XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
BY-LAWS
ARTICLE I. OPERATING AGREEMENT, LOCATION OF OFFICES AND SEAL...1
Section 1.01. Operating Agreement..............................1
Section 1.02. Principal Office.................................1
Section 1.03. Seal.............................................1
ARTICLE II. BOARD OF MANAGERS..................................1
Section 2.01. Number and Term of Office........................1
Section 2.02. Power to Declare Dividends.......................2
Section 2.03. Annual and Regular Meetings......................2
Section 2.04. Special Meetings.................................3
Section 2.05. Notice...........................................3
Section 2.06. Waiver of Notice.................................3
Section 2.07. Quorum and Voting................................3
Section 2.08. Action Without a Meeting.........................3
ARTICLE III. EXECUTIVE COMMITTEE AND OTHER COMMITTEES..........3
Section 3.01. How Constituted..................................3
Section 3.02. Powers of the Executive Committee................4
Section 3.03. Other Committees of the Board of Managers........4
Section 3.04. Proceedings, Quorum and Manner of Acting.........4
Section 3.05. Other Committees.................................4
Section 3.06. Action Without a Meeting.........................4
Section 3.07. Waiver of Notice.................................4
ARTICLE IV. OFFICERS...........................................5
Section 4.01. General..........................................5
Section 4.02. Election, Term of Office and Qualifications......5
Section 4.03. Resignation......................................5
Section 4.04. Removal..........................................5
Section 4.05. Vacancies and Newly Created Offices..............5
Section 4.06. Chairman of the Board............................6
Section 4.07. President........................................6
Section 4.08. Executive Vice-Presidents and Vice-Presidents....6
Section 4.09. Senior Vice-President............................6
Section 4.10. Treasurer and Assistant Treasurers...............7
Section 4.11. Secretary and Assistant Secretaries..............7
Section 4.12. Controller and Assistant Controllers.............7
Section 4.13. Subordinate Officers.............................7
Section 4.14. Remuneration.....................................7
Section 4.15. Surety Bonds.....................................8
ARTICLE V. CUSTODY OF SECURITIES...............................8
Section 5.01. Employment of a Custodian........................8
Section 5.02. Provisions of Custodian Contract.................8
Section 5.03. Action upon Termination of Custodian Contract....9
ARTICLE VI. EXECUTION OF INSTRUMENTS, RIGHTS AS SECURITY HOLDER.9
Section 6.01. General..........................................9
Section 6.02. Checks, Notes, Drafts, Etc......................10
Section 6.03. Rights as Security Holder.......................10
ARTICLE VII. SHARES OF BENEFICIAL INTEREST....................10
Section 7.01. Certificates....................................10
Section 7.02. Uncertificated Shares...........................10
Section 7.03. Transfers of Shares.............................10
Section 7.04. Registered Shareholders.........................11
Section 7.05. Transfer Agents and Registrars..................11
Section 7.06. Fixing of Record Date...........................11
Section 7.07. Lost, Stolen, or Destroyed Certificates.........12
Section 7.08. Resumption of Issuance of Certificates/
Cancellation of Certificates....................12
ARTICLE VIII. FISCAL YEAR, ACCOUNTANT.........................12
Section 8.01. Fiscal Year.....................................12
Section 8.02. Accountants.....................................12
ARTICLE IX. AMENDMENTS........................................12
Section 9.01. General.........................................12
Section 9.02. By Shareholders Only............................13
ARTICLE X. MISCELLANEOUS......................................13
Section 10.01. Restrictions and Limitations...................13
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
BY-LAWS
(By-Laws Adopted by Board of Managers on September 25, 1998)
ARTICLE I. OPERATING AGREEMENT, LOCATION OF OFFICES AND SEAL
Section 1.01. Operating Agreement These By-Laws shall be
subject to the Operating Agreement as now in effect or hereafter
amended of Xxxxx Xxx Floating Rate Limited Liability Company, a
Delaware limited liability company established by a Certificate of
Formation (the "Company").
Section 1.02. Principal Office. A principal office of the
Company shall be located in Wilmington, Delaware. The Company may
also maintain a principal office in the City of Chicago, State of
Illinois. The Company may, in addition, establish and maintain
such other offices and places of business as the Board of Managers
may from time to time determine.
Section 1.03. Seal. The seal of the Company shall be
circular in form and shall bear the name of the Company, the word
"Delaware," and the year of its organization. The form of the
seal shall be subject to alteration by the Board of Managers and
the seal may be used by causing it or a facsimile to be impressed
or affixed or printed or otherwise reproduced. Any officer or
Manager of the Company shall have authority to affix the seal of
the Company to any document requiring the same. Unless otherwise
required by the Board of Managers, the seal shall not be necessary
to be placed on, and its absence shall not impair the validity of,
any document, instrument or other paper executed and delivered by
or on behalf of the Company.
ARTICLE II. BOARD OF MANAGERS
Section 2.01. Number and Term of Office. The Board of
Managers shall initially consist of the initial sole Manager,
which number may be increased or subsequently decreased by a
resolution of a majority of the entire Board of Managers, provided
that the number of Managers shall not be less than one nor more
than twenty-one. Each Manager (whenever selected) shall hold
office until the next meeting of shareholders called for the
purposes of electing Managers and until his successor is elected
and qualified or until his earlier death, resignation, or removal.
Each Manager shall retire on December 31 of the year during which
the Manager becomes age 74. The initial Manager shall be the
person designated in the Operating Agreement.
Section 2.02. Power to Declare Dividends.
(a) The Board of Managers, from time to time as it may deem
advisable, may declare and pay dividends to the shareholders of
any series of the Company in cash or other property of that
series, out of any source available to that series for dividends,
according to the respective rights and interests of shareholders
of that series and in accordance with the applicable provisions of
the Operating Agreement.
(b) The Board of Managers may prescribe from time to time
that dividends declared on shares of a series may be payable at
the election of any of the shareholders of that series
(exercisable before the declaration of the dividend), either in
cash or in shares of that series; provided that the net asset
value of the shares received by a shareholder electing to receive
dividends in shares (determined as of such time as the Board of
Managers shall have prescribed in accordance with the Operating
Agreement) shall not exceed the full amount of cash to which the
shareholder would be entitled if he elected to receive cash.
(c) The Board of Managers shall cause any dividend payment to
shareholders of a series to be accompanied by a written statement
if wholly or partly from any source other than:
(i) such series' accumulated undistributed net income
(determined in accordance with generally accepted
accounting principles and the rules and regulations
then in effect of the Securities and Exchange
Commission or any other governmental body having
similar jurisdiction over the Company (the "SEC"))
and not including profits or losses realized upon the
sale of securities or other properties of the series;
or
(ii) the series' net income so determined for the current
or preceding fiscal year.
Such statement shall adequately disclose the source or sources of
such payment and the basis of calculation and shall be in such
form as the SEC may prescribe.
Section 2.03. Annual and Regular Meetings. Annual and
regular meetings of the Board of Managers may be held without call
or notice and at such places at such times as the Board of
Managers may from time to time determine provided that notice of
the first regular meeting following any such determination shall
be given to absent Managers. Members of the Board of Managers or
any committee designated thereby may participate in a meeting of
such Board or committee by means of a conference telephone or
other communications equipment, by means of which all persons
participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at
a meeting; provided, however, that the Board of Managers shall not
enter into, renew, or perform any contract or agreement, written
or oral, whereby a person undertakes regularly to serve or act as
investment adviser with respect to any series of the Company
unless the terms of such contract or agreement and any renewal
thereof have been approved by the vote of a majority of Managers
who are not parties to such contract or agreement or interested
persons of any such party, which votes shall be cast at a meeting
called for the purpose of voting on such approval at which such
persons are physically present.
Section 2.04. Special Meetings. Special meetings of the
Board of Managers shall be held whenever called and at such place
and time determined by the President, Executive Vice-President or
Secretary (or, in the absence or disability of the President,
Executive Vice-President and Secretary, by any Vice-President), or
a majority of the Managers then in office, at the time and place
specified in the respective notices or waivers of notice of such
meetings.
Section 2.05. Notice. If notice of a meeting of the Board
of Managers is required or desired to be given, notice stating the
time and place shall be mailed to each Manager at his residence or
regular place of business at least five days before the day on
which the meeting is to be held or caused to be delivered to him
personally or to be transmitted to him by telephone, telegraph,
cable, or wireless at least one day before the meeting.
Section 2.06. Waiver of Notice. No notice required or
desired to be given of any meeting need be given to any Manager
who attends such meeting in person or to any Manager who waives
notice of such meeting in writing (which waiver shall be filed
with records of such meeting), whether before or after the time of
the meeting.
Section 2.07. Quorum and Voting. At all meetings of the
Board of Managers, the presence of one-third of the number of
Managers then in office shall constitute a quorum for the
transaction of business; provided, however, a quorum shall not be
less than the lesser of two Managers or 100% of all Managers then
in office. In the absence of a quorum, a majority of the Managers
present may adjourn the meeting without further notice, from time
to time, until a quorum shall be present. The action of a
majority of the Managers present at a meeting at which a quorum is
present shall be the action of the Board of Managers, unless the
concurrence of a greater proportion is required for such action by
law, by the Operating Agreement, or by these By- Laws.
Section 2.08. Action Without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of Managers
may be taken without a meeting, if written consents thereto are
signed by a majority of the members of the Board, unless the
consent of a larger number is required pursuant to applicable law
in which case the consents of such number shall be required, and
such written consents are filed with the minutes of proceedings of
the Board of Managers.
ARTICLE III. EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. How Constituted. By resolution adopted by the
Board of Managers, the Board may designate one or more committees,
including an Executive Committee, each of which shall consist of
at least two Managers. Each member of a committee shall be a
Manager and shall hold office during the pleasure of the Board.
Section 3.02. Powers of the Executive Committee. Unless
otherwise provided by resolution of the Board of Managers, the
Executive Committee shall have and may exercise all powers of the
Board of Managers in the management of the business and affairs of
the Company that may lawfully be exercised by an executive
committee, except the power to recommend to shareholders any
matter requiring shareholder approval, amend the Operating
Agreement or By-Laws, or approve any merger or share exchange that
does not require shareholder approval.
Section 3.03. Other Committees of the Board of Managers. To
the extent provided by resolution of the Board, other committees
of the Board shall have and may exercise any of the powers that
may lawfully be granted to the Executive Committee.
Section 3.04. Proceedings, Quorum and Manner of Acting. In
the absence of appropriate resolution of the Board of Managers,
each committee may adopt such rules and regulations governing its
proceedings, quorum and manner of acting as it shall deem proper
and desirable, provided that the quorum shall not be less than two
Managers except that, in the case of a committee (other than the
Executive Committee) consisting of two Managers, one Manager shall
constitute a quorum unless the Board by resolution specifies that
a quorum for that committee shall consist of two Managers. In the
absence of any member of any such committee, the members thereof
present at any meeting, whether or not they constitute a quorum,
may appoint a member of the Board of Managers to act in the place
of such absent member.
Section 3.05. Other Committees. The Board of Managers may
appoint other committees, each consisting of one or more persons,
who need not be Managers. Each such committee shall have such
powers and perform such duties as may be assigned to it from time
to time by the Board of Managers, but shall not exercise any power
which may lawfully be exercised only by the Board of Managers or a
committee thereof.
Section 3.06. Action Without a Meeting. Any action required
or permitted to be taken at any meeting of any committee may be
taken without a meeting, if written consents thereto are signed by
a majority of the members of the committee unless the consent of a
larger number is required pursuant to applicable law in which case
the consents of such number shall be required, and such written
consents are filed with the minutes of proceedings of the Board of
Managers or of the committee.
Section 3.07. Waiver of Notice. Whenever any notice of the
time, place or purpose of any meeting of any committee is required
to be given under the provisions of any applicable law or under
the provisions of the Operating Agreement or these By-Laws, a
waiver thereof in writing, signed by the person or persons
entitled to such notice and filed with the records of the meeting,
whether before or after the holding of such meeting, or actual
attendance at the meeting in person, shall be deemed equivalent to
the giving of such notice to such persons.
ARTICLE IV. OFFICERS
Section 4.01. General. The officers of the Company shall be
a President, a Secretary, a Senior Vice-President, a Treasurer and
a Controller, and may include one or more Executive Vice-
Presidents, Vice-Presidents, Assistant Secretaries, Assistant
Treasurers or Assistant Controllers and such other officers as may
be appointed in accordance with the provisions of Section 4.13
hereof. The Board of Managers may elect, but shall not be
required to elect, a Chairman of the Board.
Section 4.02. Election, Term of Office and Qualifications.
The officers of the Company (except those appointed pursuant to
Section 4.13 hereof) shall be chosen by the Board of Managers at
its first meeting or such subsequent meetings as shall be held
prior to its first annual meeting and thereafter annually. If any
officers are not chosen at any annual meeting, such officers may
be chosen at any subsequent regular or special meeting of the
Board. Except as provided in Sections 4.03, 4.04 and 4.05 hereof,
each officer chosen by the Board of Managers shall hold office
until the next annual meeting of the Board of Managers and until
his successor shall have been chosen and qualified or until his
earlier death. Any person may hold one or more offices of the
Company except the offices of President and Vice-President, but no
officer shall execute, acknowledge, or verify an instrument in
more than one capacity, if such instrument is required by law, by
the Operating Agreement, or by these By-Laws to be executed,
acknowledged or verified by two or more officers. The Chairman of
the Board, if any, shall be chosen from among the Managers of the
Company and may hold such office only so long as he continues to
be a Manager. No other officer need be a Manager.
Section 4.03. Resignation. Any officer may resign his
office at any time by delivering a written resignation to the
Board of Managers, the President, the Secretary, or any Assistant
Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
Section 4.04. Removal. Any officer may be removed from
office, whenever in the Board's judgment the best interest of the
Company will be served thereby, by the vote of a majority of the
Board of Managers given at any regular or special meeting. In
addition, any officer or agent appointed in accordance with the
provisions of Section 4.13 hereof may be removed, either with or
without cause, by any officer upon whom such power of removal
shall have been conferred by the Board of Managers.
Section 4.05. Vacancies and Newly Created Offices. If any
vacancy shall occur in any office by reason of death, resignation,
removal, disqualification, or other cause, or if any new office
shall be created, such vacancy or newly created office may be
filled by the Board of Managers at any regular or special meeting
or, in the case of any office created pursuant to Section 4.13
hereof, by any officer upon whom such power shall have been
conferred by the Board of Managers. An officer chosen by the
Board of Managers to fill a vacancy or a newly created office
shall serve until the next annual meeting of the Board of Managers
and until his successor shall have been chosen and qualified or
until his earlier death, resignation or removal.
Section 4.06. Chairman of the Board. In the absence or
disability of the President, the Chairman of the Board, if there
be such an officer, shall preside at all shareholders' meetings
and at all meetings of the Board of Managers. He shall have such
other powers and perform such other duties as may be assigned to
him from time to time by the Board of Managers.
Section 4.07. President. The President shall be the chief
executive officer and shall preside at all shareholders' meetings
and at all meetings of the Board of Managers. Subject to the
supervision of the Board of Managers, he shall have the general
charge of the business, affairs and property of the Company and
general supervision over its other officers, employees and agents.
Section 4.08. Executive Vice-Presidents and Vice-Presidents.
The Board of Managers may from time to time elect one or more
Executive Vice-Presidents and one or more Vice-Presidents, who
shall have such powers and perform such duties as from time to
time may be assigned to them by the Board of Managers or the
President. At the request of the President, the Executive Vice-
President, and if no Executive Vice-President is present or able,
the Vice-President may perform all the duties of the President
and, when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. If there are two or
more Executive Vice-Presidents or Vice-Presidents, the earliest
elected to the more senior office present and able shall perform
the duties of the President in his absence or disability.
Section 4.09. Senior Vice-President. The Senior Vice-
President shall be the principal financial officer of the Company
and shall have general charge of the finances and books of account
of the Company. Except as otherwise provided by the Board of
Managers, he shall have general supervision of the funds and
property of the Company and of the performance by the Custodian of
its duties with respect thereto. He shall render to the Board of
Managers, whenever directed by the Board, an account of the
financial condition of the Company and of all his transactions as
Senior Vice-President; and as soon as possible after the close of
each fiscal year he shall make and submit to the Board of Managers
a like report for such fiscal year. He shall perform all the acts
incidental to the office of Senior Vice-President, subject to the
control of the Board of Managers. At the request of any Executive
Vice-President, or if no Executive Vice-President is present or
able, the Senior Vice-President may perform all of the duties of
the Executive Vice-President (except to the extent that such
duties have otherwise been delegated by or pursuant to these By-
Laws) and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the Executive Vice-President.
Section 4.10. Treasurer and Assistant Treasurers. The
Treasurer and any Assistant Treasurer may perform such duties of
the Senior Vice-President as the Senior Vice-President or the
Board of Managers may assign, and, in the absence of the Senior
Vice-President, may perform all the duties of the Senior Vice-
President.
Section 4.11. Secretary and Assistant Secretaries. The
Secretary shall attend to the giving and serving of all notices of
the Company and shall record all proceedings of the meetings of
the shareholders, Managers, the Executive Committee and other
committees, in a book to be kept for that purpose. He shall keep
in safe custody the seal of the Company, and shall have charge of
the records of the Company, including the share books and such
other books and papers as the Board of Managers may direct and
such books, reports, certificates and other documents required by
law to be kept, all of which shall, at all reasonable times, be
open to inspection by any Manager. He shall perform all the acts
incidental to the office of Secretary, subject to the control of
the Board of Managers.
Any Assistant Secretary may perform such duties of the
Secretary as the Secretary or the Board of Managers may assign,
and, in the absence of the Secretary, he may perform all the
duties of the Secretary.
Section 4.12. Controller and Assistant Controllers. The
Controller shall be the chief accounting officer of the Company.
He shall direct the preparation and maintenance, on a current
basis, of such accounting books, records and reports as may be
necessary to permit the directors, officers and executives of the
Company or as may be required by law. He shall perform all the
acts incidental to the office of Controller, subject to the
control of the Board of Managers, the Executive Vice-President or
the Senior Vice-President.
Any Assistant Controller may perform such duties of the
Controller as the Controller or the Board of Managers may assign,
of the Controller.
Section 4.13. Subordinate Officers. The Board of Managers
from time to time may appoint such other officers or agents as it
may deem advisable, each of whom shall have such title, hold
office for such period, have such authority and perform such
duties as the Board of Managers may determine. The Board of
Managers from time to time may delegate to one or more officers or
agents the power to appoint any such subordinate officers or
agents and to prescribe their respective rights, terms of office,
authorities and duties.
Section 4.14. Remuneration. The salaries, if any, or other
compensation of the officers of the Company shall be fixed from
time to time by resolution of the Board of Managers, except that
the Board of Managers may by resolution delegate to any person or
group of persons the power to fix the salaries or other
compensation of any subordinate officers or agents appointed in
accordance with the provisions of Section 4.13 hereof.
Section 4.15. Surety Bonds. The Board of Managers may
require any officer or agent of the Company to execute a bond to
the Company (including, without limitation, any bond required by
the Investment Company Act of 1940, or any rule or regulation
thereunder, all as now in effect or as hereafter amended or added
(the "1940 Act") and the rules and regulations of the SEC) in such
sum and with such surety or sureties as the Board of Managers may
determine, conditioned upon the faithful performance of his duties
to the Company, including responsibility for negligence and for
the accounting of any of the Company's property, funds, or
securities that may come into his hands.
ARTICLE V. CUSTODY OF SECURITIES
Section 5.01. Employment of a Custodian. The Company shall
place and at all times maintain in the custody of a Custodian
(including any sub-custodian for the Custodian) all securities
owned by the Company and cash representing the proceeds from sales
of securities owned by the Company and of capital stock or other
units of beneficial interest issued to the Company, payments of
principal upon securities owned by the Company, or capital
distribution in respect to capital stock or other units of
beneficial interest owned by the Company, pursuant to a written
contract with such Custodian. The Custodian shall be a bank or
trust company having not less than $2,000,000 aggregate capital,
surplus and undivided profits (as shown in its last published
report).
Section 5.02. Provisions of Custodian Contract. The
Custodian contract shall be upon such terms and conditions and may
provide for such compensation as the Board of Managers deems
necessary or appropriate, provided such contract shall further
provide that the Custodian shall deliver securities owned by the
Company only upon sale of such securities for the account of the
Company and receipt of payment therefor by the Custodian or when
such securities may be called, redeemed, retired, or otherwise
become payable. Such limitations shall not prevent:
(a) the delivery of securities for examination to the broker
selling the same in accord with the "street delivery" custom
whereby such securities are delivered to such broker in exchange
for a delivery receipt exchanged on the same day for an
uncertified check of such broker to be presented on the same day
for certification;
(b) the delivery of securities of an issuer in exchange for
or for conversion into other securities alone or cash and other
securities, pursuant to any plan of merger, consolidation,
reorganization, recapitalization, or readjustment of the
securities of such issuer;
(c) the conversion by the Custodian of securities owned by
the Company, pursuant to the provisions of such securities, into
other securities;
(d) the surrender by the Custodian of warrants, rights, or
similar securities owned by the Company in the exercise of such
warrants, rights, or similar securities, or the surrender of
interim receipts or temporary securities for definitive
securities;
(e) the delivery of securities as collateral on borrowing
effected by the Company; or
(f) the delivery of securities owned by the Company as a
redemption in kind of securities issued by the Company.
The Custodian shall deliver funds of the Company for the
purchase of securities for the portfolio of the Company only upon
the delivery of such securities to the Custodian, but such
limitation shall not prevent the release of funds by the Custodian
for redemption of shares issued by the Company, for payment of
interest, dividend disbursements, taxes or management fees, for
payments in connection with the conversion, exchange or surrender
of securities owned by the Company as set forth in subparagraphs
(b), (c) and (d) above or for operating expenses of the Company.
The term "security" shall be broadly construed and shall
include, without limitation, the various types of securities set
forth in Section 3(a)(10) of the Securities Exchange Act of 1934.
Section 5.03. Action upon Termination of Custodian Contract.
The contract of employment of the Custodian may be terminated by
either party on 60 days' written notice to the other party. Upon
termination of the Custodian contract, resignation of the
Custodian, or inability of the Custodian to continue to serve, the
Board of Managers shall use its best efforts to obtain a successor
custodian. If a successor custodian is found, the Company shall
require the retiring Custodian to deliver the cash and securities
owned by the Company directly to the successor custodian. In the
event that no successor custodian which has the required
qualifications and is willing to serve can be found, the Board of
Managers shall call a special meeting of the shareholders to
submit to the shareholders, before delivery of the cash and
securities owned by the Company to other than a successor
custodian, the question of whether the Company shall function
without a custodian or shall be liquidated.
ARTICLE VI. EXECUTION OF INSTRUMENTS, RIGHTS AS SECURITY HOLDER
Section 6.01. General. All deeds, documents, transfers,
contracts, agreements and other instruments requiring execution by
the Company shall be signed by the President, the Executive Vice-
President, the Senior Vice-President, the Controller, the
Secretary, or the Treasurer, or as the Board of Managers may
otherwise, from time to time, authorize. Any such authorization
may be general or confined to specific instances.
Section 6.02. Checks, Notes, Drafts, Etc. Except as
otherwise authorized by the Board of Managers, all checks and
drafts for the payment of money shall be signed in the name of the
Company by the Custodian, and all requisitions or orders for the
payment of money by the Custodian or for the issue of checks and
drafts therefor, all promissory notes, all assignments of shares
or securities standing in the name of the Company and all
requisitions or orders for the assignment of shares or securities
standing in the name of the Custodian or its nominee, or for the
execution of powers to transfer the same, shall be signed in the
name of the Company by not less than two of its officers.
Promissory notes, checks, or drafts payable to the Company may be
endorsed only to the order of the Custodian or its agent.
Section 6.03. Rights as Security Holder. Unless otherwise
ordered by the Board of Managers, any officer shall have full
power and authority on behalf of the Company to (1) exercise (or
waive) any and all rights, powers and privileges incident to the
ownership of any securities or other obligations which may be
owned by the Company; and (2) attend and to act and to vote, or in
the name of the Company to execute proxies to vote, at any meeting
of security holders of any company in which the Company may hold
securities. At any such meeting, any officer shall possess and
may exercise (in person or by proxy) any and all rights, powers
and privileges incident to the ownership of such securities.
ARTICLE VII. SHARES OF BENEFICIAL INTEREST
Section 7.01. Certificates. The Company shall not issue
share certificates unless the Managers so authorize. In the event
that certificates are issued, each certificate will be valid if
signed by the President or a Vice-President and countersigned by
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer and sealed with the seal. The signatures may
be either manual or facsimile signatures and the seal may be
either facsimile or any other form of seal. In case any officer
who has signed any certificate ceases to be an officer of the
Company before the certificate was issued, the certificate
nevertheless has the same effect as if the officer had not ceased
to be such officer as of the date of its issue.
Section 7.02. Uncertificated Shares. The Company's share
ledger shall be deemed to represent and certify the number of full
and/or fractional shares of a series owned of record by a
shareholder in those instances where a certificate for such shares
has not been issued.
Section 7.03. Transfers of Shares. Shares of any series of
the Company shall be transferable on the books of the Company at
the request of the record holder thereof in person or by a duly
authorized attorney, upon presentation to the Company or its
transfer agent of a duly executed assignment or authority to
transfer, or proper evidence of succession, and, if the shares are
represented by a certificate, a duly endorsed certificate or
certificates of shares surrendered for cancellation, and with such
proof of the authenticity of the signatures as the Company or its
transfer agent may reasonably require, provided, whether or not
such shares are represented by any certificate or certificates of
shares, that:
(a) the Company has no duty to inquire into adverse claims or
has discharged any such duty;
(b) any applicable law relating to the collection of taxes
has been complied with; and
(c) the transfer is in fact rightful or is to a bona fide
purchaser.
The transfer shall be recorded on the books of the Company
and the old certificates, if any, shall be cancelled.
Section 7.04. Registered Shareholders. The Company shall be
entitled to treat the holder of record of shares of each series as
the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of State of Delaware.
Section 7.05. Transfer Agents and Registrars. The Board of
Managers may, from time to time, appoint or remove transfer agents
and/or registrars of transfers of shares of the Company, and it
may appoint the same person as both transfer agent and registrar.
Upon any such appointment being made, all certificates
representing shares thereafter issued shall be countersigned by
one of such transfer agents or by one of such registrars of
transfers or by both and shall not be valid unless so
countersigned. If the same person shall be both transfer agent
and registrar, only one countersignature by such person shall be
required.
Section 7.06. Fixing of Record Date. The Board of Managers
may fix in advance a date as a record date for the determination
of the shareholders of any series entitled to notice of or to vote
at any meeting of such shareholders or any adjournment thereof, or
to express consent to Company action in writing without a meeting,
or to receive payment of any dividend or other distribution or
allotment of any rights, or to exercise any rights in respect of
any change, conversion, or exchange of shares of such series, or
for the purpose of any other lawful action, provided that such
record date shall not be a date more than 60 days, and, in the
case of a meeting of shareholders, not less than 10 days, prior to
the date on which the particular action requiring such
determination of shareholders of such series is to be taken. In
such case only such shareholders as shall be shareholders of
record of such series on the record date so fixed shall be
entitled to such notice of, and to vote at, such meeting or
adjournment, or to give such consent, or to receive payment of
such dividend or other distribution, or to receive such allotment
of rights, or to exercise such rights, or to take such other
action, as the case may be, notwithstanding any transfer or
redemption of any shares of such series on the books of the
Company after any such record date. If no record date has been
fixed for the determination of shareholders, the record date for
the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders shall be at the close of business on
the day on which notice of the meeting is mailed, which shall not
be more than 60 days before the meeting, or, if notice is waived
by all shareholders entitled thereto, at the close of business on
the tenth day before the day on which the meeting is held.
Section 7.07. Lost, Stolen, or Destroyed Certificates.
Before transferring on the books of the Company shares represented
by a certificate that is alleged to have been lost, stolen, or
destroyed, the Board of Managers or any officer authorized by the
Board may, in its or his discretion, require the owner of the
lost, stolen, or destroyed certificate (or his legal
representative) to give the Company a bond or other indemnity, in
such form and in such amount as of the Board or any such officer
may direct and with such surety or sureties as may be satisfactory
to the Board or any such officer, sufficient to indemnify the
Company against any claim that may be made against it on account
of the alleged loss, theft, or destruction of any such
certificate.
Section 7.08. Resumption of Issuance of
Certificates/Cancellation of Certificates. The Managers may at
any time resume the issuance of share certificates. The Managers
may, by written notice to each shareholder, require the surrender
of share certificates to the Company for cancellation. Such
surrender and cancellation shall not affect the ownership of
shares in the Company.
ARTICLE VIII. FISCAL YEAR, ACCOUNTANT
Section 8.01. Fiscal Year. The fiscal year of each series
of shares of the Company shall be established by the Board of
Managers.
Section 8.02. Accountants. For each series of the shares of
the Company, the Company shall employ an independent public
accountant or firm of independent public accountants as the
Accountant for such series to examine and certify or issue its
report on the financial statements of that series of the Company.
Each Accountant's certificates and reports shall be addressed both
to the Board of Managers and to the shareholders of the applicable
series.
ARTICLE IX. AMENDMENTS
Section 9.01. General. Except as provided in Section 9.02
hereof, all By-Laws of the Company, whether adopted by the Board
of Managers or the shareholders, shall be subject to amendment,
alteration, or repeal, and new By-Laws may be made, by the
affirmative vote of either:
(a) the holders of record of a majority of the votes
represented by outstanding shares of the Company entitled to vote
at any meeting, the notice or waiver of notice of which shall have
specified or summarized the proposed amendment, alteration,
repeal, or new By-Law; or
(b) a majority of the Managers, at any regular or special
meeting.
Section 9.02. By Shareholders Only.
(a) No amendment of any section of these By-Laws shall be
made except by the shareholders of the Company, if the By-Laws
provide that such section may not be amended, altered or repealed
except by the shareholders.
(b) From and after the issue of any shares of the Company to
the public, no amendment of this Article IX or Article X shall be
made except by the shareholders of the Company.
ARTICLE X. MISCELLANEOUS
Section 10.01. Restrictions and Limitations.
(a) Except as hereinafter provided, no officer or Manager of
the Company, no officer, director, or stockholder (or partner of a
stockholder) of the investment adviser of the Company (as that
term is defined in the 0000 Xxx) or of any underwriter of the
Company, and no investment adviser or underwriter of the Company
shall take long or short positions in the securities issued by the
Company. The foregoing provision shall not prevent the purchase
from the Company of shares of any series issued by the Company by
any person at the price available to shareholders of the Company
generally at the time of such purchase, or as described in the
current Prospectus of the Company, or prior to commencement of the
public offering of shares of the Company, at the net asset value
of such shares.
(b) The Company shall not lend assets of the Company to any
officer or Manager of the Company or to any officer, director, or
stockholder (or partner of a stockholder) of, or person
financially interested in, the investment adviser or any
underwriter of the Company, or to the investment adviser of the
Company or to any underwriter of the Company.
(c) The Company shall not restrict the transferability or
negotiability of the shares of the Company, except in conformity
with the statements with respect thereto contained in the
Company's Registration Statement, and not in contravention of such
rules and regulations as the SEC may prescribe.
(d) The Company shall not permit any officer or Manager of
the Company, or any officer, director, or stockholder (or partner
of a stockholder) of the investment adviser or any underwriter of
the Company to deal for or on behalf of the Company with himself
as principal or agent, or with any partnership, association, or
trust in which he has a financial interest; provided that the
foregoing provisions shall not prevent (1) officers and Managers
of the Company from buying, holding, redeeming, or selling shares
in the Company, or from being officers, directors, or stockholders
(or partners of a stockholder) of or otherwise financially
interested in the investment adviser or any underwriter of the
Company; (2) purchases or sales of securities or other property by
the Company from or to an affiliated person or to the investment
adviser or any underwriter of the Company, if such transactions
are not prohibited by the 1940 Act or have been exempted by SEC
order from the prohibitions of the 1940 Act; (3) purchases of
investments for the portfolio of the Company through a securities
dealer who is, or one or more of whose partners, stockholders,
officers, or directors is, an officer or Manager of the Company,
if such transactions are handled in the capacity of broker only
and commissions charged do not exceed customary brokerage charges
for such services; (4) employment of legal counsel, registrar,
transfer agent, dividend disbursing agent, or custodian who is, or
has a partner, stockholder, officer, or director who is, an
officer or Manager of the Company, if only customary fees are
charged for services to the Company; (5) sharing statistical,
research, legal and management expenses and office hire and
expenses with any other investment company in which an officer or
Manager of the Company is an officer, trustee, or director or
otherwise financially interested.
END OF BY-LAWS
