JNLNY VARIABLE FUND II LLC
OPERATING AGREEMENT
ARTICLE I
GENERAL
Section 1. NAME. The name of this limited liability company shall be
JNLNY Variable Fund II LLC (the "Fund"). This limited liability company is
established and maintained under the laws of the State of Delaware.
Section 2. OFFICE. The principal office of the Fund shall be at 000
Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx. The Fund also shall have
offices at such other locations as the Board of Managers of the Fund, from time
to time, may determine.
Section 3. PURPOSES. The Fund is a no-load mutual fund consisting of
one or more separate investment portfolios as the Board of Managers of the Fund,
from time to time, may determine (each "a Series", collectively "the Series").
ARTICLE II
BOARD OF MANAGERS
Section 1. MANAGEMENT OF THE FUND. The Board shall have power to
conduct the business of the Fund and carry on the Fund's operations in any and
all of its branches and maintain offices both within and without the State of
Delaware, and in any and all other States of the United States of America, in
any and all commonwealths, territories, dependencies, colonies, or possessions
of the United States of America, and in any foreign jurisdiction, and to do all
such other things and execute all such instruments as the Board deems necessary,
proper, or desirable in order to promote the interests of the Fund although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Fund made by the Board in good faith shall be conclusive.
The powers of the Board may be exercised without order of or resort to any
court.
Section 2. POWERS. The Board shall have the following duties,
responsibilities, and power:
a. To select and approve annually an independent public
accountant.
b. To authorize and approve agreements providing for investment
management and advisory services, and related matters, and to
approve the continuance of such an agreement.
c. To authorize and approve agreements providing for sales and
administrative services, and related matters, and to approve
the continuance of such an agreement.
d. To authorize and approve agreements providing for
administrative services for a Series, and related matters, and
to approve the continuance of such an agreement.
e. To authorize and approve agreements providing for custodian
services, and related matters, and to approve the continuance
of such an agreement.
f. To authorize and approve agreements providing for accounting
services for a Series, and related matters, and to approve the
continuance of such an agreement.
g. To authorize and approve agreements providing for underwriting
services, and related matters, and to approve the continuance
of such an agreement.
h. To authorize and approve any and all other material agreements
or contracts pertaining to the operation of the Fund,
including, but not limited to, fidelity bond premium
allocation agreements and joint account agreements to permit
the Series to deposit their daily uninvested cash balances
into a single joint account to be used in order to enter into
joint repurchase agreements, and to approve the continuance of
such agreements or contracts.
i. To recommend from time to time any changes deemed appropriate
in the fundamental investment objective or fundamental
investment policies, practices, or limitations of the Fund or
any Series of the Fund, and to make such changes in those
investment policies, practices, and limitations of the Fund or
any Series not requiring approval by the interest holders as
the Board deems appropriate.
j. To supervise the investment of the assets of the Fund and any
Series in accordance with the investment objectives, policies,
practices, and limitations of the Fund and Series, and to
review periodically the investment portfolios of the Fund and
the Series to ascertain that these investment portfolios are
being managed in accordance with the investment objectives,
policies, practices, and limitations of the Fund and the
Series, as appropriate, and the interests of the interest
holders, and to take such corrective action as may be
necessary.
k. To enter into such other agreements and to take any and all
actions necessary or proper in connection with the operation
and management of the Fund and the Series and the assets
thereof.
l. To delegate such authority as the Board considers desirable to
any officers of the Fund and to any investment adviser,
manager, administrator, custodian, underwriter, or other agent
or independent contractor.
m. To create and establish, and to change in any manner, separate
and distinct Series with separately defined investment
objectives and policies and distinct investment purposes, and
to fix the preferences, voting powers, rights, and privileges
of these Series, in accordance with the provisions of the
Investment Company Act of 1940, as amended (the "1940 Act"),
and other federal securities laws, and to establish classes of
such Series having relative rights, powers, and duties as the
Board may provide consistent with applicable law.
n. In general, to carry on any other business in connection with
or incidental to any of the foregoing powers, to do everything
necessary, suitable, or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of
any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing
incidental or appurtenant to or growing out of or connected
with the aforesaid business or purposes, objects or powers.
Any action by one or more of the members of the Board in their capacity
as such hereunder shall be deemed an action on behalf of the Fund or the
applicable Series, and not an action in an individual capacity.
Section 3. NUMBER AND TENURE. The initial Board shall consist of Xxxxxx
X. Xxxxxxx. The number of members of the Board which thereafter shall constitute
the entire Board may be increased or decreased by a vote of a majority of the
entire Board from time to time; provided, that this number shall not be less
than three or more than nine. Each member of the Board shall hold office until
his or her successor is elected and qualified or until his or her earlier death,
resignation, or removal. Members of the Board need not be interest holders.
Section 4. VACANCIES. Vacancies in the Board for any cause, including
an increase in the authorized number of members of the Board, may be filled by a
majority of the members of the Board then in office, subject to any requirements
under the 1940 Act or other applicable law.
Section 5. PLACE OF MEETINGS. Meetings of the Board may be held at any
place within or without the State of Illinois, or as the Board may determine.
Section 6. REGULAR MEETINGS. Regular meetings of the Board shall be
held at any time and place fixed by the Board. Notice of a meeting shall be
given by mail, personal delivery, telephone, telefax, telegram, or other means
at any time preceding the meeting. Notice of a meeting of the Board may be
waived before or after any meeting by signed written waiver. Neither the
business to be transacted at, nor the purpose of, any meeting of the Board need
be stated in the notice or waiver of notice of such meeting, and no notice need
be given of action proposed to be taken by written consent. The attendance of a
member at a meeting shall constitute a waiver of notice of such meeting, except
where a member attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened.
Section 7. SPECIAL MEETINGS. Special meetings of the Board may be
called at any time by one or more members of the Board.
Section 8. QUORUM. A majority of the total number of members of the
Board shall constitute a quorum for the transaction of business, provided that a
quorum shall in no case be less than three members. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting until a quorum shall have been obtained. Except as otherwise
provided by law, or any contract or agreement to which the Fund is a party, the
act of a majority of the members of the Board present at any meeting at which
there is a quorum shall be the act of the Board.
Section 9. COMMITTEES. The Board may, by resolution, designate an
executive committee and other committees composed of two or more members, and
the members thereof, to the extent permitted by law, and each subcommittee shall
have the powers, authority, and duties specified in the resolution creating the
same and permitted by law. Each committee may make rules for the notice and
conduct of its meetings and the keeping of the records thereof. The term of any
member of any committee shall be fixed by the Board.
Section 10. COMPENSATION OF MANAGERS. The Board may authorize
reasonable compensation to members for their services as members of the Board
and as members of the committees of the Board and may authorize the
reimbursement of reasonable expenses incurred by members in connection with
rendering those services.
Section 11. RESIGNATIONS. Any member of the Board may resign his or her
membership at any time by mailing or delivering his or her resignation in
writing to the Chairman of the Board or to a meeting of the Board. No member of
the board who resigns shall have any right to compensation for any period
following his or her resignation. Any resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof.
Section 12. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all the members of the Board or committee thereof, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board or committee thereof.
Section 13. ACTION BY THE BOARD. Any meeting of the Board conducted by
telephone shall be deemed to take place at the principal office of the Fund or
any other place, as determined by the Board. Subject to the requirements of the
1940 Act, the Board by majority vote may delegate to any one or more of the
Board's members the authority of the Board to approve particular matters or take
particular actions on behalf of the Fund. Written consents or waivers of the
Board may be executed in one or more counterparts. Execution of a written
consent or wavier and delivery thereof to the Fund may be accomplished by
telefax.
Section 13. LIMITATION OF LIABILITY. The members of the Board shall not
be responsible or liable in any event for any neglect or wrongdoing of any
officer, agent, employee, adviser or principal underwriter of the Fund, nor
shall any member be responsible for the act or omission of any other member, but
nothing herein contained shall protect any member against any liability to which
he or she 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 or her office.
Every note, bond, contract, instrument, certificate, share or
undertaking and every other act or thing whatsoever executed or done by on
behalf of the Fund or the Board or any of them in connection with the Fund shall
be conclusively deemed to have been executed or done only in or with respect to
their or his or her capacity as members or a member, and such members or member
shall not be personally liable thereon.
ARTICLE III
OFFICERS
Section 1. OFFICERS. The officers of the Fund shall consist of a
president, a secretary, a treasurer, and such other officers or assistant
officers, including vice-presidents, as may be elected by the Board. Any two or
more of the offices may be held by the same person, except that the same person
may not be both president and secretary. The Board may designate a
vice-president as an executive vice-president and may designate the order in
which the other vice-presidents may act. The Board shall appoint and terminate
such officers as the Board shall consider appropriate.
Section 2. ELECTION AND TENURE. At the initial organizational meeting
and at least once a year thereafter, the Board shall elect the President,
Secretary, Treasurer, and other such officers as the Board shall deem necessary
or appropriate in order to carry out the business of the Fund. Each officer
shall hold the office until his or her successors have been duly elected and
qualified.
Section 3. PRESIDENT AND VICE-PRESIDENTS. The President shall be the
chief executive officer of the Fund and, subject to the control of the Board,
shall have general supervision, direction, and control of the business of the
Fund and shall exercise such general powers of management as are usually vested
in the office of President of a corporation or a business trust. The President
shall preside at all meetings of the Board, and, in the absence of the
President, the next-highest ranking officer shall preside or such other person
designated by the members. Subject to the direction of the Board, the President
shall have power in the name and of behalf of the Fund to execute any and all
loan documents, contracts, agreements, deeds, mortgages, applications for
Commission orders, and other instruments in writing, and to employ and discharge
employees and agents of the Fund. The President shall have such further
authorities and duties as the Board shall from time to time determine. In the
absence or disability of the President, the Vice-Presidents in order of their
rank as fixed by the Board or, if more than one and not ranked, the
Vice-Presidents designated by the Board, or, if not so designated, designated by
the President, shall perform all the duties of the President, and when so acting
shall have all of the powers of and be subject to all of the restrictions upon
the President. Subject to the direction of the name and on behalf of the Fund to
execute any and all loan documents, contracts, agreements, deeds, mortgages, and
other instruments in writing, and, in addition, shall have such other duties and
powers as shall be designated from time to time by the Board or by the
President.
Section 4. SECRETARY. The Board may select a Secretary and an Assistant
Secretary who need not be members of the Board. The Secretary and the Assistant
Secretary shall have the power to certify the minutes of the proceedings of the
Board and portions thereof and shall perform such duties and have such other
powers as these Rules and Regulations or the Board shall designate from time to
time. In the absence of the Secretary and Assistant Secretary, an appointee of
the Board shall perform such duties and have such powers.
Section 5. TREASURER. Except as otherwise directed by the Board, the
Treasurer shall have the general supervision of the monies, funds, securities,
notes receivable, and other valuable papers and documents of the Fund, and shall
have and exercise under the supervision of the Board and of the President all
powers and duties incident to his office. The Treasurer may endorse for deposit
or collection all notes, checks, and other instruments payable to the Fund or to
its order. The Treasurer shall deposit all funds of the Fund in such
depositories as the Board shall designate. The Treasurer shall be responsible
for such disbursement of the funds of the Fund as may be ordered by the Board or
the President. The Treasurer shall keep accurate separate account of the books
of the Fund's transactions, which shall be the property of the Fund and,
together with all other property in his possession, shall be subject at all
times to the inspection and control of the Board. Unless the Board shall
otherwise determine, the Treasurer shall be the principal accounting officer of
the Fund and shall also be the principal financial officer of the Fund. The
Treasurer shall have such other duties and authorities as the Board shall from
time to time determine. Notwithstanding anything to the contrary herein
contained, the Board may authorize any adviser, administrator, manager, or agent
to maintain bank accounts and deposit and disburse funds of the Fund or any
Series thereof.
Section 6. VACANCIES AND REMOVAL. The Board may fill any vacancy which
may occur in any office. Officers shall hold office at the pleasure of the Board
and any officer may be removed from office at any time with or without cause by
the vote of a majority of the entire Board whenever, in the judgment of the
Board, the best interests of the Fund will be served thereby.
Section 7. RESIGNATIONS. Any officer may resign his office at any time
by mailing or delivering his or her resignation in writing to a meeting of the
Board. No officer of the Fund who resigns shall have any right to compensation
for any period following his or her resignation. Any resignation shall take
effect at the time specified therein or, if the time be not specified, upon
receipt thereof.
ARTICLE IV
INDEMNIFICATION
Section 1. MEMBERS OF THE BOARD, OFFICERS, ETC. The Fund shall
indemnify each member of its Board and each of its officers (including persons
who serve at the Fund's request as directors, officers or trustees of another
organization in which the Fund has any interest as a shareholder, creditor or
otherwise) (hereinafter referred to as a "Covered Person") against all
liabilities and expenses, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees reasonably incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil, criminal,
administrative or investigative, and any appeal therefrom, before any court or
adminstrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such person may be or
may have been threatened, while in office or thereafter, by reason of being or
having been such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Fund or its Interest holders to which
such Covered Person would otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office.
Expenses, including counsel fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of judgments, in compromise or as
fines or penalties), may be paid from time to time by the Fund in advance of the
final disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so paid to
the Fund if it is ultimately determined that indemnification of such expenses is
not authorized under this Article, provided that (a) such Covered Person shall
provide security for his undertaking, (b) the Fund shall be insured against
losses arising by reason of such Covered Person's failure to fulfill his
undertaking or (c) a majority of the members of the Board who are disinterested
persons and who are not Interested Persons (provided that a majority of such
members of the Board then in office act on the matter), or independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (but not a full trial-type inquiry), that there is reason to
believe such Covered Person ultimately will be entitled to indemnification.
Section 2. COMPROMISE PAYMENT. As to any matter disposed of (whether by
a compromise payment, pursuant to a consent decree or otherwise) without an
adjudication in a decision on the merits by a court, or by any other body before
which the proceeding was brought, that such Covered Person is liable to the Fund
or holders of Fund interests by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office, indemnification shall be provided if (a) approved as in
the best interest of the Fund, after notice that it involves such
indemnification, by at least a majority of the members of the Board who are
disinterested persons and are not Interested Persons (provided that a majority
of such members of the Board then in office act on the matter), upon a
determination, based upon a review of readily available facts (but not a full
trial-type inquiry) that such Covered Person is not liable to the Fund or
holders of Fund interests by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office, or (b) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (but
not a full-trial type inquiry) to the effect that such indemnification would not
protect such Covered Person against any liability to the Fund to which such
Covered Person 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.
Any approval pursuant to this Section shall not prevent the recovery
from any Covered Person of any amount paid to such Covered Person in accordance
with this Section as jurisdiction to have been liable to the Fund or its
Interest holders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Section 3. INDEMNIFICATION NOT EXCLUSIVE; DEFINITIONS. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which any such Covered Person may be entitled. As used in this
Article, the term "Covered Person" shall include such person's heirs, executors
and administrators, and a "disinterested person" is a person against whom none
of the actions, suits or other proceedings in question or another action, suit
or other proceeding on the same or similar grounds is then or has been pending.
Nothing contained in this Article shall affect any rights to indemnification to
which personnel of the Fund, other than members of the Board and officers, and
other persons may be entitled by contract or otherwise under law, not the power
of the Fund to purchase and maintain liability insurance on behalf of such
persons.
Section 4. INTEREST HOLDERS. In case any holder of Fund interests or
former holder of Fund interests shall be held to be personally liable solely by
reason of his or her being or having been a holder of Fund interests and not
because of his or her acts or omissions or for some other reason, the holder of
Fund interests or former holder of Fund interests (or his or her heirs,
executors, administrators or other legal representative or, in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified against all loss and expense
arising from such liability, but only out of the assets of the particular series
of which he or she is or was a holder.
Section 5. TRUSTEES, INTEREST HOLDERS, ETC. NOT PERSONALLY LIABLE;
NOTICE. All persons extending credit to, contracting with or having any claim
against the Fund or a particular series shall look only to the assets of the
Fund or the assets of that particular Series for payment under such credit,
contract or claim; and neither the holder of Fund interests nor the members of
the Board, nor any of the Fund's officers, employees or agents, whether past,
present or future, shall be personally liable therefor. Nothing in this
Operating Agreement shall protect any members of the Board against any liability
to which such members of the Board would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of member of the Board.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the members of the Board or by any officers or officer shall recite
that the same was executed or made by or on behalf of the Fund or by them as a
member of the Board or members of the Board or as officers or officer and not
individually and that the obligations of such instrument are not binding upon
any of them or the holders of Fund interests individually but are binding only
upon the assets and property of the Fund, and may contain such further recital
as he or she or they may deem appropriate, but the omission thereof shall not
operate to bind any members of the Board or member of the Board or officers or
officer or holder or holders of Fund interests individually.
Section 6. GOOD FAITH ACTION BY MEMBERS OF THE BOARD, EXPERT ADVICE, NO
BOND OR SURETY. The exercise by the members of the Board of their powers and
discretions hereunder shall be binding upon everyone interested. A member of the
Board shall be liable for his or her own willful misfeasance, bad faith, gross
negligence of reckless disregard of the duties involved in the conduct of the
office of member of the Board, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. The members of the Board may take
advice of counsel or other experts with respect to the meaning and operation of
this Operating Agreement, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice.
The members of the Board shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 7. LIABILITY OF THIRD PERSONS DEALING WITH MEMBERS OF THE
BOARD. No person dealing with the members of the Board shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by the
members of the Board or to see to the application of any payments made or
property transferred to the Fund or upon its order.
ARTICLE V
CUSTODY OF ASSETS
Securities comprising the Fund's portfolios and cash representing the
proceeds from sales of portfolio securities and of payment of principal and
interest upon portfolio securities shall be held by a custodian or trustee which
shall be a bank or trust company having the qualifications prescribed in the
1940 Act. The Fund shall, upon the resignation or inability to serve of the
custodian or trustee, (1) use its best efforts to obtain a successor custodian
or trustee, and (2) require that the cash and securities owned by the Fund be
delivered to the successor custodian or trustee.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Fund shall end on such date as the members of
the Board from time to time shall determine.
ARTICLE VII
AMENDMENTS
Except as otherwise provided by law, the Operating Agreement of the
Fund may be amended or repealed by the Board.
The provisions of this Operating Agreement are intended to satisfy the
requirements of the 1940 Act. In the event that federal law should be amended or
rules, regulations, rulings, or exemptions thereunder should be adopted, with
the result that any or all of the provisions of the Operating Agreement shall
not be required by federal law, such provisions of the Operating Agreement may
be amended or repealed by the Board of the Fund or by any committee thereof so
authorized by such Board.
Adopted: February 11, 1999
