Exhibit (b) under Form N-1A
Exhibit 3(ii) under Item 601/Reg. S-K
BY-LAWS
of
FEDERATED CORE TRUST II, L.P.
A Delaware Limited Partnership
(Effective January ___, 2001)
(iii)
FEDERATED CORE TRUST II, L.P.
BY-LAWS
TABLE OF CONTENTS
Page
ARTICLE I OFFICES
Section 1. Principal Office..........................................1
Section 2. Other Offices.............................................1
ARTICLE II MEETINGS OF INVESTORS
Section 1. Place of Meetings.........................................1
Section 2. Call of Meeting...........................................1
Section 3. Notice of Investors' Meeting..............................2
Section 4. Manner of Giving Notice; Affidavit of Notice..............2
Section 5. Adjourned Meeting; Notice.................................2
Section 6. Voting....................................................3
Section 7. Quorum....................................................3
Section 8. Waiver of Notice by Consent of Absent Investors...........4
Section 9. Proxies...................................................4
Section 10. Investor Action by Written Consent........................5
Section 11. Record Dates..............................................5
Section 12. Inspector of Election.....................................6
ARTICLE III DIRECTORS
Section 1. Number, Election and Tenure...............................7
Section 2. Powers....................................................8
Section 3. Vacancies.................................................8
Section 4. Place of Meetings and Meetings by Telephone...............8
Section 5. Regular Meetings..........................................8
Section 6. Special Meetings..........................................9
Section 7. Quorum....................................................9
Section 8. Waiver of Notice..........................................9
Section 9. Adjournment..............................................10
Section 10. Notice of Adjournment....................................10
Section 11. Fees and Compensation of Directors.......................10
ARTICLE IV POWERS AND DUTIES OF THE EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees of Directors..............10
Section 2. Executive Committee to Report to Directors...............11
Section 3. Procedure of Executive Committee.........................11
Section 4. Powers of Executive Committee............................11
Section 5. Compensation.............................................11
Section 6. Meetings and Action of Committees........................11
ARTICLE V OFFICERS AND THEIR ELECTION
Section 1. Officers.................................................12
Section 2. Election of Officers.....................................12
Section 3. Subordinate Officers.....................................13
Section 4. Removal and Resignation of Officers......................13
Section 5. Vacancies in Offices.....................................13
Section 6. Chairman of the Board of Directors ("Chairman")..........13
Section 7. President................................................14
Section 8. Vice Presidents..........................................14
Section 9. Secretary................................................14
Section 10. Treasurer................................................15
Section 11. Salaries.................................................16
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS
Section 1. Agents, Proceedings and Expenses.........................16
Section 2. Actions Other than by Partnership........................16
Section 3. Actions by Partnership...................................16
Section 4. Exclusion of Indemnification.............................17
Section 5. Successful Defense by Agent..............................17
Section 6. Required Approval........................................17
Section 7. Advancement of Expenses..................................18
Section 8. Other Contractual Rights; Indemnification Not Exclusive..18
Section 9. Limitations..............................................18
Section 10. Insurance................................................19
Section 11. Fiduciaries of Employee Benefit Plan.....................19
ARTICLE VII BOOKS AND RECORDS
Section 1. Maintenance and Inspection of Interest Register..........19
Section 2. Maintenance of By-Laws...................................19
Section 3. Maintenance and Inspection of Records....................19
Section 4. Inspection by Directors..................................20
ARTICLE VIII DIVIDENDS
Section 1. Declaration of Dividends.................................20
Section 2. Reserves.................................................20
ARTICLE IX GENERAL MATTERS
Section 1. Checks, Drafts, Evidence of Indebtedness.................20
Section 2. Contracts and Instruments; How Executed..................21
Section 3. Endorsements, Assignments and Transfer of Securities.....21
Section 4. Evidence of Authority....................................21
Section 5. Representation of Shares of Other Entities Held by the
Partnership..............................................21
Section 6. Equitable Interest Not Recognized........................21
Section 7. Transfer Agent and Registrar; Regulations................22
Section 8. Fiscal Year..............................................22
ARTICLE X AMENDMENTS...............................................22
ARTICLE XI REPORT TO INVESTORS......................................22
ARTICLE XII WAIVERS OF NOTICE........................................22
Doc. #368670 v.05
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ARTICLE I
OFFICES
Section 1...PRINCIPAL OFFICE. The principal executive office of
Federated Core Trust II, L.P. (the "Partnership") shall be 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx. The Board of Directors (the "Board") of the
Partnership may, from time to time, change the location of the principal
executive office of the Partnership to any place within or outside the State
of Delaware.
Section 2...OTHER OFFICES. The Board may at any time establish branch
or subordinate offices at any place or places where the Partnership intends
to do business.
ARTICLE II
MEETINGS OF INVESTORS
Section 1...PLACE OF MEETINGS. Meetings of Investors of the Partnership
or a particular Series or class shall be held at any place within or outside
the State of Delaware designated by the Board. In the absence of any such
designation by the Board, Investors' meetings shall be held at the principal
executive office of the Partnership. For purposes of these By-Laws, the term
"Investor" shall mean a Person who is admitted to the Partnership as a
limited partner in accordance with the provisions of the Agreement of Limited
Partnership, as amended and restated from time to time (the "Partnership
Agreement") of the Partnership. Unless otherwise specified in these By-Laws,
capitalized terms used in these By-Laws shall have the meanings assigned to
them in the Partnership Agreement.
Section 2...CALL OF MEETING. A meeting of Investors of the Partnership
or of a particular Series shall be called by the Secretary whenever ordered
by the Board, by the chairman of the Board of Directors, or when requested in
writing by the holder or holders of at least one-tenth of the outstanding
Interests of the Partnership or of the relevant Series, entitled to vote. If
the Secretary, when so ordered or requested, refuses or neglects for more
than two days to call such special meeting, the Directors, chairman of the
Board of Directors or the Investors so requesting may, in the name of the
Secretary, call the meeting by giving notice thereof in the manner required
when notice is given by the Secretary. A meeting of Investors may be called
for the purpose of electing Directors as provided in these By-Laws or for the
purpose of taking action upon any other matter deemed by the Board to be
necessary or desirable. If the Partnership is required under the Investment
Company Act of 1940, as amended (the "1940 Act"), to hold an Investors'
meeting to elect Directors, the meeting shall be deemed an "annual meeting"
for that year for purposes of the 1940 Act.
Section 3...NOTICE OF INVESTORS' MEETING. All notices of meetings of
Investors shall be sent or otherwise given in accordance with Section 4 of
this Article II at least seven (7) business days before the date of the
meeting. The notice shall specify (i) the place, date and hour of the
meeting, and (ii) the general nature of the business to be transacted. The
notice of any meeting at which Directors are to be elected also shall include
the name of any nominee or nominees who at the time of the notice are
intended to be presented for election. Except with respect to adjournments as
provided herein, no business shall be transacted at such meeting other than
that specified in the notice.
Section 4...MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of Investors shall be given either personally or by first-class mail,
courier, telegraphic, facsimile or electronic mail, or other written
communication, charges prepaid, addressed to the Investor at the address of
that Investor appearing on the books of the Partnership or its transfer agent
or given by the Investor to the Partnership for the purpose of notice. If no
such address appears on the Partnership's books or is given, notice shall be
deemed to have been given if sent to that Investor by first-class mail,
courier, telegraphic, facsimile or electronic mail, or other written
communication to the Partnership's principal executive office. Notice shall
be deemed to have been given at the time when delivered personally, deposited
in the mail or with a courier, or sent by telegram, facsimile, electronic
mail or other means of written communication.
If any notice addressed to an Investor at the address of that Investor
appearing on the books of the Partnership is returned to the Partnership
marked to indicate that the notice to the Investor cannot be delivered at
that address, all future notices or reports shall be deemed to have been duly
given without further mailing, or substantial equivalent thereof, if such
notices shall be available to the Investor on written demand of the Investor
at the principal executive office of the Partnership for a period of one year
from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
Investors' meeting shall be executed by the Secretary, Assistant Secretary or
any transfer agent of the Partnership giving the notice and shall be filed
and maintained in the records of the Partnership. Such affidavit shall, in
the absence of fraud, be prima facie evidence of the facts stated therein.
Section 5...ADJOURNED MEETING; NOTICE. Any Investors' meeting, whether
or not a quorum is present, may be adjourned from time to time (and at any
time during the course of the meeting) by a majority of the votes cast by
those Investors present in person or by proxy, or by the chairperson of the
meeting. Any adjournment may be with respect to one or more proposals, but
not necessarily all proposals, to be voted or acted upon at such meeting and
any adjournment will not delay or otherwise affect the effectiveness and
validity of a vote or other action taken at an Investors' meeting prior to
adjournment.
When any Investors' meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting at which the adjournment is
taken, unless a new record date of the adjourned meeting is fixed or unless
the adjournment is for more than one hundred eighty (180) days from the
record date set for the original Investors' meeting, in which case the Board
shall set a new record date. If notice of any such adjourned meeting is
required pursuant to the preceding sentence, it shall be given to each
Investor of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 3 and 4 of this Article II. At any adjourned
meeting, the Partnership may transact any business that might have been
transacted at the original meeting.
Section 6...VOTING. The Investors entitled to vote at any meeting of
Investors shall be determined in accordance with the provisions of these
By-laws, as in effect at such time. The Investors' vote may be by voice vote
or by ballot; provided, however, that any election of Directors must be by
ballot if demanded by any Investor before the voting has begun. On any matter
other than elections of Directors, any Investor may vote part of the
Investors' Interests in favor of the proposal and refrain from voting the
remaining Interests or vote them against the proposal, but if the Investor
fails to specify the number of Interests which the Investor is voting
affirmatively, it will be conclusively presumed that the Investor's approving
vote is with respect to the total Interests that the Investor is entitled to
vote on such proposal.
Abstentions and broker non-votes will be included for purposes of
determining whether a quorum is present at an Investors' meeting.
Abstentions and broker non-votes will be treated as votes present at an
Investors' meeting, but will not be treated as votes cast. Abstentions and
broker non-votes, therefore, will have no effect on proposals which require a
plurality or majority of votes cast for approval, but will have the same
effect as a vote "against" on proposals requiring a majority of outstanding
voting securities for approval.
Section 7...QUORUM. Except when a larger quorum is required by
applicable law, the Partnership Agreement or these By-Laws, thirty-three and
one-third percent (33-1/3%) of the Interests present in person or represented
by proxy and entitled to vote at an Investors' meeting shall constitute a
quorum at such meeting. When a separate vote by one or more Series or
classes is required, thirty-three and one-third percent (33-1/3%) of the
Interests of each such Series or class present in person or represented by
proxy and entitled to vote shall constitute a quorum at an Investors' meeting
of such Series or class.
Section 8...WAIVER OF NOTICE BY CONSENT OF ABSENT INVESTORS. The
transactions of a meeting of Investors, however called and noticed and
wherever held, shall be valid as though transacted at a meeting duly held
after regular call and notice if a quorum is present either in person or by
proxy. Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting with respect to that person, except when the person
objects at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened and except that such
attendance is not a waiver of any right to object to the consideration of
matters not included in the notice of the meeting if that objection is
expressly made at the beginning of the meeting. Whenever notice of a meeting
is required to be given to an Investor under the Partnership Agreement or
these By-Laws, a written waiver thereof, executed before or after the meeting
by such Investor or his or her attorney thereunto authorized and filed with
the records of the meeting, shall be deemed equivalent to such notice.
Section 9...PROXIES. Every Investor entitled to vote for Directors or
on any other matter shall have the right to do so either in person or by one
or more agents authorized by a written proxy signed by the Investor and filed
with and verified by the Secretary of the Partnership or the inspector of
election; provided, that an alternative to the execution of a written proxy
may be permitted as provided in the second paragraph of this Section 9.
Every proxy shall be dated, but need not be witnessed or acknowledged. A
proxy shall be deemed signed if the Investor's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the Investor or the Investor's attorney-in-fact. A validly
executed proxy that does not state that it is irrevocable shall continue in
full force and effect unless (i) revoked by the Investor executing it by a
written notice delivered to the Partnership prior to the exercise of the
proxy or by the Investor's execution of a subsequent proxy or attendance and
vote in person at the meeting; or (ii) written notice of the death or
incapacity of the Investor is received by the Partnership before the proxy's
vote is counted; provided, however, that no proxy shall be valid after the
expiration of six (6) months from the date of the proxy unless otherwise
provided in the proxy. The revocability of a proxy that states on its face
that it is irrevocable shall be governed by the provisions of the General
Corporation Law of the State of Delaware.
With respect to any Investors' meeting, the Board may act to permit the
Partnership to accept proxies by any electronic, telephonic, computerized,
telecommunications or other reasonable alternative to the execution of a
written instrument authorizing the proxy to act, provided the Investor's
authorization is received within six (6) months before the meeting. A proxy
with respect to Interests held in the name of two or more persons shall be
valid if executed by any co-owner or co-fiduciary, unless at or prior to
exercise of the proxy, the Secretary of the Partnership receives a specific
written notice to the contrary from any one of them. A proxy purporting to
be executed by or on behalf of an Investor shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest with the challenger. Unless otherwise specifically limited by
their terms, all proxies shall entitle the holders thereof to vote at any
adjournment of the Investors' meeting but shall not be valid after the final
adjournment of such meeting.
Section 10..INVESTOR ACTION BY WRITTEN CONSENT. Any action that may be
taken at any meeting of Investors may be taken without a meeting and without
prior notice, if a consent in writing, setting forth the action so taken, is
signed by the holders of Interests having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting
at which all Interests entitled to vote on that action were present and
voted. All such consents shall be filed with the Secretary of the Partnership
and shall be maintained in the Partnership's records. Any Investor giving a
written consent, the Investor's proxy holders, a personal representative of
the Investor or its respective proxy holder may revoke the consent by a
writing received by the Secretary of the Partnership before written consents
of the number of Interests required to authorize the proposed action have
been filed with the Secretary.
If the consents of all Investors entitled to vote have not been
solicited in writing, and if the written consent of all such Investors shall
not have been received, the Secretary shall give prompt notice of the action
taken without a meeting to such Investors. This notice shall be given in the
manner specified in these By-Laws.
Section 11..RECORD DATES. For purposes of determining the Investors
entitled to notice of any meeting, to vote at any meeting, or to give consent
to action without a meeting, the Board may fix in advance a record date that
shall not be more than one hundred eighty (180) days nor less than seven (7)
days before the date of any such meeting.
If the Board does not so fix a record date:
(a) The record date for determining Investors entitled to notice of
or to vote at a meeting of Investors shall be at the close of
business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business
on the business day which is five (5) business days next
preceding to the day on which the meeting is held.
(b) The record date for determining Investors entitled to give
consent to action in writing without a meeting, (i) when no prior
action by the Board has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the
Board has been taken, shall be at the close of business on the
day on which the Board adopts the resolution taking such prior
action or the seventy-fifth (75th) day before the date of such
other action, whichever is later.
For the purpose of determining the Investors of any Series or class who
are entitled to receive payment of any dividend or of any other distribution,
the Board may, from time to time, fix a date, which shall be before the date
for the payment of such dividend or such other distribution, as the record
date for determining the Investors of such Series or class having the right
to receive such dividend or distribution. Nothing in this Section shall be
construed as precluding the Board from setting different record dates for
different Series or classes.
Section 12..INSPECTOR OF ELECTION. Before any meeting of Investors, the
Board may appoint any person other than nominees for office to act as
inspector of election at the meeting or its adjournment. If no inspector of
election is so appointed, the chairperson of the meeting may, and on the
request of any Investor or an Investor's proxy shall, appoint an inspector of
election at the meeting. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairperson of the meeting may, and on
the request of any Investor or an Investor's proxy shall, appoint a person to
fill the vacancy.
The inspector shall:
(a) determine the number of Interests outstanding and the voting
power of each, the Interests represented at the meeting, the
existence of a quorum and the authenticity, validity and effect
of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result of voting or consents; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all Investors.
ARTICLE III
DIRECTORS
Section 1...NUMBER, ELECTION AND TENURE. The number of Directors
constituting the Board may be fixed from time to time by a written instrument
signed, or by resolution approved at a duly constituted meeting, by a
majority of the Board, provided, however, that the number of Directors shall
in no event be less than three (3) nor more than twenty (20). The Board, by
action of a majority of the then Directors at a duly constituted meeting, may
remove any Director with or without cause. The Investors may elect Directors
at any meeting of Investors called by the Board for that purpose. A meeting
of Investors for the purpose of electing one or more Directors may be called
by the Board or, to the extent provided by the 1940 Act and the rules and
regulations thereunder, by the Investors. Investors shall have the power to
remove a Director only to the extent provided by the 1940 Act and the rules
and regulations thereunder.
Each Director shall serve during the continued lifetime of the
Partnership (or as otherwise provided in the Partnership Agreement) until he
or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such
events, until the next meeting of Investors called for the purpose of
electing Directors and until the election and qualification of his or her
successor. Any Director may resign at any time by written instrument signed
by him or her and delivered to any officer of the Partnership or to a meeting
of the Board. The term of office of a Director shall not be affected by any
decrease in the number of Directors made by the Directors pursuant to the
authorization contained in this Section 1. Such resignation shall be
effective upon receipt unless specified to be effective at some later time.
Except to the extent expressly provided in a written agreement with the
Partnership, no Director who resigns or is removed shall have any right to
any compensation for any period following any such event or any right to
damages on account of such events or any actions taken in connection
therewith following his or her resignation or removal.
Section 2...POWERS. Subject to the applicable provisions of the
Partnership Agreement and these By-Laws relating to action required to be
approved by the Investors, the business and affairs of the Partnership shall
be managed and controlled by or under the direction of the Board, pursuant to
authority delegated to it by the General Partner under the Partnership
Agreement.
Section 3...VACANCIES. Vacancies in the Board may be filled by a
majority of the remaining Directors, though less than a quorum, or by a sole
remaining Director, unless the Board calls a meeting of Investors for the
purpose of filling such vacancies. Notwithstanding the above, whenever and
for so long as the Partnership is a participant in or otherwise has in effect
a plan under which the Partnership may be deemed to bear expenses of
distributing its Interests as that practice is described in Rule 12b-1 under
the 1940 Act, then the selection and nomination of the Directors who are not
"interested persons" of the Partnership, as that term is defined in the 1940
Act (such directors are referred to herein as "disinterested directors"),
shall be, and is, committed to the discretion of the disinterested directors
remaining in office. In the event of the death, resignation, removal,
declaration as bankrupt or incapacity of all of the then Directors, the
Partnership's investment adviser or advisers is or are, as the case may be,
empowered to appoint new Directors subject to the provisions of Section 16(a)
of the 1940 Act.
Section 4...PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Except as
otherwise provided herein or from time to time in the 1940 Act or in the
Partnership Agreement, all meetings of the Board may be held at any place
within or outside the State of Delaware that has been designated from time to
time by the Board, or as the person or persons requesting said meeting to be
called may designate, but any meeting may adjourn to any other place. In the
absence of such a designation, regular meetings shall be held at the
principal executive office of the Partnership. Any meeting, regular or
special, may be held by means of a conference telephone or similar
communications equipment, so long as all Directors participating in the
meeting can hear one another and can communicate with each other
simultaneously, and participation by such means shall constitute presence in
person at a meeting. Any action by the Directors may be taken without a
meeting if a written consent thereto is signed by all the Directors and filed
with the records of the Directors' meetings. Such consent shall be treated
as a vote of the Directors for all purposes. Written consents may be
executed in counterparts, which, when taken together, constitute a validly
executed consent of the Directors.
Section 5...REGULAR MEETINGS. Regular meetings of the Board may be held
without call or notice at such places and at such times as shall, from time
to time, be fixed by the Board, provided that any Director who is absent when
such determination is made shall be given notice of the determination. Such
regular meetings may be held without notice. When all the Directors shall be
present at any meeting, however called, or whenever held, or shall assent to
the holding of the meeting without notice, or after the meeting shall sign a
written assent thereto in the record of such meeting, the action of such
meeting shall be valid as if such meeting had been regularly held.
Section 6...SPECIAL MEETINGS. Special meetings of the Board, for any
purpose or purposes, shall be called at any time at the written request of
the chairman of the Board, the President, the Secretary or any Director. If
the Secretary of the Partnership, when so requested, refuses or fails for
more than twenty-four hours to call such meeting, the chairman, President, or
such Director may, in the name of the Secretary, call such meeting by giving
due notice in the manner required when notice is given by the Secretary.
Notice of the time and place of special meetings shall be given, at
least two (2) days before the special meeting, personally or by telephone to
each Director or sent by first-class mail, courier or telegram, charges
prepaid, or by facsimile or electronic mail, addressed to each Director at
that Director's address as it is shown on the records of the Partnership by
the Secretary or any Assistant Secretary of the Partnership. Any oral notice
given personally or by telephone may be communicated either to the Director
or to a person at the office of the Director who the person giving the notice
has reason to believe will promptly communicate it to the Director. The
notice need not specify the purpose of the meeting (unless otherwise required
by law) or the place if the meeting is to be held at the principal executive
office of the Partnership.
Section 7...QUORUM. A majority of the authorized number of Directors
shall constitute a quorum for the transaction of business, except to adjourn
as provided in Sections 9 and 10 of this Article III. Every act or decision
done or made by a majority of the Directors present at a meeting duly held at
which a quorum is present shall be regarded as the act of the Board, subject
to the provisions of the Partnership Agreement or applicable law. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of Directors if any action taken is approved
by at least a majority of the required quorum for that meeting.
Section 8...WAIVER OF NOTICE. Notice of any meeting need not be given
to any Director who, either before or after the meeting, signs a written
waiver of notice, a consent to holding the meeting, or an approval of the
minutes. The waiver of notice or consent need not specify the purpose of the
meeting. All such waivers, consents, and approvals shall be filed with the
records of the Partnership or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any Director who personally
attends the meeting without protesting before or at its commencement about
the lack of notice to that Director or the validity of said meeting.
Section 9...ADJOURNMENT. A majority of the Directors present, whether
or not constituting a quorum, may adjourn any matter at any meeting to
another time and place until a quorum is present.
Section 10..NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given.
Section 11..FEES AND COMPENSATION OF DIRECTORS. Directors and members
of committees may receive such compensation, if any, including a stated
salary, for their services and such reimbursement of expenses for attendance
at each meeting as may be fixed or determined by resolution of the Board.
This Section 11 shall not be construed to preclude any Director from serving
the Partnership in any other capacity, as an officer, agent, employee, or
otherwise, and receiving compensation for those services.
ARTICLE IV
POWERS AND DUTIES OF THE
EXECUTIVE AND OTHER COMMITTEES
Section 1...EXECUTIVE AND OTHER COMMITTEES OF DIRECTORS. The Board may
elect from its own number an Executive Committee to consist of not less than
two (2) members. The Executive Committee shall be elected by a resolution
passed by a vote of at least a majority of the Directors then in office. The
Board may also, by resolution adopted by a majority of the authorized number
of Directors, designate one or more other committees, each consisting of two
(2) or more Directors, to serve at the pleasure of the Board. The Board may
designate one or more Directors as alternate members of any other committee
who may replace any absent member at any meeting of the committee. Any other
committee, to the extent provided in the resolution of the Board, shall have
the authority of the Board, except with respect to:
(a) the approval of any action that under the Partnership Agreement
or applicable law also requires Investors' approval or requires
approval by a majority of the entire Board or certain members of
the Board;
(b) the filling of vacancies on the Board or in any committee;
(c) the fixing of compensation of the Directors for serving on the
Board or on any committee;
(d) the amendment or repeal of the Partnership Agreement or of these
By-Laws or the adoption of a new Partnership Agreement or new
By-Laws;
(e) the amendment or repeal of any resolution of the Board which, by
its express terms, is not so amendable or repealable; or
(f) the appointment of any other committees of the Board or the
members of these committees.
Section 2...EXECUTIVE COMMITTEE TO REPORT TO DIRECTORS. All actions by
the Executive Committee shall be reported to the Directors at their meeting
next succeeding such actions.
Section 3...PROCEDURE OF EXECUTIVE COMMITTEE. The Executive Committee
shall fix its own rules of procedure not inconsistent with these By-Laws or
with any directions of the Directors. It shall meet at such times and places
and upon such notice as shall be provided by such rules or by resolution of
the Directors. The presence of a majority shall constitute a quorum for the
transaction of business, and in every case an affirmative vote of a majority
of all the members of the Executive Committee present shall be necessary for
the taking of any action.
Section 4...POWERS OF EXECUTIVE COMMITTEE. During the intervals
between the meetings of the Directors, the Executive Committee, except as
limited by these By-Laws or by specific directions of the Directors, shall
possess and may exercise all the powers of the Directors in the management
and direction of the business and conduct of the affairs of the Partnership
in such manner as the Executive Committee shall deem to be in the best
interests of the Partnership. Notwithstanding the foregoing, the Executive
Committee shall not have the power to elect or remove Directors, increase or
decrease the number of Directors, elect or remove any officer, declare
allocations among Investors, issue Interests or recommend to Investors any
action requiring Investor approval.
Section 5...COMPENSATION. The members of any duly appointed committee
shall receive such compensation and/or fees as from time to time may be fixed
by the Directors.
Section 6...MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
any committee shall be governed by and held and taken in accordance with the
provisions of Article III of these By-Laws, with such changes in the context
thereof as are necessary to substitute the committee and its members for the
Board and its members, except that the time of regular meetings of any
committee may be determined either by the Board or by the committee. Special
meetings of any committee may also be called by resolution of the Board, and
notice of special meetings of any committee shall also be given to all
alternate members who shall have the right to attend all meetings of the
committee. Subject to Sections 3 and 4 of Article IV of these By-Laws, the
Board may adopt rules for the government of any committee not inconsistent
with the provisions of these By-Laws. Any action required or permitted to be
taken at any meeting of the Directors, the Executive Committee or any other
duly appointed committee may be taken without a meeting if consents in
writing setting forth such action are signed by all members of the Board or
such committee and such consents are filed with the records of the
Partnership. In the event of the death, removal, resignation or incapacity
of any Board or committee member prior to that Director signing such consent,
the remaining Board or committee members may re-constitute themselves as the
entire Board or committee until such time as the vacancy is filled in order
to fulfill the requirement that such consents be signed by all members of the
Board or committee.
ARTICLE V
OFFICERS AND THEIR ELECTION
Section 1...OFFICERS. The officers of the Partnership shall be a
President, a Secretary, and a Treasurer. The Partnership may also have, at
the discretion of the Board, a chairman of the Board of Directors (who must
be a Director), one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers or agents as may be appointed in
accordance with the provisions of Section 3 of this Article V. Any number of
offices may be held by the same person, except the offices of President and
Vice President may not be held by the same person concurrently. It shall not
be necessary for any Director or any officer of the Partnership to be a
holder of Interests in any Series or class of the Partnership.
Section 2...ELECTION OF OFFICERS. The officers of the Partnership
shall be elected annually by the Board. Each officer shall hold office for
one year and until the election and qualification of his successor, or until
earlier resignation or removal. The Chairman of the Board of Directors, if
there is one, shall be elected annually by and from the Directors, and shall
serve until a successor is so elected and qualified, or until earlier
resignation or removal.
Section 3...SUBORDINATE OFFICERS. A Vice President, the Secretary or
the Treasurer may appoint an Assistant Vice President, an Assistant Secretary
or an Assistant Treasurer, respectively, to serve until the next election of
officers.
Section 4...REMOVAL AND RESIGNATION OF OFFICERS. Any officer elected
by the Board of Directors or whose appointment has been ratified by the Board
of Directors may be removed with or without cause at any time by a majority
vote of all Directors. Any other employee of the Partnership may be removed
or dismissed at any time by the President.
Any officer may resign, at any time, by filing a written resignation
with the Board of Directors, the Chairman of the Board of Directors (if there
is one), with the President, or with the Secretary. Any such resignation
shall take effect at the date of the receipt of that notice or at any later
time specified in such notice. Unless otherwise specified in such notice,
the acceptance of such resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of
the Partnership under any contract to which the officer is a party.
Section 5...VACANCIES IN OFFICES. Any vacancy in any of the offices,
whether by resignation, removal or otherwise, may be filled for the unexpired
portion of the term by the President. A vacancy in the office of Assistant
Vice President may be filled by a Vice President; in the office of Assistant
Secretary by the Secretary; or in the office of Assistant Treasurer by the
Treasurer. Any appointment to fill any vacancy shall serve subject to
ratification by the Board of Directors at its next regular meeting.
Section 6...CHAIRMAN OF THE BOARD OF DIRECTORS ("CHAIRMAN"). The
Chairman, if there is a Chairman, shall preside at the meetings of Investors
and of the Board of Directors, and he shall exercise and perform such other
powers and duties as may be from time to time assigned to the Chairman by the
Board or prescribed by these By-Laws. He shall have general supervision over
the business of the Partnership and policies of the Partnership. He shall
employ and define the duties of all employees of the Partnership, shall have
power to discharge any such employees, shall exercise general supervision
over the affairs of the Partnership and shall perform such other duties as
may be assigned to him from time to time by the Directors. The Chairman
shall appoint a Director or officer to preside at such meetings in the
Chairman's absence. In the absence, resignation, disability or death of the
President, the Chairman shall exercise all the powers and perform all the
duties of the President until his or her return, such disability shall be
removed or a new President shall have been elected.
Section 7...PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman, the President shall be the chief
executive officer of the Partnership and shall, subject to the control of the
Board, have general supervision, direction and control of the business and
the officers of the Partnership. He shall counsel and advise the Chairman
and shall perform such other duties as may be assigned to him, from time to
time, by the Board, the Chairman or the Executive Committee. In the absence
of the Chairman, he shall preside at all meetings of Investors and at all
meetings of the Board. He shall have the general powers and duties of
management usually vested in the office of president of a corporation and
shall have such other powers and duties as may be prescribed by the Board or
these By-Laws, including: the power to appoint one or more Assistant
Secretaries or other junior officers, subject to ratification of such
appointments by the Board; the power to sign, in the name of and on behalf of
the Partnership, powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities or other property owned
by the Partnership; in the name of and on behalf of the Partnership, to take
all such action as the President may deem advisable in entering into
agreements to purchase securities or other property in the ordinary course of
business; and to sign representation letters in the course of buying
securities or other property.
Section 8...VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by
the Board, or if not ranked, a Vice President designated by the Board, shall
perform all the duties of the President and when so acting shall have all
powers of, and be subject to all the restrictions upon, the President. The
Vice Presidents shall have such other powers and perform such other duties
as, from time to time, may be prescribed for them respectively by the Board,
the Chairman, the President, the Executive Committee or these By-Laws. Each
Vice President shall be authorized to sign documents on behalf of the
Partnership. The Vice President shall have the power to sign, in the name of
and on behalf of the Partnership and subject to Article IX, Section 2, powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities or other property owned by the
Partnership, and may, in the name of and on behalf of the Partnership, take
all such action as the Vice President may deem advisable in entering into
agreements to purchase securities or other property in the ordinary course of
business, and to sign representation letters in the course of buying
securities or other property.
Section 9...SECRETARY. The Secretary shall keep, or cause to be kept at
the principal executive office of the Partnership, or such other place as the
Board may direct, a book of minutes of all meetings and actions of the Board,
any committees of the Board and all meetings of Investors, with the time and
place of holding, whether regular or special, and if special, how authorized,
the notice given, the names of those present at the Directors' meetings or
committee meetings, the number of Interests present or represented at
Investors' meetings, and the proceedings.
The Secretary shall be the custodian of the records of the
Partnership. The Secretary shall cause to be kept at the principal executive
office of the Partnership or at the office of the Partnership's transfer
agent or registrar, as determined by resolution of the Board, an Interest
register or a duplicate Interest register showing the names of all Investors
in each Series and class thereof and their addresses, and the number of
Interests of each Series held by each, and the Secretary shall make all
proper changes in such register, retaining and filing the Secretary's
authority for such entries.
The Secretary shall give or cause to be given notice of all meetings of
Investors and of the Board required by these By-Laws or by applicable law to
be given; shall see that the books, reports, statements, and all other
documents and records required by law are properly kept and filed; and in
general shall have such other powers and shall perform all duties incident to
the office of secretary and such other duties as may, from time to time, be
prescribed by the Board, the Chairman, the President, the Executive Committee
or by these By-Laws. The Secretary, and any Assistant Secretary appointed by
the Secretary pursuant to these By-Laws, shall be authorized to sign
documents on behalf of the Partnership.
Section 10..TREASURER. The Treasurer shall be the principal financial
and accounting officer of the Partnership and shall keep and maintain or
cause to be kept and maintained adequate and correct financial books and
records of accounts of the properties and business transactions of the
Partnership, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and Interests.
The Treasurer shall deposit all monies and securities in the name and
to the credit of the Partnership with such depositories as may be designated
by the Board. He shall disburse the funds of the Partnership as may be
ordered by the Board, shall render to the President and Directors, whenever
they request it, an account of all of his transactions as chief financial
officer and of the financial condition of the Partnership and shall have
other powers and perform such other duties as may be prescribed by the Board,
the Chairman, the President, the Executive Committee or these By-Laws. The
Treasurer shall be authorized to sign documents on behalf of the Partnership.
Section 11..SALARIES. The salaries of the officers shall be fixed from
time to time by the Board. No officer shall be prevented from receiving such
salary by reason of the fact that the officer is also a Director.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1...AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "agent" means any person who is or was a Director, officer, employee
or other agent of this Partnership, or is or was serving at the request of
the Partnership, as a trustee, director, officer, employee or other agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" include, without limitation, attorneys' fees
and any expenses of establishing a right to indemnification under this
Article.
Section 2...ACTIONS OTHER THAN BY PARTNERSHIP. The Partnership shall
indemnify any person who was or is a party or is threatened to be made a
party to any proceeding (other than an action by or in the right of the
Partnership) by reason of the fact that such person is or was an agent of the
Partnership, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding
if such person acted in good faith and in a manner that such person
reasonably believed to be in the best interests of the Partnership and, in
the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person did not
act in good faith or in a manner that the person reasonably believed to be in
the best interests of the Partnership or that the person had reasonable cause
to believe that the person's conduct was unlawful.
Section 3...ACTIONS BY PARTNERSHIP. The Partnership shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action by or in the right of the Partnership
to procure a judgment in its favor by reason of the fact that the person is
or was an agent of the Partnership, against expenses actually and reasonably
incurred by that person in connection with the defense or settlement of that
action if that person acted in good faith, in a manner that person believed
to be in the best interests of the Partnership.
Section 4...EXCLUSION OF INDEMNIFICATION. Notwithstanding any provision
to the contrary contained herein, there shall be no right to indemnification
for any liability to the Partnership or the Investors arising by reason of
willful misfeasance, bad faith, gross negligence, or the reckless disregard
of the duties involved in the conduct of the agent's office with the
Partnership.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a)...In respect of any claim, issue or matter as to which that person
shall have been adjudged to be liable in the performance of that person's
duty to the Partnership, unless and only to the extent that the court in
which that action was brought shall determine upon application that, in view
of all the circumstances of the case, that person was not liable by reason of
the disabling conduct set forth in the preceding paragraph and is fairly and
reasonably entitled to indemnity for the expenses which the court shall
determine; or
(b)...In respect of any claim, issue, or matter as to which that person
shall have been adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an
action taken in the person's official capacity; or
(c)...Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval, or of expenses
incurred in defending a threatened or pending action that is settled or
otherwise disposed of without court approval, unless the required approval
set forth in Section 6 of this Article VI is obtained.
Section 5...SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of
the Partnership has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 of this Article or in defense of
any claim, issue or matter therein, before the court or other body before
whom the proceeding was brought, the agent shall be indemnified against
expenses actually and reasonably incurred by the agent in connection
therewith, provided that the Board, including a majority of the Board who are
disinterested directors and not parties to such proceeding, also determines
that, based upon a review of the facts, the agent was not liable by reason of
the disabling conduct referred to in Section 4 of this Article.
Section 6...REQUIRED APPROVAL. Except as provided in Section 5 of this
Article, any indemnification under this Article shall be made by the
Partnership only if authorized in the specific case on a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Sections 2 or 3 of
this Article and is not prohibited from indemnification because of the
disabling conduct set forth in Section 4 of this Article, by:
(a) A majority vote of a quorum consisting of Directors who are not
parties to the proceeding and are disinterested directors; or
(b) A written opinion by an independent legal counsel.
Section 7...ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
proceeding (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties) may be advanced by the Partnership
before the final disposition of any action, suit or proceeding upon receipt
of an undertaking by or on behalf of the agent to repay the amount of the
advance, unless it shall be determined ultimately that the agent is entitled
to be indemnified as authorized in this Article, provided the agent provides
a security for his undertaking, the Partnership shall be insured against
losses arising by reason of such agent's failure to fulfill his undertaking,
or a majority of a quorum of the disinterested Directors who are not parties
to such proceeding, or an independent legal counsel in a written opinion,
shall determine that, based on a review of readily available facts (but not a
full trial-type inquiry), that there is reason to believe that said agent
ultimately will be entitled to indemnification.
Section 8...OTHER CONTRACTUAL RIGHTS; INDEMNIFICATION NOT EXCLUSIVE.
Nothing contained in this Article shall affect any rights to indemnification
to which persons thereof may be entitled by contract or otherwise under law,
nor the power of the Partnership to purchase and maintain liability insurance
on behalf of such persons. The right of indemnification hereby provided
shall not be exclusive of or effect any other rights to which any agent may
be entitled.
Section 9...LIMITATIONS. No indemnification or advance shall be made
under this Article, except as provided in Sections 5 or 6 hereof, in any
circumstances where it appears:
(a) That it would be inconsistent with a provision of the Partnership
Agreement, a resolution of the Investors, or an agreement that
prohibits or otherwise limits indemnification that was in effect
at the time of accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other
amounts were paid; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 10..INSURANCE. Upon and in the event of a determination by the
Board to purchase such insurance, the Partnership shall purchase and maintain
insurance on behalf of any agent of the Partnership against any liability
asserted against or incurred by the agent in such capacity or arising out of
the agent's status as such, but only to the extent that the Partnership would
have the power to indemnify the agent against that liability under the
provisions of this Article.
Section 11..FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. This Article does not
apply to any proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in that person's capacity as such, even
though that person may also be an agent of the Partnership as defined in
Section 1 of this Article. Nothing contained in this Article shall limit any
right to indemnification to which such a trustee, investment manager, or
other fiduciary may be entitled by contract or otherwise that shall be
enforceable to the extent permitted by applicable law other than this Article.
ARTICLE VII
BOOKS AND RECORDS
Section 1...MAINTENANCE AND INSPECTION OF INTEREST REGISTER. The
Partnership shall keep, at its principal executive office or at the office of
its transfer agent or registrar, or at such office or agency of the
Partnership as may, from time to time, be determined by the Secretary of the
Partnership, a record of its Investors, providing the names and addresses of
all Investors in each Series and class thereof and the number of Interests of
each Series held by each Investor.
Section 2...MAINTENANCE OF BY-LAWS. The Partnership shall keep, at its
principal executive office, the original or a copy of these By-Laws, as
amended from time to time.
Section 3...MAINTENANCE AND INSPECTION OF RECORDS. The accounting books
and records and minutes of proceedings of the Investors and the Board and any
committee or committees of the Board shall be kept at such place or places
designated by the Board or, in the absence of such designation, at the
principal executive office of the Partnership. The minutes shall be kept in
written form and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into written
form. The Board shall, from time to time, determine whether and to what
extent, and at what times and places, and under what conditions and
regulations, the accounts and books of the Partnership maintained on behalf
of each Series or any of them shall be open to the inspection of the
Investors of any Series; and no Investor shall have any right of inspecting
any account or book or document of the Partnership except that, to the extent
such account or book or document relates to the Series in which it is an
Investor or the Partnership generally, such Investor shall have such right of
inspection as conferred by laws or authorized by the Board or by resolution
of the Board.
Section 4...INSPECTION BY DIRECTORS. Every Director shall have the
absolute right, at any reasonable time, to inspect all books, records, and
documents of every kind and the physical properties of the Partnership. This
inspection by a Director may be made in person or by an agent or attorney and
the right of inspection includes the right to copy and make extracts of
documents.
ARTICLE VIII
DIVIDENDS
Section 1...DECLARATION OF DIVIDENDS. Dividends upon the Interests of
the Partnership may, subject to the provisions of the Partnership Agreement,
if any, be declared by the Board at any regular or special meeting, pursuant
to applicable law. Dividends may be paid in cash, in property, or in
Interests of the Partnership.
Section 2...RESERVES. Before payment of any dividend, there may be set
aside, out of any funds of the Partnership available for dividends, such sum
or sums as the Board may, from time to time, in its absolute discretion,
think proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Partnership,
or for such other purpose as the Board shall deem to be in the best interests
of the Partnership, and the Board may abolish any such reserve in the manner
in which it was created.
ARTICLE IX
GENERAL MATTERS
Section 1...CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. All checks,
drafts, or other orders for the payment of money, notes and other evidences
of indebtedness issued in the name of or payable to the Partnership shall be
signed or endorsed by such officers, employees or agents, as shall from time
to time be designated by the Board or the Executive Committee, or as may be
specified in or pursuant to the agreement between the Partnership, on behalf
of any Series, and the custodian appointed pursuant to the provisions of the
Partnership Agreement.
Section 2...CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board or the
Executive Committee, except as otherwise provided in these By-Laws, may
authorize any officer or officers or agent or agents of the Partnership, to
enter into any agreement or execute and deliver any instrument in the name of
the Partnership on behalf of any Series, and such authority may be general or
confined to specific instances; and, unless so authorized by the Board or by
the Executive Committee or by the Partnership Agreement or these By-Laws, no
officer, agent, or employee shall have any power or authority to bind the
Partnership by any agreement, contract or engagement or to pledge its credit
or to render it liable pecuniarily for any purpose or for any amount.
Section 3...ENDORSEMENTS, ASSIGNMENTS AND TRANSFER OF SECURITIES. All
endorsements, assignments, stock powers, other instruments of transfer or
directions for the transfer of portfolio securities or other property,
whether or not registered in nominee form, shall be made by such officers,
employees, or agents as may be authorized by the Board or the Executive
Committee.
Section 4...EVIDENCE OF AUTHORITY. Anyone dealing with the Partnership
shall be fully justified in relying on a copy of a resolution of the Board or
of any committee thereof empowered to act in the premises which is certified
as true by the Secretary or an Assistant Secretary of the Partnership.
Section 5...REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY THE
PARTNERSHIP. The Chairman, the President or any Vice President or any other
person authorized by resolution of the Board or by any of the foregoing
designated officers, is authorized to vote or represent, on behalf of the
Partnership, any and all shares of any corporation, partnership, trust, or
other entity, foreign or domestic, standing in the name of the Partnership.
The authority granted may be exercised in person or by a proxy duly executed
by such designated person.
Section 6...EQUITABLE INTEREST NOT RECOGNIZED. The Partnership shall
be entitled to treat an Investor of record of any Interests of a Series as
the absolute owner thereof and shall not be bound to recognize any equitable
or other claim to or interest in such Interests of a Series on the part of
any other person, whether or not the Partnership shall have express or other
notice thereof, except as may be otherwise expressly provided by law.
Section 7...TRANSFER AGENT AND REGISTRAR; REGULATIONS. The Board shall
have power and authority to make all such rules and regulations as it may
deem expedient concerning the issuance, transfer and registration of
Interests and may appoint a transfer agent and/or registrar of Interests of
each Series.
Section 8...FISCAL YEAR. The fiscal year of the Partnership and each
Series shall be as designated from time to time by the Board. The fiscal
year of the Partnership and each Series may be refixed or changed, from time
to time, by resolution of the Board.
ARTICLE X
AMENDMENTS
These By-Laws may be restated and/or amended at any time, without the
approval of the Investors, by a majority vote of the then Board. These
By-Laws, as amended and restated from time to time, shall constitute a part
of the Partnership Agreement.
ARTICLE XI
REPORT TO INVESTORS
The Board, so long as required by applicable law, shall at least
semi-annually submit to the Investors of each Series a written financial
report of the transactions of that Series, including financial statements
that shall at least annually be certified by independent public accountants.
ARTICLE XII
WAIVERS OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of any statute of the State of Delaware, or under the provisions
of the Partnership Agreement or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, or presence at a meeting to which such person
was entitled notice of, shall be deemed equivalent thereto. A notice shall
be deemed to have been given if telegraphed, cabled, or sent by wireless when
it has been delivered to a representative of any telegraph, cable or wireless
company with instructions that it be telegraphed, cabled, or sent by
wireless. Any notice shall be deemed to be given if mailed at the time when
the same shall be deposited in the mail.
