LIMITED LIABILITY COMPANY
AGREEMENT FOR
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
TABLE OF CONTENTS
ARTICLE I
Definitions
Page
Section 1.1. Defined Terms...............................................................................1
ARTICLE II
Formation of the Company
Section 2.1. Formation of Limited Liability Company......................................................2
Section 2.2. Name........................................................................................2
Section 2.3. Business of Company.........................................................................2
Section 2.4. Principal Place of Business.................................................................3
Section 2.5. Registered Office and Agent.................................................................3
Section 2.6. Qualification In Other Jurisdictions........................................................3
ARTICLE III
Member
Section 3.1. Address and Capital Contributions of Member.................................................3
Section 3.2. Capital and Capital Account.................................................................4
Section 3.3. Representations and Warranties..............................................................4
ARTICLE IV
Management and Control of Business
Section 4.1. Management..................................................................................4
Section 4.2. Compensation................................................................................4
Section 4.3. Liability for Certain Acts..................................................................4
Section 4.4. Officers....................................................................................5
ARTICLE V
Member
Section 5.1. Meeting of Member...........................................................................5
-i-
Page
Section 5.2. Liability...................................................................................6
ARTICLE VI
Indemnification
Section 6.1. Indemnification.............................................................................6
ARTICLE VII
Accounting and Records
Section 7.1. Accounting and Records......................................................................6
ARTICLE VIII
Distributions
Section 8.1. Distributions...............................................................................6
ARTICLE IX
Termination
Section 9.1. Termination of the Company..................................................................7
Section 9.2. Distribution of Assets......................................................................7
ARTICLE X
Miscellaneous
Section 10.1. Entire Agreement............................................................................7
Section 10.2. Governing Law...............................................................................8
Section 10.3. Headings....................................................................................8
Section 10.4. Severability................................................................................8
Section 10.5. Additional Documents and Acts...............................................................8
Section 10.6. Notices.....................................................................................8
Section 10.7. Amendments..................................................................................8
Section 10.8. Title to Company Property...................................................................8
-ii-
LIMITED LIABILITY COMPANY
AGREEMENT FOR
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the Agreement) is made and
entered into this 9th day of October 1996, by The Prudential Insurance Company
of America (the "Member").
WHEREAS, Prudential Investment Management Services LLC, a Delaware limited
liability company (the "Company") has been formed by the filing of the
Certificate of Formation, dated October 4, 1996, with the Secretary of State of
the State of Delaware, on October 9, 1996, pursuant to the Delaware Limited
Liability Company Act (the "Delaware Law");
WHEREAS, the Member of the Company enters into this Limited Liability
Company Agreement as its binding agreement and for all purposes permitted to a
limited liability company agreement under Delaware Law;
NOW, THEREFORE, the Member hereby agrees as follows:
ARTICLE I
Definitions
Section 1.1. Defined Terms. The capitalized terms used in this Agreement
shall, unless the context otherwise requires or unless otherwise expressly
provided herein, have the meanings set forth below:
(a) "Agreement" shall mean the Limited Liability Company Agreement of the
Company, as amended, modified, supplemented or restated from time to time.
(b) "Available Cash" or "Available Cash Flow" of the Company shall mean all
cash funds of the Company on hand from time to time (other than cash funds
obtained as contributions to the capital of the Company by the Member and cash
funds obtained from loans to the Company unless expressly determined by the
Member to be considered part of Available Cash) after (i) payment of all
operating expenses of the Company as of such time, (ii) provision for payment of
all outstanding and unpaid current obligations of the Company as of such time,
and (iii) provision for a working capital reserve as determined by the Member.
(c) "Capital Contribution" shall mean the total value of cash and agreed
fair market value of property contributed and agreed to be contributed to the
Company by the
Member, as shown in Section 3.1 of this Agreement, as the same may be amended
from time to time.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended. All
references herein to sections of the Code shall include any corresponding
provision or provisions of any succeeding law.
(e) "Entity" shall mean any association, corporation, general partnership,
limited partnership, limited liability company, joint stock association, joint
venture, trust, business trust, cooperative, and any foreign association of like
structure.
(f) "Fiscal Year" shall mean, for the Company's financial reporting and
federal income tax purposes, a period commencing January 1 and ending December
31 of each year, or such other period as the Managers may determine.
(g) "Person" shall mean any individual or Entity, and the heirs, executors,
administrators, successors and assigns of any such Person where the context so
requires.
(h) "Registrations" means, the permanent, temporary, proposed, or proposed
and temporary regulations of the Department of the Treasury under the Code as
such regulations may be lawfully changed from time to time.
ARTICLE II
Formation of the Company
Section 2.1. Formation of Limited Liability Company. On behalf of the
Member an authorized person has formed a Delaware limited liability company
under the laws of the State of Delaware by the filing of Certificate of
Formation for the Company pursuant to Delaware law.
Section 2.2. Name. The name of the Company is Prudential Investment
Management Services LLC.
Section 2.3. Business of Company. The business of the Company shall be as
follows:
(a) To provide management services for mutual funds;
(b) To engage in the securities and investment banking business;
(c) To engage in any lawful act or activity for which limited liability
companies may be organized under Delaware law;
2
(d) To exercise all other powers necessary to, or reasonably connected with,
the Company's business which may be legally exercised by limited liability
companies under Delaware law; and
(e) To engage in all activities necessary, customary, convenient, or incident
to any of the foregoing.
Section 2.4. Principal Place of Business. The principal place of business
of the Company shall be 000 Xxxxx Xxxxxx, Xxxxxx, XX 00000. The Company may
locate its place of business and registered office at any other place or places
as the officers may from time to time deem advisable.
Section 2.5. Registered Office and Agent. The Delaware Secretary of State
is designated as agent of the Company upon whom process against it may be
served. The registered agent of the Company upon whom process against it may be
served is the Corporation Service Company, 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
Section 2.6. Qualification in Other Jurisdictions. The Member shall cause
the Company to be qualified, or registered, under assumed or fictitious name
statutes or similar laws in which the Company transacts business in which such
qualification or registration is required or desirable. The Member shall
execute, and deliver any file certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in the
jurisdictions in which the Company may wish to conduct business.
ARTICLE III
Member
Section 3.1. Address and Capital Contributions of Member. The Member's
address and its Capital Contributions to the Company in the Company is set forth
as follows:
Initial Subsequent
Member Capital Contribution Capital Contribution
The Prudential Insurance Company of America $16,000,000 To be augmented from time to time
000 Xxxxx Xxxxxx during the existence of the Company.
Xxxxxx, XX 00000
Attn:
-3-
Section 3.2. Capital and Capital Account.
(a) The Member shall make Capital Contributions as set forth in Section 3.1
hereof. No interest shall be paid on any Capital Contribution.
(b) In addition to the Capital Contributions set forth in Section 3.1 hereof,
the Member may determine from time to time that additional Capital
Contributions are needed to enable the Company to conduct its business.
(c) The Member shall not have the right to withdraw its Capital Contribution or
to demand and receive property of the Company or any distribution in return
for its Capital Contribution, except as may be specifically provided in
this Agreement or required by law (excluding any law which grants such a
right in the absence of a negating provision in this Agreement).
Section 3.3. Representations and Warranties. The Member hereby represents
and warrants to the Company that: (a) it is duly organized, validly existing,
and in good standing under the law of its state of organization and that it has
full organizational power to execute and agrees to the Agreement to perform its
obligations hereunder; (b) the Member is acquiring its interest in the Company
for its own account as an investment and without an intent to distribute the
interest; and (c) the interests have not been registered under the Securities
Act of 1933 or any state securities laws, and may not be resold or transferred
by the Member.
ARTICLE IV
Management and Control of Business
Section 4.1. Management. The Member acting in its capacity as a member has
the exclusive power to manage the Company and bind the Company as to third
parties.
Section 4.2. Compensation. In managing the Company in its capacity as a
member, the Member may from time to time receive payment of fees for services to
the Company.
Section 4.3. Liability for Certain Acts. The Member, in its capacity as a
member, shall exercise its business judgment in participating in the management
of the business, operations and affairs of the Company. To the fullest extent
permitted by law, the Member, in its capacity as member, shall not be liable for
any mistake of fact or judgment or for the doing of any act or the failure to do
any act in conducting the business, operations and affairs of the Company as a
member, which may cause or result in any loss or damage to the Company. The
Member shall incur no liability to the Company as a result of engaging in any
other business or venture.
-4-
Section 4.4. Officers.
(a) Titles and election. The officers of the Company shall be a president, a
secretary and a treasurer, who shall initially be elected as soon as
convenient by the Member and thereafter, in the absence of earlier
resignations or removals, shall be elected at the annual meeting of Member,
each of whom shall hold office at the pleasure of the Member except as may
otherwise be approved by the Member, or until his or her earlier
resignation, removal or other termination of his or her employment. Any
person may hold more than one office if the duties can be consistently
performed by the same person, and to the extent permitted by the laws of
Delaware.
The Member, in its discretion, may also at any time elect or appoint one or
more vice presidents, a comptroller, assistant secretaries and assistant
treasurers and such other officers as they may deem advisable, each of whom
shall hold office at the pleasure of the Member, except as may otherwise be
approved by the Member or until his or her earlier resignation, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or determined from time to time by the Member.
(b) Authority and Duties. The officers shall have the authority and shall
perform the duties prescribed to them by the Member in Exhibit A.
(c) Resignations. Subject to the terms of any employment agreement entered into
with an officer, any officer may resign at any time by giving written
notice thereof to the Member. Any such resignation shall take effect at the
time specified therein or, if the time be not specified, upon receipt
thereof, and unless otherwise specified therein, the acceptance of any
resignation shall not be necessary to make it effective.
(d) Vacancies. The Member may at any time or from time to time fill any vacancy
among the officers of the Company.
ARTICLE V
Member
Section 5.1. Meeting of Member. The annual meeting of the Member may be
held at such time and in such place or places inside or outside of Delaware as
the Member may from time to time determine.
-5-
Section 5.2. Liability. No Member shall have any personal liability
whatever, solely by reason of its status as a Member of the Company, whether to
the Company or any creditor of the Company, for the debts, obligations or
liabilities of the Company or any of its losses beyond the amount of the
Member's obligation to contribute its Capital Contribution to the Company.
ARTICLE VI
Indemnification
Section 6.1. Indemnification. The Company shall indemnify, to the full
extent and under the circumstances permitted by Delaware Law, the Member made or
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that it is a Member of the Company.
This right of indemnification shall not be deemed exclusive of any other
rights to which the Member indemnified herein may be entitled by agreement or
otherwise, and shall continue as to the Member who may cease to be a Member and
shall inure to the benefit of its successor and assigns. It is not intended that
the provisions of this section be applicable to, and they are not to be
construed as granting indemnity with respect to, matters as to which
indemnification would be in contravention of the laws of Delaware or of the
United States of America whether as a matter of public policy or pursuant to
statutory provision.
ARTICLE VII
Accounting and Records
Section 7.1. Accounting and Records. The books and records of the Company
shall be kept, and the financial position and the results of its operations
recorded, at the expense of the Company, in accordance with the accrual method
of accounting elected to be followed by the Company for federal income tax
purposes. The books and records of the Company shall reflect all Company
transactions and shall be appropriate and adequate for the Company's business.
-6-
ARTICLE VIII
Distributions
Section 8.1. Distributions. The Company shall make distributions of
Available Cash or other property to the Member from time to time.
ARTICLE IX
Termination
Section 9.1. Termination of the Company. The Company shall be dissolved,
its assets shall be disposed of, and its affairs wound up on the first to occur
of the following:
(a) the vote of the Member;
(b) the sale of all or substantially all of the Company's assets;
(c) upon the death, insanity, bankruptcy, retirement, resignation, liquidation,
dissolution, or expulsion of the Member or the occurrence of any other
event that terminates the continued membership of the Member of the
Company; or
(d) any Transfer or attempted Transfer of an interest in the Company,
including, without limitation, a transfer by operation of law.
Section 9.2. Distribution of Assets. In connection with the dissolution of
the Company, and subject to applicable law:
(a) If the Company is dissolved and its affairs are to be wound up, the Member
shall (i) sell or otherwise liquidate all of the Company's assets as
promptly as practicable, (ii) discharge all liabilities of the Company
(other than liabilities to the Member), including all costs relating to the
dissolution, winding-up, and liquidation and distribution of assets, (iii)
establish such reserves as may be reasonably necessary to provide for
contingent liabilities of the Company, (iv) discharge any liabilities of
the Company to the Member other than on account of their interests in
Company capital or profits, and (v) distribute the remaining assets to the
Member.
(b) Upon completion of the winding-up, liquidation and distribution of the
assets, the Company shall be deemed terminated.
-7-
ARTICLE X
Miscellaneous
Section 10.1. Entire Agreement. This Agreement and the Certificate of
Formation constitute the entire agreement by the Member with respect to the
subject matter hereof, and supersede any prior agreement or understanding by the
Member with respect to such subject matter.
Section 10.2. Governing Law. This Agreement and the rights of the parties
hereunder will be governed by, interpreted, and enforced in accordance with the
laws of the State of Delaware.
Section 10.3. Headings. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
Section 10.4. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
illegal, invalid, or unenforceable, the remainder of this Agreement or the
application of such provision to other persons or circumstances shall not be
affected thereby.
Section 10.5. Additional Documents and Acts. The Member agrees to execute
and deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions, and conditions of this Agreement and the
transactions contemplated hereby.
Section 10.6. Notices. Any notice to be given or to be served upon the
Company or any party hereto in connection with this Agreement must be in writing
and will be deemed to have been given and received when delivered to the address
specified by the party to receive the notice. Such notices will be given to a
Member at the address specified in Section 3.1 hereof. The Member or the Company
may, at any time by giving five (5) days prior written notice to the other,
designate any other address in substitution of the foregoing address to which
such notice will be given.
Section 10.7. Amendments. All amendments to this Agreement will be in
writing and signed by the Member.
Section 10.8. Title to Company Property. Legal title to all property of the
Company will be held and conveyed in the name of the Company.
-8-
IN WITNESS WHEREOF, the undersigned Member has duly executed this Agreement
on the date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: _________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
