings in a book kept for such purpose. He or she shall
have all such further powers and duties as generally are incident to the
position of a secretary of a corporation or as may from time to time be
assigned to him or her by the Board of Trustees or the President.
The Treasurer. The Treasurer shall have custody of the LLC's funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the LLC and shall deposit or cause
to be deposited moneys or other valuable effects in the name and to the
credit of the LLC in such depositories as may be designated by the Board
of Trustees. The Treasurer shall also maintain adequate records of all
assets, liabilities, and transactions of the LLC and shall see that
adequate audits thereof are currently and regularly made. The Treasurer
shall have such other powers and perform such other duties that
generally are incident to the position of a treasurer of a corporation
or as may from time to time be assigned to him or her by the Board of
Trustees or the President.
Each of the officers of the LLC shall be an "authorized person" within
the meaning of the Act for purposes of executing the LLC's Certificate
of Formation.
d. Indemnification of the Trustees and Officers. Unless otherwise
provided in this Section 9, the LLC shall indemnify, save harmless, and
pay all judgments and claims against any Trustee or Officer relating to
any liability or damage incurred by reason of any act performed or
omitted to be performed by any Trustee or Officer in connection with the
business of the LLC, including reasonable attorneys' fees incurred by
the Trustee or Officer in connection with the defense of any action
based on any such act or omission, which attorneys' fees may be paid as
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incurred. Unless otherwise provided in this Section 9, in the event of
any action by the Member against any Trustee or Officer, including a
derivative suit, the LLC shall indemnify, save harmless, and pay all
expenses of such Trustee or Officer, including reasonable attorneys'
fees incurred in the defense of such action. Notwithstanding the
provisions of this Section 9, this Section shall be enforced only to the
maximum extent permitted by law and no Trustee or Officer shall be
indemnified from any liability for the fraud, intentional misconduct,
gross negligence or a knowing violation of the law which was material to
the cause of action.
e. Rights and Powers of the Member. The Member shall not have any
right or power to take part in the management or control of the LLC or
its business and affairs or to act for or bind the LLC in any way.
Notwithstanding the foregoing, the Member has all the rights and powers
specifically set forth in this Agreement and, to the extent not
inconsistent with this Agreement, in the Act. The Member has no voting
rights except with respect to those matters specifically set forth in
this Agreement and, to the extent not inconsistent herewith, as required
in the Act. Notwithstanding any other provision of this Agreement, no
action may be taken by the LLC (whether by the Board of Trustees, or
otherwise) in connection with any of the following matters without the
written consent of the Member:
(1) the dissolution or liquidation, in whole or in part, of
the LLC, or the institution of proceedings to have the LLC adjudicated
bankrupt or insolvent;
(2) the filing of a petition seeking or consenting to
reorganization or relief under any applicable federal or state
bankruptcy law;
(3) consenting to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the LLC
or a substantial part of its property;
(4) the merger of the LLC with any other entity;
(5) the sale of all or substantially all of the LLC's assets;
or
(6) the amendment of this Agreement.
10. Distributions. The Board of Trustees may cause the LLC to
distribute any cash held by it which is neither reasonably necessary for
the operation of the LLC nor in violation of Section 18-607 or 18-804 of
the Act to the Member at any time.
11. Assignments. Except as expressly provided herein, the Member
may not assign all or any part of its Interest. A Member may assign
all, but not part, of its Interest to a party approved by the Board of
Trustees (hereinafter referred to as a "Permitted Transferee"). A
Permitted Transferee shall become a substituted Member automatically
upon an assignment that complies with this Section 11.
12. Additional Members. No additional Persons may be admitted as
Members in the LLC, except upon an assignment by the Member of its
Interest, upon the terms and conditions set forth in Section 11 hereof.
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13. Dissolution. The LLC shall dissolve, and its affairs shall be
wound up, upon the earliest to occur of (a) the decision of the Member,
or (b) an event of dissolution of the LLC under the Act; provided,
however, that ninety (90) days following any event terminating the
continued membership of the Member, if the Personal Representative (as
defined in the Act) of the Member agrees in writing to continue the LLC
and to admit itself or some other Person as a member of the Company
effective as of the date of the occurrence of the event that terminated
the continued membership of the Member, then the LLC shall not be
dissolved and its affairs shall not be wound up.
14. Distributions upon Dissolution. Upon the occurrence of an
event set forth in Section 13 hereof, the Member shall be entitled to
receive, after paying or making reasonable provision for all of the
LLC's creditors to the extent required by Section 18-804 of the Act, the
remaining funds of the LLC.
15. Limited Liability. No Member or Trustee shall have any
liability for the obligations of the LLC except to the extent required
by the Act.
16. Amendment. This Agreement may be amended only in a writing
signed by the Member.
17. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware, excluding any
conflicts of laws rule or principle that might refer the governance or
construction of this Agreement to the law of another jurisdiction.
18. Severability. Except as otherwise provided in the succeeding
sentence, every term and provision of this Agreement is intended to be
severable, and if any term or provision of this Agreement is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall
not affect the legality or validity of the remainder of this Agreement.
The preceding sentence shall be of no force or effect if the consequence
of enforcing the remainder of this Agreement without such illegal or
invalid term or provision would be to cause any party to lose the
benefit of its economic bargain.
19. Consent to Jurisdiction Provision. The Member hereby (i)
irrevocably submits to the non-exclusive jurisdiction of any Delaware
State court or Federal court sitting in Wilmington, Delaware in any
action arising out of this Agreement, and (ii) consents to the service
of process by mail. Nothing herein shall affect the right of any party
to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
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In Witness Whereof, the undersigned has caused this Agreement of Limited
Liability Company to be executed as of the ____ day of April.
By: ______________________
Name: Xxxxx X. Xxxxx
Title: Sole Member
Consented and Agreed:
___________________________
Xxxxx X. Xxxxx, Trustee
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