RICI® LINKED - PAM ADVISORS FUND, LLC (A Delaware limited liability company offering four series of limited liability company interests) RICI® LINKED - PAM TOTAL INDEX SERIES RICI® LINKED - PAM ENERGY SECTOR SERIES RICI® LINKED - PAM METALS SECTOR...
Exhibit
4.1
RICI®
LINKED - XXX ADVISORS FUND, LLC
(A
Delaware limited liability company offering four series of limited liability
company interests)
RICI®
LINKED - XXX TOTAL INDEX SERIES
RICI®
LINKED - XXX ENERGY SECTOR SERIES
RICI®
LINKED - XXX METALS SECTOR SERIES
RICI®
LINKED - XXX AGRICULTURAL SECTOR SERIES
SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
LIMITED
LIABILITY COMPANY INTERESTS CREATED HEREBY ARE BEING ACQUIRED FOR INVESTMENT,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES ACT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
EXCEPT AS PERMITTED UNDER APPLICABLE SECURITIES LAWS. THE SALE,
TRANSFER, PLEDGE OR HYPOTHECATION OF THESE INTERESTS REQUIRES THE CONSENT OF THE
MANAGING MEMBER.
PRICE
ASSET MANAGEMENT, INC.
Managing
Member
RICI®
LINKED - XXX ADVISORS FUND, LLC
SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
TABLE
OF CONTENTS
1.
|
Name;
Formation.
|
1
|
|
2.
|
Registered
Office; Principal Place of Business.
|
2
|
|
3.
|
Business.
|
2
|
|
4.
|
Term;
Dissolution; Fiscal Year.
|
3
|
|
(a)
|
Term.
|
3
|
|
(b)
|
Dissolution.
|
4
|
|
(c)
|
Fiscal
Year.
|
4
|
|
5.
|
Capital
Contributions and Capital Accounts.
|
5
|
|
(a)
|
Members’
Contributions.
|
5
|
|
(b)
|
Offering
of Limited Liability Company Interests.
|
5
|
|
(c)
|
Limited
Liability of Members.
|
5
|
|
(d)
|
Return
of Members’ Capital Contributions.
|
5
|
|
6.
|
Series
of the Company.
|
7
|
|
(a)
|
Establishment
of Series.
|
7
|
|
(b)
|
Assets
and Liabilities Associated with a Series.
|
7
|
|
(c)
|
Ownership
of Series Property.
|
8
|
|
(d)
|
Establishment
of Initial Series of Interests.
|
9
|
|
7.
|
Allocation
of Profits and Losses.
|
9
|
|
(a)
|
Capital
Accounts.
|
9
|
|
(b)
|
Monthly
and Yearly Allocations.
|
10
|
|
(c)
|
Allocation
of Profit and Loss for Federal Income Tax Purposes.
|
10
|
|
(d)
|
Definition
of “Net Assets” or “Net Asset Value.”
|
11
|
|
(e)
|
Expenses;
Reserves.
|
11
|
|
(f)
|
Managing
Member’s Management Fee.
|
12
|
|
(g)
|
Servicing
Fee.
|
12
|
|
8.
|
Duties
of the Managing Member.
|
13
|
|
(a)
|
Management
of the Company.
|
13
|
|
(b)
|
Services
of Third Parties.
|
13
|
|
(c)
|
Limitation
on Commodity Activity of the Managing
Member.
|
13
|
|
9.
|
Records;
Reports to Members.
|
14
|
|
10.
|
Non-Assignability
of Interests; Withdrawals; Distributions; Suspensions; Chargebacks to
Current or Former Members; No Guarantee of Return of
Capital.
|
14
|
(a)
|
Non-Assignability
of the Limited Liability Company Interests.
|
14
|
|
(b)
|
Withdrawal
of Capital.
|
15
|
|
(c)
|
Compulsory
Withdrawal
|
15
|
|
(d)
|
Exchange
of Interests in a Series.
|
15
|
|
(e)
|
Distributions.
|
16
|
|
(f)
|
Suspension
of the Determination of Net Assets and
Withdrawals.
|
16
|
|
(g)
|
Chargebacks
to Current or Former Members.
|
16
|
|
(h)
|
No
Guarantee of Return of Capital.
|
17
|
|
11.
|
Special
Power of Attorney.
|
17
|
|
12.
|
Admission
and/or Substitution of Managing Member; Withdrawal of the Managing
Member.
|
18
|
|
13.
|
No
Personal Liability for Return of Capital
|
18
|
|
13.
|
Standard
of Liability and Indemnification.
|
18
|
|
(a)
|
Standard
of Liability.
|
18
|
|
(b)
|
Indemnification
of the Managing Member.
|
19
|
|
(c)
|
Indemnification
of the Company.
|
19
|
|
14.
|
Amendments.
|
19
|
|
15.
|
Governing
Law.
|
20
|
|
16.
|
Miscellaneous.
|
20
|
|
(a)
|
Priority
Among Members.
|
20
|
|
(b)
|
No
Appraisal Rights.
|
21
|
|
(c)
|
Ownership.
|
21
|
|
(d)
|
Remedies
for Breach; Effect of Waiver or Consent.
|
21
|
|
(e)
|
Further
Assurances.
|
21
|
|
(f)
|
Notices.
|
21
|
|
(g)
|
Binding
Effect.
|
22
|
|
(h)
|
Captions.
|
22
|
|
(i)
|
Confidentiality.
|
22
|
|
(j)
|
Consent
to Jurisdiction.
|
22
|
|
(k)
|
Powers
of Members.
|
23
|
|
(l)
|
Legal
Effect; Manner of Execution.
|
23
|
|
(m)
|
Tax
Elections; Determination of Matters Not Provided for in this
Agreement.
|
23
|
|
ii
RICI®
LINKED - XXX ADVISORS FUND, LLC
SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
This
Second Amended and Restated Limited Liability Company Agreement (this
“Agreement”) is made as of October 31, 2007, by and among Price Asset
Management, Inc., an Illinois corporation (“Price” or the “Managing Member”),
and the other parties who shall execute this Agreement, whether by separate
instrument or by becoming direct signatories hereto, as members (each, a
“Member,” and collectively, the “Members” which shall include the Managing
Member unless the context otherwise requires).
WITNESSETH:
WHEREAS,
the Managing Member has formed a limited liability company pursuant to the
Delaware Limited Liability Company Act, 6 Del. C. Section 18-101 et seq. (the
“Act”) by filing a Certificate of Formation of the Company with the office of
the Secretary of State of the State of Delaware;
WHEREAS,
it is intended by the parties hereto that the Company shall have multiple series
and that the debts, liabilities and obligations incurred, contracted for or
otherwise existing with respect to a particular series of the Company will be
enforceable against the assets of such series only, and not against the assets
of the Company generally or any other series thereof, and none of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Company generally or any other series thereof shall
be enforceable against the assets of such series;
WHEREAS,
the Company has been governed since its inception by a Limited Liability Company
Agreement dated as of September 29, 2006, which was amended and restated as of
May 24, 2007; and
WHEREAS,
the parties hereto desire to amend and restate this Agreement to: (1) set forth
their respective interests, rights, powers, authority, duties, responsibilities,
liabilities and obligations in and with respect to the Company and any Series
(as hereinafter defined), as well as the respective interests, rights, powers,
authority, duties, responsibilities, liabilities and obligations of persons who
may hereafter be admitted to the Company as Members of a Series in accordance
with the provisions hereof, and (2) provide for the management and conduct of
the business and affairs of the Company and any Series as provided
herein.
NOW,
THEREFORE, in consideration of the mutual promises and agreements made herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Name;
Formation.
The name
of the limited liability company is RICI® Linked - XXX Advisors Fund, LLC (the
“Company”). The Managing Member may change the name of the Company
from time to time without the consent of the Members, promptly notifying the
Members of any such change.
The
Managing Member has executed and caused a Certificate of Formation to be filed
in accordance with the provisions of the Act and shall execute, file and record,
as appropriate, such amendments, assumed name certificates and other documents
as are or become necessary or advisable as determined by the Managing Member,
and shall take all steps which the Managing Member may deem necessary or
advisable to allow the Company to conduct business in any jurisdiction where the
Company
A-1
conducts
business and to otherwise provide that Members will have limited liability with
respect to the activities of the Company in all such
jurisdictions. Each Member hereby undertakes to furnish to the
Managing Member a power of attorney which may be filed with the Certificate of
Formation and any amendments thereto and such additional information as is
required from him to complete such documents and to execute and cooperate in the
filing or recording of such documents at the request of the Managing
Member.
2. Registered
Office; Principal Place of Business.
The
principal office of the Company shall be 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx
0000X, Xxxxxxx, Xxxxxxxx 00000, or such other place as the Managing Member may
designate.
Subject
to the provisions of Section 18-104(b) of the Act, the registered office of the
Company required by the Act to be maintained in the State of Delaware shall be
the registered office initially named in the Certificate of Formation or such
other office (which may but need not be a place of business of the Company) as
the Managing Member may designate from time to time in accordance with the
provisions of the Act. Subject to the provisions of Sections
18-104(c) and (d) of the Act, the registered agent for service of process on the
Company required by the Act to be maintained in the State of Delaware shall be
the registered agent initially named in the Certificate of Formation or such
other person as the Managing Member may designate from time to time in
accordance with the provisions of the Act.
The
Managing Member may change the registered office and registered agent of the
Company upon notice to the Members.
3. Business.
The
business and purpose of the Company and each separate and distinct investment
portfolio of the Company (each, a “Series”) established by a writing (which
includes this Agreement) signed by the Managing Member under and in accordance
with the provisions of Section 6, pursuant to which the Managing Member
establishes a Series (“Authorizing Resolution”), is to trade, buy, sell or
otherwise acquire, hold or dispose of commodities, including futures and forward
contracts, options contracts, swap agreements and other derivative instruments
and any other rights pertaining thereto, so as to replicate, to the extent
reasonably practicable within the discretion of the Managing Member, the
component commodity positions of the Xxxxxx International Commodity Index® (the
“Index”) or a specific sub-sector of the Index (each, a “Sub-Index”), unless
otherwise provided in an Authorizing Resolution.
Unless
otherwise provided in an Authorizing Resolution, the Company and each Series
shall have the following purposes, through their respective trading
activities:
(a) to
purchase, sell, write and invest and trade in, within or without the United
States, on margin or otherwise, commodities, commodity futures and forward
contracts, rights and options, including puts and calls, and swap agreements and
other derivative instruments with respect to commodities and commodity futures
and forward contracts (collectively, “Commodity Interests”), including the
making and covering of short sales of Commodity Interests;
(b) to
purchase, sell and invest in all manner of physical and “spot” market
commodities within and without the United States;
(c) to
purchase, sell, write and invest and trade in, within and without the United
States, on margin or otherwise, foreign currencies, foreign currency futures
contracts, foreign currency forward
A-2
contracts
and rights and options relating thereto (collectively, “Currency Interests”),
including the making and covering of short sales of Currency
Interests;
(d) to
purchase, sell, write and invest and trade in, within and without the United
States, on margin or otherwise, government and government agency bonds,
debentures, notes, letters of credit, bankers’ acceptances, commercial paper,
other securities, rights and options, including puts and calls, with respect to
any of the foregoing (collectively, “Securities”);
(e) to engage
in any form of trading or investment activity within or without the United
States which the Managing Member deems appropriate, without restriction or
limitation, in furtherance of the Company’s and each Series’ business of
replicating the component commodity positions of the Index and each Sub-Index,
as the case may be, and to refrain from trading or investing in the Managing
Member’s absolute discretion;
(f) to
purchase, sell and invest in United States government securities and financial
investments including money market obligations; and
(g) to engage
in any other lawful act or activity within or without the United States for
which limited liability companies may be organized under the laws of the State
of Delaware.
The
Company and each Series shall have the power to enter into, make and perform all
contracts and other undertakings, and engage in all activities and transactions
as may be necessary or advisable to the carrying out of the foregoing purposes,
including, without limitation, the power:
(aa) to
borrow money from banks, brokers or any of the Members, and to secure the
payment of any obligations of the Company or any Series by hypothecation or
pledge of all or part of the assets of the Company or any Series;
(bb) to
exercise all rights, powers, privileges and other incidents of ownership or
possession with respect to the assets of the Company or any Series;
(cc) to
open, maintain and close bank, brokerage and other accounts;
(dd) to
maintain one or more offices within or without the State of Illinois and in
connection therewith to rent or acquire office space, engage personnel and do
such other acts as the Managing Member may deem to be advisable or necessary in
connection with such offices and personnel; and
(ee) to
take such actions as the Managing Member may deem to be necessary or advisable
in connection with the foregoing, including the retention of agents, independent
contractors, attorneys, accountants, administrators, selling agents and
investment counselors, including commodity trading advisors, and the preparation
and filing of all tax returns with respect to the Company and each
Series.
4. Term;
Dissolution; Fiscal Year.
(a) Term.
The
Company commenced on the day on which the Certificate of Formation was filed
with the Secretary of State of the State of Delaware pursuant to the provisions
of the Act and whose existence shall continue until the Certificate of Formation
is canceled. The Certificate of Formation shall be canceled at the
time and in the manner prescribed by Section 18-203 of the Act. The
existence of each Series shall commence upon the effective date of the
Authorizing Resolution establishing such Series, as provided in
A-3
Section
6, and shall continue until such Series is terminated and wound up as provided
in subsection (b) below.
(b) Dissolution.
The
Company shall be dissolved upon the first to occur of the following events, and,
except as otherwise required by the Act or other applicable law, no other event
shall cause the dissolution of the Company: (i) the Managing Member declares in
writing that the Company shall be dissolved and gives notification thereof to
the Members; (ii) withdrawal, insolvency, bankruptcy or dissolution of the
Managing Member; provided, however, that no event shall cause the dissolution of
the Company if at the time of such event there is at least one other managing
member of the Company and such other managing member carries on the business of
the Company (it being understood and agreed that this Agreement shall be deemed
to permit the business of the Company to be carried on by such other managing
member); or (iii) the entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Act.
A Series
shall be terminated upon the first to occur of the following events, and, except
as otherwise required by the Act or other applicable law, no other event shall
cause the termination of a Series: (i) the dissolution of the Company; (ii) an
event set forth as an event of termination of such Series in the Authorizing
Resolution establishing such Series; (iii) the Managing Member declares in
writing that such Series shall be terminated and gives notification thereof to
all Members of such Series; or (iv) the entry of a decree of judicial
dissolution of such Series under Section 18-215(l) of the Act.
Dissolution,
payment of creditors and distribution of the assets of the Company or the
relevant Series shall be effected in accordance with the Act, and the Managing
Member and each Member (and any assignee to which the Managing Member has
consented) shall share in the assets of each Series pro rata in the ratio of the
total of each Member’s capital account in each Series to the total of all
Members’ capital accounts in each Series, less any amount owed by such Member
(or assignee) to the Company or any Series. Members shall be entitled
to participate on dissolution only in the assets of the Series in which they
were entitled to participate during the operation of the Series.
Nothing
in this section shall impair the right of Members holding limited liability
company interests (“Interests”) in the Company with an aggregate Net Asset Value
exceeding 50% of the aggregate Net Asset Value of all Interests then held by
Members to vote within 90 calendar days of foregoing events of dissolution of
the Company to continue the Company on the terms set forth herein, and to
appoint one or more managing members for the Company; provided, further, that
any substitute managing member must assume the Managing Member’s obligations
under the Company’s licensing arrangement with respect to the
Index.
The
death, incompetence, withdrawal, insolvency or dissolution of a Member shall not
terminate or dissolve the Company, any Series, and such Member, his estate,
custodian or personal representative shall have no right to withdraw or value
such Member’s Interest except as provided in Section 10.
(c) Fiscal
Year.
The
fiscal year of the Company and each Series shall begin on January 1 (except for
the first fiscal year which, with respect to the Company, began upon formation
of the Company and with respect to any Series, will begin upon execution by the
Managing Member of the Authorizing Resolution relating to such Series) and end
on December 31 of each year.
A-4
5. Capital
Contributions and Capital Accounts.
(a) Members’
Contributions.
The
Managing Member shall maintain a sufficient investment in the Company and each
Series for the Company and each Series to be treated as a partnership for
federal income tax purposes, which amount may be $0. Each Member
shall contribute cash to the relevant Series, which shall constitute the initial
balance of such Member’s capital account. The Managing Member shall
have discretion to accept other assets valued at fair market
value. The aggregate of all contributions with respect to a Series
shall be available to such Series to carry on its business and no interest shall
be paid on any such contribution.
(b) Offering of Limited
Liability Company Interests.
The
Interests shall be offered and sold exclusively on a private
basis. The Managing Member may limit or terminate the offering at any
time, and, subject to the restrictions set forth in the preceding sentence,
Interests may be sold in such manner as the Managing Member may
determine.
The
minimum initial capital contribution of a Member shall be $50,000; subsequent
capital contributions shall be in $10,000 minimum amounts. The
Managing Member may, in its absolute discretion, accept or reject subscriptions,
in whole or in part, and waive the minimum investment amounts. Such investment
can be made effective the close of business on the last day of trading of a
calendar month, on the later of (i) five business days following the receipt by
the Managing Member of all appropriate subscription documents and any other
documents requested by the Managing Member in its sole discretion; and (ii)
three business days following receipt by the Managing Member of good funds
representing the investment by check or wire transfer or at such other time as
the Managing Member, in its absolute discretion, may determine.
(c) Limited Liability of
Members.
The
Interests in the Company shall consist exclusively of Interests of beneficial
ownership in the relevant Series. No person who is a Member of a
particular Series shall have any interest in any other Series unless such person
is also a Member of such other Series.
No Member
shall be liable for obligations of a Series in any amount in excess of the
capital contributed by him to such Series, plus his share of profits
attributable to such Series, if any, plus his share of undistributed profits and
assets of such Series, including his obligation, as required by law and Section
10(g), under certain circumstances to return to such Series distributions and
returns of contributions. Each Member hereby agrees with the Managing
Member that, upon written demand therefor by the Managing Member, such Member
will promptly return to the relevant Series to which such Member has contributed
capital all amounts for which such Member may be liable to such Series or its
creditors under the Act.
(d) Return of Members’ Capital
Contributions.
Except to
the extent that a Member shall be entitled to withdraw capital from his capital
account(s) in accordance with the terms of this Agreement, no Member shall have
any right to demand the return of his capital contribution(s) or any profits
added thereto, except upon termination and dissolution of the Series to which he
has contributed capital. In no event shall a Member be entitled to
demand property other than cash.
A-5
(e) Contributions by Employee
Benefit Plans and Plan Assets Entities.
(i) Investment in Accordance
with Law.
Each
Member that is, or is investing assets on behalf of, an “employee benefit plan,”
as defined in and subject to the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), or a “plan,” as defined in and subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the “Code”) (each such
employee benefit plan and plan, a “Plan”), and each fiduciary thereof who has
caused the Plan to become a Member (a “Plan Fiduciary”), represents and warrants
that (a) the Plan Fiduciary has considered an investment in the relevant Series
for such Plan in light of the risks relating thereto; (b) the Plan Fiduciary has
determined that, in view of such considerations, the investment in such Series
for such Plan is consistent with the Plan Fiduciary’s responsibilities under
ERISA; (c) the investment in such Series by the Plan does not violate and is not
otherwise inconsistent with the terms of any legal document constituting the
Plan or any trust agreement thereunder; (d) the Plan’s investment in such Series
has been duly authorized and approved by all necessary parties; (e) none of the
Managing Member, any administrator of the Company, Price Futures Group, Inc.,
Uhlmann Price Securities, LLC, Man Financial Inc., Citibank, Xxxxxxx Xxxxxx
& Co., P.C., Beeland Management Co., L.L.C., any marketing representative,
any selling agent, any of their respective affiliates or any of their respective
agents or employees: (i) has investment discretion with respect to
the investment of assets of the Plan used to purchase Interests; (ii) has
authority or responsibility to or regularly gives investment advice with respect
to the assets of the Plan used to purchase Interests for a fee and pursuant to
an agreement or understanding that such advice will serve as a primary basis for
investment decisions with respect to the Plan and that such advice will be based
on the particular investment needs of the Plan; or (iii) is an employer
maintaining or contributing to the Plan; and (f) the Plan Fiduciary (i) is
authorized to make, and is responsible for, the decision for the Plan to invest
in such Series, including the determination that such investment is consistent
with the requirement imposed by Section 404 of ERISA that Plan investments be
diversified so as to minimize the risks of large losses; (ii) is independent of
the Managing Member, any administrator of the Company, Price Futures Group,
Inc., Uhlmann Price Securities, LLC, Man Financial Inc., Citibank, Xxxxxxx
Xxxxxx & Co., P.C., Beeland Management Co., L.L.C., each marketing
representative, each selling agent and each of their respective affiliates; and
(iii) is qualified to make such investment decision.
(ii) Disclosures and Restrictions
Regarding Benefit Plan Investors.
Each
Member that is a “benefit plan investor” (defined as any Plan and any entity
(“Plan Assets Entity”) deemed for any purpose of ERISA or Section
4975 of the Code to hold assets of any Plan) represents that the individual
signing the Subscription Agreement and Power of Attorney on behalf of such
Member has disclosed such Member’s status as a benefit plan investor by checking
“Yes” in the applicable question in the Subscription Agreement and Power of
Attorney. Each Member that is not a “benefit plan investor”
represents and agrees that if at a later date such Member becomes a benefit plan
investor, such Member will immediately notify the Managing Member of such change
of status. In addition, each Plan Assets Entity agrees to promptly
provide information to the Managing Member, upon the Managing Member’s
reasonable request, regarding the percentage of the Plan Assets Entity’s equity
interests held by benefit plan investors. Notwithstanding anything herein to the
contrary, the Managing Member, on behalf of the Company and any one or more of
any Series, may take any and all action including, but not limited to, refusing
to admit persons as Members of a Series or refusing to accept additional capital
contributions to such Series and requiring the withdrawal of the Interests of
any Member of such Series in accordance with Section 10(c) hereof, as may be
necessary or desirable to assure that at all times less than twenty-five percent
(25%) of the total value of each “class of equity interests in such Series,” as
determined pursuant to United States Department of Labor Regulation Section
2510.3-101 and Section 3(42) of ERISA, is held by benefit plan investors (not
including capital
A-6
accounts
of the Managing Member, any person who provides investment advice for a fee
(direct or indirect) with respect to such Series and individuals and entities
(other than benefit plan investors) that are “affiliates,” as such term is
defined in the applicable regulation promulgated under ERISA, of any such
person) or to otherwise prevent such Series from holding “plan assets” under
Section 3(42) of ERISA.
6. Series
of the Company.
(a) Establishment of
Series.
Subject
to the provisions of this Agreement, the Managing Member may, at any time and
from time to time, by Authorizing Resolution, establish one or more Series and
authorize the issuance of Interests in such Series. The Authorizing
Resolution establishing one or more Series shall relate solely to the Series
established thereby and shall not be construed: (i) to affect the
objectives, policies, restrictions and limitations in respect of the investments
of any other Series, or (ii) to designate, fix or determine the rights, powers,
authority, privileges, preferences, duties, responsibilities, liabilities and
obligations in respect of Interests in any other Series, or the Members
thereof.
The
Authorizing Resolution establishing a Series shall: (i) specify a name or names
under which the business and affairs of such Series may be conducted; (ii) set
forth, either expressly or by reference to another document or documents, the
objectives, policies, restrictions and limitations in respect of the investments
of such Series; (iii) designate, fix and determine the relative rights, powers,
authority, privileges, preferences, duties, responsibilities, liabilities and
obligations in respect of Interests in such Series and the Members thereof (to
the extent such terms differ from those set forth herein); and (iv) be effective
as of the date specified therein (it being understood and agreed that, upon such
effective date, the Series described in such Authorizing Resolution shall be
deemed to have been established and the Interests in such Series shall be deemed
to have been authorized in accordance with the provisions
thereof). The Authorizing Resolution establishing a Series may set
forth specific provisions governing the rights of such Series against a Member
of such Series who fails to comply with the applicable provisions of this
Agreement (including, for the avoidance of doubt, the applicable provisions of
such Authorizing Resolution) or such Member’s Subscription Agreement and Power
of Attorney.
Series
may differ in terms of investment objective and trading strategy, fees,
permitted subscription and withdrawal dates and notice periods, minimum
aggregate subscription amounts, investor eligibility requirements, legal
restrictions, and in other respects.
(b) Assets and Liabilities
Associated with a Series.
(i) Assets Associated with a
Series.
All
consideration received by the Company for the issuance or sale of Interests in a
particular Series, together with all assets in which such consideration is
invested or reinvested, and all income, earnings, profits and proceeds thereof,
from whatever source derived, including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds, in whatever form the same may be, shall,
subject to the provisions of this Agreement, be held for the benefit of the
Members of such Series, and not for the benefit of the Members of any other
Series, for all purposes, and shall be accounted for and recorded upon the books
and records of the Company separately from General Assets (defined below) and
any assets associated with any other Series. Such consideration, and
such assets, income, earnings, profits, proceeds, funds and payments, are herein
referred to as “assets associated with” that Series.
A-7
In the
event that there are any assets, income, earnings, profits and/or proceeds
thereof, and/or any funds or payments derived from the reinvestment of such
proceeds, that, in the Managing Member’s reasonable judgment, are not readily
associated with a particular Series (collectively, “General Assets”), the
Managing Member may allocate such General Assets to, between or among any one or
more of the Series, in such manner and on such basis as the Managing Member
deems fair and equitable, and any General Asset so allocated to a particular
Series shall thereupon cease to be a General Asset and shall be deemed to be an
asset associated with that Series. Each allocation by the Managing
Member pursuant to the provisions of this Section 6(b)(i) shall be conclusive
and binding upon the Members of all Series.
(ii) Liabilities Associated with
a Series.
All
debts, liabilities, expenses, costs, charges, obligations and reserves incurred
by, contracted for other otherwise existing with respect to a particular Series
shall be charged against the assets associated with that Series. Such debts,
liabilities, expenses, costs, charges, obligations and reserves are herein
referred to as “liabilities associated with” that Series.
In the
event that there are any debts, liabilities, expenses, costs, charges,
obligations or reserves incurred, contracted for or otherwise existing in
relation to the Company that, in the Managing Member’s reasonable judgment, are
not readily associated with a particular Series (collectively, “General
Liabilities”), the Managing Member may allocate and charge (and, in the case of
indemnification obligations that constitute General Liabilities, shall allocate
and charge) such General Liabilities to, between or among any one or more of the
Series, in such manner and on such basis as the Managing Member deems fair and
equitable, and any General Liability so allocated and charged to a particular
Series shall thereupon cease to be a General Liability and shall be deemed to be
a liability associated with that Series. Each allocation by the
Managing Member pursuant to the provisions of this Section 6(b)(ii) shall be
conclusive and binding upon the Members of all Series.
All
liabilities associated with a Series shall be enforceable against the assets
associated with that Series only, and not against the assets associated with any
other Series (or against any General Assets), and except to the extent set forth
above, no General Liabilities shall be enforceable against the assets associated
with any Series. The Managing Member has caused notice of this limitation on
interseries liabilities to be set forth in the Certificate of Formation, and,
accordingly, the statutory provisions of Section 18-215(b) of the Act relating
to limitations on interseries liabilities (and the statutory effect under
Section 18-207 of the Act of setting forth such notice in the Certificate of
Formation) shall apply to the Company and each Series.
Notwithstanding
any other provision of this Agreement, no distribution on or in respect of
Interests in a particular Series, including, for the avoidance of doubt, any
distribution made to a Member in connection with any withdrawal from such
Member’s capital account in such Series permitted or required under the
provisions of this Agreement and any distribution made in connection with the
winding up of such Series, shall be effected by the Company other than from the
assets associated with that Series, nor shall any Member or former Member of a
Series otherwise have any right or claim against the assets associated with any
other Series (except to the extent that such Member or former Member has such a
right or claim hereunder as a Member or former Member of such other Series or in
a capacity other than as a Member or former Member).
(c) Ownership of Series
Property.
Title to
and beneficial interest in Series Property (as defined below) shall be deemed to
be held and owned by the Company or the relevant Series, and no Member or
Members of such Series, individually or collectively, shall have any title to or
beneficial interest in specific Series Property or any
A-8
portion
thereof. Each Member of a Series irrevocably waives any right that it
may have to maintain an action for partition with respect to its interest in the
Company, any Series or any Series Property.
Any
Series Property may be held or registered in the name of the Company or the
relevant Series, the name of the Managing Member, the name of a nominee, or in
“street name,” as the Managing Member may determine; provided, however, that (i)
any Series Property for which legal title is held in the name of the Managing
Member shall be held by the Managing Member for the use and benefit of the
Company or the relevant Series in accordance with the provisions of this
Agreement and (ii) Series Property shall be recorded as the property of the
Company or the relevant Series on the Company’s books and records, irrespective
of the name in which legal title to such Series Property is held.
Any
corporation, brokerage firm or transfer agent called upon to transfer any assets
to or from the name of the Company or any Series shall be entitled to rely upon
instructions or assignments signed or purporting to be signed by the Managing
Member or its agents without inquiry as to the authority of the person signing
or purporting to sign such instruction or assignment or as to the validity of
any transfer to or from the name of the Company or such Series.
For
purposes of this Agreement, “Series Property,” at any particular time, means all
interests, properties (whether tangible or intangible, and whether real,
personal or mixed) and rights of any type contributed to or acquired by any one
or more of the Series and owned or held by or for the account of any one or more
of the Series, whether owned or held by or for the account of any one or more of
the Series as of the date of the formation or establishment thereof or
thereafter contributed to or acquired by any one or more of the
Series.
(d) Establishment of Initial
Series.
Without
limiting the authority of the Managing Member to establish and designate any
further Series by Authorizing Resolution, the Managing Member hereby establishes
and designates the following Series in the Company, as follows:
(i) RICI®
Linked - XXX Total Index Series;
(ii)
RICI® Linked - XXX Energy Sector Series;
(iii) RICI®
Linked - XXX Agricultural Sector Series; and
(iv) RICI®
Linked - XXX Metals Sector Series.
The terms
and conditions for each Series established pursuant to this Section 6(d) shall
be as set forth in this Agreement, the Subscription Agreement and Power of
Attorney for the Interests in the Series and in the Company’s offering document
describing the Series established hereby approved by the Managing
Member.
7. Allocation
of Profits and Losses.
(a) Capital
Accounts.
The
Managing Member shall cause each Series to establish and maintain for each
Member of a Series, a capital account. The initial balance of each
Member’s capital account shall be the amount of his initial contribution to a
Series. Subsequent capital contributions may be added to such
Member’s capital account for such Series as of the last day of the month as
provided in Section 5(b).
A-9
(b) Monthly and Yearly
Allocations.
As of the
close of business (as determined by the Managing Member) of the last day of each
month or of the fiscal year, as the case may be, the following determinations
and allocations shall be made:
(1) The Net
Assets (as defined in Section 7(d)) of each Series before deduction of the
Management Fee (as defined below) and any Servicing Fee (as defined below) shall
be determined.
(2) Subject
to subparagraph (3) and (5), any increase or decrease in Net Assets of a Series
as of the end of the month, before deduction of Management Fees (as defined
below) payable to the Managing Member pursuant to Section 7(f) and Servicing
Fees (as defined below) payable to such Member’s selling agent pursuant to
Section 7(g) if applicable, shall be credited or charged to the capital accounts
of each Member in the ratio that the balance of each account bears to the
balance of all accounts with respect to such Series.
(3) Management
Fees payable by each Series to the Managing Member pursuant to Section 6(f)
shall be charged pro
rata to the capital accounts of the Members with respect to such
Series.
(4) The
amount of any distribution to a Member, any amount paid to a Member on
withdrawal of all or a portion of an Interest, or the amount of any withdrawal
by the Managing Member shall be charged to that Member’s capital account with
respect to such Series.
(5) The
amount of any Servicing Fees deducted from a Member’s capital account and paid
to such Member’s selling agent pursuant to Section 7(g) hereof shall be charged
to that Member’s capital account with respect to such Series.
(c) Allocation of Profit and
Loss for Federal Income Tax Purposes.
(i) Each
Series’ income and expense and capital gain or loss from its investment and
trading operations shall be allocated among the Members pursuant to the
following subparagraphs for federal income tax purposes. Allocations
shall be pro rata from (i) short-term gain or loss, (ii) long-term capital gain
or loss and (iii) operating income or loss realized and recognized by such
Series.
(1) Items of
income gain, loss, deduction and expense shall be allocated pro rata among the
Members based on their respective capital accounts as of the last day of each
month or of the fiscal year, as the case may be, in which such items accrue,
after taking into account the allocation of Management Fees and Servicing Fees
(if any) attributable to such Member.
(2) Any gain
or loss required to be taken into account in accordance with Section 1256 of the
Code shall be considered a realized gain or loss for purposes of this Section
7(c).
(3) In the
event that an Interest has been assigned, the allocations prescribed by this
Section 7(c) shall be made with respect to such Interest without regard to the
assignment, except that in the year of assignment the allocations prescribed by
this Section 7(c) shall be divided between the assignor and the assignee based
on the number of months each held the
A-10
assigned
Interest.
(4) The
allocations set forth in this Section 7(c) are intended to allocate taxable
profit and loss among Members generally in the ratio and to the extent that net
profit and net loss are allocated under Section 7(b) so as to eliminate, to the
extent possible, any disparity between a Member’s capital account and his tax
basis account with respect to each Interest then outstanding, consistent with
the principles set forth in Section 704(b) of the Code and the Treasury
Regulations promulgated thereunder.
(5) Notwithstanding
anything herein to the contrary, in the event that at the end of any taxable
year, any Member’s tax basis is adjusted for, or such Member is allocated, or
there is distributed to such Member, any item described in Treasury Regulation
Section 1.704-(b)(2)(ii)(d)(4), (5) or (6) in an amount not reasonably expected
at the end of such year, and such treatment creates a deficit balance in such
Member’s tax basis, then such Member shall be allocated all items of income and
gain of a Series for such year and for all subsequent taxable years of such
Series until such deficit balance has been eliminated. In the event
that any such unexpected adjustments, allocations or distributions create a
deficit balance in the tax basis accounts of more than one Member in any taxable
year, all items of income and gain of a Series for such taxable year and all
subsequent taxable years shall be allocated among all such Members in proportion
to their respective deficit balances until such deficit balances have been
eliminated. Upon the dissolution and termination of a Series, the
Managing Member must contribute to a Series an amount equal to any deficit
balance in its tax basis account. This paragraph is intended to
constitute a “qualified income offset” within the meaning of Treasury Regulation
Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent
therewith. Under no circumstances shall any Member be obligated to a
Series to restore any deficit balance in his tax basis account.
(d) Definition of “Net Assets” or “Net Asset
Value.”
Net
assets associated with a Series shall mean the sum of all cash, plus U.S.
Treasury bills or other securities at cost plus accrued interest, plus the
liquidating value of all open commodity positions maintained by the Series, less
all liabilities of the Series determined in accordance with generally accepted
accounting principles under the accrual basis of accounting. The
liquidating value of a futures or forward or swap (or other over-the-counter
derivative) contract traded on an exchange, or through a clearing firm of an
exchange, or through a bank or other forward or derivative dealer, shall mean
the most recent available closing quotation on the exchange, clearing firm or
bank or other forward or derivative dealer on or through which the contract is
traded by the Series; provided that if a contract cannot be liquidated as of the
end of a month due to operation of daily limits, the liquidating value of the
contract on the first subsequent day on which the contract could be liquidated
shall be deemed to be the liquidating value of the contract.
(e) Expenses;
Reserves.
Each
Series will bear all expenses incurred in connection with its trading
activities, including all brokerage commissions on commodity futures and options
trades and brokerage commissions, spreads and xxxx-ups on forward and other
derivative transactions, insurance and custody costs and expenses (if any), and
direct operating expenses, including legal, accounting, administrative expenses,
audit and tax preparation expenses, expenses associated with the administration
of a Series, printing and mailing costs, government fees and any other operating
expenses. Each Series will be responsible for the taxes, if any,
imposed on it (as opposed to those imposed on Members in respect of their
investments). In addition, a Series may be required to pay certain
extraordinary charges incidental to its trading or the cost of any
A-11
litigation
in which the Series may become engaged. Any expenses of the Company
as whole, and not specific to any Series, will be allocated ratably among the
Series. For purposes of determining the amount of the liabilities associated
with a Series, the Managing Member may estimate expenses that are incurred on a
regular or recurring basis over yearly or other periods and treat the amount of
any such estimate as accruing in equal proportions over any such period. The
Managing Member shall provide the Company’s office at no expense to the Company
and shall be responsible for the Managing Member’s own overhead
costs.
As
described in Section 10(b), withdrawals from any Series made prior to the end of
the sixth full calendar month following a Member’s initial investment in such
Series are subject to a withdrawal charge, payable to the Series, equal to 1% of
the amount withdrawn, provided that such charge will not apply if the withdrawal
is a deemed withdrawal resulting from a request to exchange Interests in an
Existing Series to a New Series. The Managing Member may waive such charge in
its sole discretion but generally does not anticipate doing so. The
withdrawal charge will not apply with respect to amounts withdrawn from one
Series and invested in another Series (in a single exchange
transaction).
The
Managing Member will advance the costs incurred in connection with the
organization and initial offering of the Company and each
Series. These organizational and initial offering expenses will be
borne by the Series and allocated among them pro rata on the basis of each
Series’ Net Asset Value at the date of commencement of trading operations. The
Company and each Series will reimburse the Managing Member for organization and
initial offering costs advanced, provided, however, that if no Series commences
trading operations, the Company’s organization and initial offering costs will
be borne by the Managing Member. Each Series will amortize its share of the
Company’s organization and initial offering costs on a monthly basis over the
thirty-six month period commencing with the end of its Initial Offering Period
for subscription and withdrawal Net Asset Value purposes. If such
costs are material and cause a qualified opinion to be issued by the Company’s
auditors, the Company may expense such costs in full for financial reporting
purposes.
The
Managing Member may from time to time establish such reserves as the Managing
Member may determine to reflect contingent, uncertain, established or other
potential liabilities. Reserves shall reduce the relevant Series’ Net
Assets, and when reserves are reversed the remaining balance shall increase the
relevant Series’ Net Assets; provided, that the Managing Member may determine,
in its sole discretion, to allocate reversals of a reserve to the Members not at
the time of the applicable reversal but rather at the time such reserve was
established. In addition to reserves described above, the Managing
Member may, at the time that any withdrawal is made by a Member, establish
reserves with respect to such withdrawal in an attempt to ensure that the
relevant Series is not adversely affected by such withdrawal.
(f) Managing Member’s Management
Fee.
Except as
otherwise provided in an Authorizing Resolution, each Series will pay to the
Managing Member in respect of each Member in the Series, monthly in arrears, a
fee equal to 0.054167 of 1% of the month-end net asset value of each Member’s
capital account in the Series (a 0.65% annual rate) (“Management
Fee”). The Managing Member’s capital account is not subject to the
Management Fee. The Managing Member may waive or reduce its
Management Fee in respect of any Member without entitling any other Member to a
similar waiver or reduction.
(g) Servicing
Fee.
Members
that are introduced and recommended by approved investment advisers registered
with the Securities and Exchange Commission will not be charged the Servicing
Fee (as defined below).
A-12
Members
introduced to the Company by their selling agents will be charged a monthly
servicing fee of up to 1% per annum as agreed, or as otherwise agreed between
the investor and such investor’s selling agent (the “Servicing
Fee”). The Servicing Fee will be deducted from a Member’s capital
account and paid to such Member’s selling agent monthly in arrears based on the
month-end Net Asset Value of such Member’s capital account in a Series. Members
introduced to the Company by selling agents may also be charged an up-front
sales commission.
8. Duties
of the Managing Member.
(a) Management
of the Company.
The
Managing Member, to the exclusion of the Members, shall conduct and manage the
business of the Company. The Managing Member shall be considered a
“manager” of the Company and a “manager” of each Series within the meaning of
Section 18-101(10) of the Act.
The
Managing Member shall possess and may exercise full, complete and exclusive
right, power and authority to manage and conduct the business and affairs of the
Company and each Series, including but not limited to, making all investment
decisions regarding the Company and each Series and taking all actions to effect
the purpose of the Company and each Series as set forth in Section
3. No person dealing with the Managing Member shall be required to
determine its authority to make any undertaking on behalf of the Company or a
Series, nor to determine any fact or circumstances bearing upon the existence of
its authority.
Although
nothing herein shall require the Managing Member to devote its full time or any
material portion of its time to the Company or any Series, the Managing Member
shall use reasonable efforts to further the businesses, purposes and activities
of the Company and any Series and to devote to such businesses, purposes and
activities such of its time and activity (and the time and activity of its
employees) during normal business days and hours as it shall reasonably
determine to be necessary for the Company and any Series to achieve their
respective business objectives; provided, however, that nothing contained in
this Section 8 shall preclude the Managing Member, any affiliate of the Managing
Member and any member, partner, shareholder, director, officer, employee or
agent of the Managing Member or any such affiliate from acting, consistent with
the foregoing, either individually or as a member, partner, shareholder,
director, trustee, officer, official, employee or agent of any entity, in
connection with any type of enterprise (whether for or not for profit),
regardless of whether the Company, any Series or the Managing Member has
dealings with or invests in such enterprise. No Member shall, by
reason of any provision of this Agreement or the Managing Member’s carrying out
the businesses, purposes and activities of the Company and the Series, be
entitled to any interest, economic or otherwise, in any such
enterprise.
(b) Services
of Third Parties.
The
Managing Member may engage and compensate on behalf of the Company and any
Series from funds of the Company or any Series such persons, firms or
corporations, including any affiliates of the Managing Member or any other
person or entity, as the Managing Member in its sole judgment shall deem
advisable for the conduct and operation of the business of the Company or any
Series.
(c) Limitation
on Commodity Activity of the Managing Member.
In no
case shall the Managing Member or any of its principals take advantage of their
knowledge of trades made or contemplated on behalf of a Series for their own
trading; nor shall they knowingly trade in any manner to the detriment of a
Series, either directly or indirectly, or in any manner take any
A-13
advantage
of their position with respect to any Series. Direct trading between
a Series and any account of or managed by the Managing Member or any of its
principals is prohibited.
9. Records;
Reports to Members.
The
Managing Member shall cause the Company to maintain complete and accurate books
and records of the business of the Company, which shall include separate and
distinct books and records for each Series. The Managing Member shall
keep and retain such books and records relating to the business of the Company
and each Series as the Managing Member may deem necessary or advisable and as
may be required by applicable law. The Company’s books shall be audited annually
by an independent certified public accountant. The Managing Member
will use its best efforts to cause each Member to receive as soon as practicable
after the close of each fiscal year certified financial statements of the
Company (reflecting each Series) for the fiscal year then ended. In
addition, the Managing Member will report at least monthly to the Members the
performance of each Series of which such Member is a Member for the preceding
calendar month and year-to-date, the value of each Member’s Interest, and such
other information as the Managing Member may deem appropriate and as may be
required by applicable law.
Unless
otherwise agreed with the Members, reports by the Managing Member to the Members
shall be in writing and shall be sent by first class mail to the last known
address of each Member.
10. Non-Assignability of Interests;
Withdrawals; Exchanges; Distributions; Suspensions; Chargebacks to Current
or Former Members; No
Guarantee of Return of Capital.
(a) Non-Assignability of the
Limited Liability Company Interests.
Each
Member expressly agrees that he (i) is purchasing an Interest in a Series for
investment and not with a view to the assignment, transfer or disposition of
such Interest and (ii) will not assign, transfer, pledge or otherwise dispose
of, by gift or otherwise, any part of such Interest or any part or all of his
right, title and interest in the capital or profits of a Series without giving
written notice of the assignment, transfer or disposition to the Managing Member
that the proposed assignment, transfer or disposition is exempt from
registration under the Securities Act of 1933, as amended, and receiving the
prior written consent of the Managing Member; provided further that any such
assignee make any required representations and meet any eligibility requirements
as required by the Managing Member. No assignee, except with the
consent of the Managing Member (which consent may be withheld at its sole and
absolute discretion), may acquire any rights against the Company or any
Series. If an assignment, transfer or disposition occurs by reason of
the death of a Member or assignee, or by operation of law, such written notice
may be given by the duly authorized representative of the Member or assignee and
shall be supported by such proof of legal authority and valid assignment as may
reasonably be requested by the Managing Member. The Managing Member
need not, however, consent to any such assignment, but may elect instead to
require the mandatory withdrawal of any Interest that would otherwise be
assigned by operation of law.
Each
Member agrees that with the consent of the Managing Member any assignee may
become a substituted Member without the further act or consent of any
Member. A substituted Member shall have all rights and powers and
shall be subject to all the restrictions and liabilities of his assignor except
as described in the Act. An assigning Member shall remain liable to
the Company and the Series of which he is a Member as provided in the Act,
regardless of whether his assignee becomes a substituted Member.
A-14
(b) Withdrawal
of Capital.
Except as
otherwise provided in an Authorizing Resolution, a Member (or any assignee
thereof) may require a Series to withdraw some or all of his capital account
effective as of the end of any month on at least five business days after a
request for withdrawal in acceptable form has been delivered to the Managing
Member; provided, however, that a withdrawal charge, payable to the relevant
Series, equal to 1% of the amount withdrawn shall apply to amounts withdrawn by
a Member prior to the end of the sixth full calendar month following the date
upon which such Member first invested in the relevant Series, provided that such
charge will not apply if the withdrawal is a deemed withdrawal resulting from a
request to exchange Interests in an Existing Series to a New
Series.
Upon
withdrawal, a Member (or any assignee thereof) shall receive an amount in cash
or in kind equal to the value of the Interest withdrawn as of the effective date
of withdrawal, less any amount owing by such Member (and his assignee, if any)
to the relevant Series as provided herein. An assignee shall not be
entitled to withdrawal until the Managing Member has received written notice of
and has consented to (as described in subparagraph (a) above) the assignment,
transfer or disposition under which the assignee claims an interest in the
Interest to be withdrawn and shall have no claim against any Series or the
Managing Member with respect to distributions or amounts paid on withdrawal of
Interests prior to the receipt by the Managing Member of such
notice. Payment will be made within a reasonable time of the date of
withdrawal. Subject to the provisions below, a Series may delay
payment to Members requesting withdrawal of Interests of the proportionate part
of the value of the Interests represented by the sums which are the subject of
such delay.
Withdrawal
proceeds will be paid within a reasonable time after the withdrawal date. A
delay in payment of withdrawal proceeds may occur under special circumstances,
including but not limited to, default or delay in payments due to a Series from
futures brokers, cash managers, custodians, banks or other persons, market
factors or other considerations. No interest shall be paid on such
delayed payments.
No
withdrawal shall be effective if, on or before the scheduled withdrawal date,
the Company or a Series dissolves or the Managing Member gives notice of its
intention to dissolve the Company or a Series. Any withdrawal notices
pending at the time that the Managing Member determines to dissolve the Company
or a Series shall be rescinded ab initio and have no further force or
effect.
No Member
shall have the right to demand or receive property other than cash upon
withdrawal of all or part of such Member’s capital account.
(c) Compulsory
Withdrawal.
Any
Member may, at any time, for any reason and with no advance written notice from
the Managing Member, be required to withdraw as a Member in the Managing
Member’s sole discretion. The Managing Member shall give notice
(which need not be prior notice) to such Member of the date of such compulsory
withdrawal. Upon any such compulsory withdrawal, a Member will
receive the Net Asset Value of his Interest as of the date of
withdrawal. Any such withdrawal shall be treated as, and be subject
to all the limitations of, a voluntary withdrawal of capital as set forth
herein, provided, however, that no withdrawal charge shall be charged on such
compulsory withdrawal.
(d) Exchange of Interests in a
Series.
Investors
may exchange their Interest in one Series (the “Existing Series”) for an
Interest in another Series which has commenced trading operations (or which will
be able to commence its operations at the next occurring month-end considering
such exchange, other similar exchanges, and
A-15
subscriptions
received) (the “New Series”), without fees or penalty, as of the last day of any
month, upon five business days’ prior written notice and submission to the
Managing Member of an Additional Subscription and Exchange Subscription
Agreement. Such exchange will be treated as a withdrawal from the
Existing Series and a subscription for the New Series. An exchange
may be requested for any multiple of $10,000; and the Managing Member may
restrict such an exchange as of the end of a month if such exchange, in the
Managing Member’s sole discretion, would adversely affect the remaining Members
in the Existing Series by, for example, reducing the assets of the Existing
Series to a level below the minimum level at which such Series can effectively
manage its Index or Sub-Index tracking trading operations. If a request for an
exchange is denied by the Managing Member at a certain month-end, the exchange
will be considered at the end of each following month-end, unless the Member
requesting the exchange withdraws the exchange request. Investors may
not effect more than four (4) exchanges during any calendar year.
(e) Distributions.
Distributions
shall be made in the sole discretion of the Managing
Member. Distributions need not be made pro rata to all Members of a
Series based upon their respective capital accounts; provided that the capital
account of each Member of the relevant Series which receives a distribution
shall be correspondingly reduced.
(f) Suspension of the
Determination of Net Assets and Withdrawals.
Anything
herein to the contrary notwithstanding, the Managing Member may suspend the
determination of Net Assets and/or suspend withdrawals of any Series for the
whole or any part of any period during which by reason of: (i) a
withdrawal would result in violation by the Company, any Series, the Managing
Member or any of their respective affiliates of applicable securities or
commodities laws or regulations or any other law of the United States or any
other jurisdiction applicable to the Company, a Series, the Managing Member or
any of their respective affiliates (including but not limited to anti-money
laundering laws and regulations applicable to the Company, any Series, the
Managing Member or any of the other service providers of the Company or any
Series); (ii) any exchange or quotation system on which a significant portion of
the assets of a Series is regularly traded or quoted is closed (other than for
holidays) or trading thereon is generally suspended or limited; (iii) the prices
or values of any assets of a Series cannot reasonably be promptly and accurately
ascertained for any reason; (iv) trading by a Series, any exchange or quotation
system is suspended or limited and the Managing Member determines that such
suspension or limitation is material to such Series; (v) it is not possible to
determine the exact Net Asset Value of a Series; (vi) the Managing Member
determines in its sole discretion that a withdrawal could result in assets of a
Series becoming “plan assets” under ERISA; or (vii) in order to effect orderly
liquidation of the assets associated with such Series necessary to effect
withdrawals. No interest will be paid with respect to amounts affected by
suspension of the determination of Net Assets or withdrawals.
Notice of
any suspension will be given to any Member of a Series who has requested a
withdrawal. If a withdrawal request is not withdrawn by a Member of
such Series following notification of a suspension, the withdrawal will be
completed as of the next month-end following the end of the suspension for such
Series.
(g) Chargebacks
to Current or Former Members.
Even if a
Member has rightfully received the return in whole or in part of his capital
account, whether upon withdrawal or distribution, he shall nevertheless remain
liable to the Company and the relevant Series for any sum, not in excess of the
amount returned, without interest, to the extent necessary to discharge such
Member’s allocable share of any loss, liability or expense attributable to
events arising
A-16
before
such return. Any Member found liable to the Company or a Series under
this Section 10(g) shall also be liable for any and all costs and expenses
incurred by the Company or a Series, including but not limited to attorneys’
fees and costs of litigation, in connection with seeking the return of the
amounts due hereunder.
Each
Member agrees, by subscribing for an Interest, to repay, if such Member has
withdrawn capital or received a distribution from a Series, and,
irrespective of whether such Member remains a Member, to the Series any amount
which the Managing Member may reasonably determine to be due to the Series from
such Member under this Agreement, for example, due to any claims arising (prior
or subsequent to such Member’s withdrawal from a Series) relating to events or
circumstances (whether known or unknown at the time of such Member’s withdrawal)
in existence while such Member was a Member in a Series, or in the event that
the Net Asset Value at which such Member was permitted to withdraw is later
determined to have been overstated or otherwise miscalculated due to
circumstances, whether known or unknown to the Managing Member, in effect as of
the date of such whole or partial withdrawal. In no event shall any
provision of this Section 10(g) require any Member to repay to a Series any
amounts in excess of the amounts distributed to such Member by the relevant
Series or withdrawn from a Series by such Member.
(h) No
Guarantee of Return of Capital.
No
provision of this Agreement shall be construed as guaranteeing the return, by
the Managing Member, the Company or by any Series, of all or any part of the
capital contributions made to a Series by any Member.
11. Special
Power of Attorney.
Each
Member by his execution of this Agreement does hereby irrevocably constitute and
appoint the Managing Member and each principal of the Managing Member, with
power of substitution, as his true and lawful attorney-in-fact, in his name,
place and xxxxx, to execute, acknowledge, swear to (and deliver as may be
appropriate) on his behalf and file and record in the appropriate public offices
and publish (as may in the reasonable judgment of the Managing Member be
required by law): (i) this Agreement, including any amendments
thereto duly adopted as provided herein; (ii) certificates of formation in
various jurisdictions, and amendments thereto, and of assumed name or of doing
business under a fictitious name with respect to the Company or a Series; (iii)
to effect all conveyances and other instruments which the Managing Member deems
appropriate to qualify or continue the Company or any Series in the State of
Delaware and the jurisdictions in which the Company or a Series may conduct
business, or which may be required to be filed by the Company, a Series or the
Members under the laws of any jurisdiction or under any amendments or successor
statutes to the Act, or reflect the dissolution or termination of the Company or
any Series, or the Company or a Series being governed by any amendments or
successor statutes to the Act or to reorganize or refile the Company or any
Series in a different jurisdiction, provided that such reorganization or
refiling does not result in a material change in the rights of the Members; (iv)
to admit additional Members and, to the extent that it is necessary under the
laws of any jurisdiction to file amended certificates or limited liability
company agreements or other instruments to reflect such admission, to execute,
file and deliver such certificates, agreements and instruments; (v) to file,
prosecute, defend, settle or compromise litigation, claims or arbitrations on
behalf of the Company or any Series; and (vi) all conveyances and other
certificates, instruments and other documents that the Managing Member shall
reasonably determine to be necessary, appropriate, advisable or convenient to
reflect the dissolution and winding up of the Company or the termination and
winding up of any Series pursuant to the provisions of this Agreement and the
Act, including a certificate of cancellation of the Certificate of
Formation. The power of attorney granted herein shall be irrevocable
and deemed to be a power coupled with an interest and shall survive and shall
not be affected by the
A-17
subsequent
incapacity, disability or death of a Member. Each Member agrees to be
bound by any representation made by the Managing Member and by any successor
thereto, acting in good faith pursuant to such power of attorney. In
addition to the power of attorney granted hereby, each Member agrees, upon the
request of the Managing Member, to execute one or more special powers of
attorney to the foregoing effect, in form and substance satisfactory to the
Managing Member, on documents separate from this Agreement. In the
event of any conflict between such special powers of attorney and the power of
attorney granted herein or between documents filed pursuant to such power of
attorney and this Agreement, this Agreement shall control.
12. Admission
and/or Substitution of Managing Member; Withdrawal of the Managing
Member.
Additional
or substitute managing members, which may, but need not, be affiliates of Price,
may be admitted and the Managing Member may withdraw, in the sole discretion of
the Managing Member and without the Members’ consent; provided that the Managing
Member shall give 45 days’ prior written notice to all Members of the proposed
admission of any such additional or substitute managing member and, if relevant,
the withdrawal of the Managing Member; provided, further, that any substitute
managing member must assume the Managing Member’s obligations under the
Company’s licensing arrangement with respect to the Index. In
connection therewith, the Managing Member may amend this Agreement to provide
that any one or more of such additional managing members may possess and
exercise any one or more of the rights, powers and authority of the Managing
Member hereunder.
No
additional managing member may be admitted to the Company or any Series at a
time when Price is the managing member of the Company or such Series, unless
Price expressly consents to such admission.
Except as
otherwise provided above, the Managing Member may withdraw as the managing
member of the Company and of each Series at any time following the admission of
a substitute managing member or otherwise upon 90 days’ prior written notice to
the Members. In that case, the Managing Member may withdraw all amounts in its
capital account.
The
Members of a Series shall have no right, power or authority to remove or expel
the Managing Member or cause the Managing Member to withdraw from the Company or
a Series, except to the extent such right, power or authority may be conferred
on them by law.
13. No
Personal Liability for Return of Capital.
The
Managing Member shall not be personally liable for the return or repayment of
all or any portion of the capital or profits of any Member (or assignee), it
being expressly agreed that any such return of capital or profits made pursuant
to this Agreement shall be made solely from the assets (which shall not include
any right of contribution from the Managing Member) of the Company or any
Series.
13. Standard of
Liability and Indemnification.
(a) Standard
of Liability.
The
Managing Member, its affiliates, and any member, partner, shareholder, director,
officer, employee or agent of the Managing Member or any such affiliate
(collectively, the “Managing Member Parties”) shall not be liable, responsible
or accountable in damages or otherwise to the Company, any Series or to any of
the Members, their successors or assigns except by reason of acts or omissions
due to gross negligence or reckless or intentional misconduct.
A-18
(b) Indemnification
of the Managing Member.
The
Company and the relevant Series shall indemnify, defend and hold harmless the
Managing Member Parties from and against any loss, liability, damage, cost or
expense (including legal fees and expenses incurred in defense of any demands,
claims or lawsuits) arising from actions or omissions concerning business or
activities undertaken by or on behalf of the Company or a Series from any
source, including without limitation any demands, claims or lawsuits initiated
by a Member (or assignee) or resulting from or relating to the offer and sale of
Interests; provided that the conduct which was the basis for such liability was
not found by a court of competent jurisdiction upon entry of a final judgment to
be the result of gross negligence or reckless or intentional
misconduct. Nothing contained herein shall increase the liability of
any Member to the Company or any Series beyond the amount of his capital and
profits, if any, in the Company or any Series. All rights to indemnification and
payment of legal fees and expenses shall not be affected by the termination of
the Company or any Series or the withdrawal or insolvency of the Managing
Member.
Indemnification
of amounts reasonably claimed to be due to an indemnified party hereunder shall
be advanced to such party upon such party’s written undertaking to repay,
without interest, the amounts so advanced in the event, and to the extent, that
indemnification is determined not to be due hereunder.
(c) Indemnification
of the Company.
In the
event any Member breaches any provision or condition of this Agreement or
violates any law or regulation applicable to such Member, such Member (or
assignees, cumulatively) shall indemnify and reimburse the Company and/or any
Series for all loss and expense incurred, including reasonable attorneys’ fees,
solely in connection with such breach or violation, as the case may
be.
14. Amendments.
This
Agreement (and, for the avoidance of doubt, any Authorizing Resolution) may be
amended at any time with the consent of the Managing Member and Members owning
Interests in the affected Series or all Series, as the case may be, with an
aggregate Net Asset Value exceeding 50% of the Net Asset Value of all Interests
then held by Members of the affected Series or all Series, as the case may
be. Members of the affected Series or all Series, as the case may be,
may be required to respond in the negative to a proposed amendment within a
certain time period, but not less than 20 calendar days, or be conclusively
deemed to have consented to such amendment. Any such supplemental or
amendatory agreement shall be adhered to and have the same effect from and after
its effective date as if the same had originally been embodied in and formed a
part of this Agreement (and, for the avoidance of doubt, any Authorizing
Resolution); provided, however, that no such supplemental or amendatory
agreement shall, without the written consent of the affected Member, reduce the
capital account of any Member or modify the percentage of profits, losses or
distributions to which any Member is entitled.
The
Managing Member may amend this Agreement (and, for the avoidance of doubt, any
Authorizing Resolution) without the consent of the Members of the affected
Series or all Series, as the case may be, in order (a) to clarify any clerical
inaccuracy, ambiguity or reconcile any inconsistency; (b) to add to the
representations, duties or obligations of the Managing Member or surrender any
right or power of the Managing Member for the benefit of the Members; (c) to
amend this Agreement (and, for the avoidance of doubt, any Authorizing
Resolution) to effect the intent of the allocations proposed herein to the
maximum extent possible in the event of a change in the Code, or the
interpretations thereof affecting such allocations; (d) to attempt to ensure
that the Company and each Series is not taxed as an association for federal
income tax purposes; (e) so as to qualify or maintain the qualification of the
Company as a limited liability company in any jurisdiction; (f) to delete or add
any provision of or to this
A-19
Agreement
(and, for the avoidance of doubt, any Authorizing Resolution) required to be
deleted or added by any federal or state agency or official or in order to opt
to be governed by any amendment or successor statute to the Act; (g) to change
the name of the Company or any Series and to make any modifications to this
Agreement (and, for the avoidance of doubt, any Authorizing Resolution) to
reflect the admission of an additional or substitute managing member; (h) to
make any amendments to this Agreement (and, for the avoidance of doubt, any
Authorizing Resolution) that is required by law; (i) to make any amendment that
is appropriate or necessary, in the opinion of the Managing Member, to prevent
the Company, any Series, the Managing Member, or their respective directors,
officers or controlling persons from in any manner being subjected to the
provisions of the Investment Company Act of 1940, as amended, or the Investment
Advisers Act of 1940, as amended; (j) to take such actions as may be appropriate
or necessary, in the opinion of the Managing Member, to avoid the assets of any
Series from being treated for any purpose of ERISA or Section 4975 of the Code
as assets of any “employee benefit plan” as defined in and subject to ERISA or
of any “plan” as defined in and subject to Section 4975 of the Code (or any
corresponding provisions of succeeding law) or to avoid any Series from engaging
in a prohibited transaction as defined in Section 406 of ERISA or Section 4975
(c) of the Code; (k) to include specific business terms applicable to any
additional Series of Interests offered by the Company; or (l) to change any one
or more of the provisions hereof, remove any one or more provisions herefrom or
add one or more provisions hereto, for such purpose or purposes as the Managing
Member may deem necessary, appropriate, advisable or convenient, provided that,
in the Managing Member’s reasonable judgment, such amendment could not
reasonably be expected to have a material adverse affect on the Members of the
affected Series.
This
Agreement (and, for the avoidance of doubt, any Authorizing Resolution) may not
be amended without the consent of the Managing Member.
Without
obtaining the authorization or approval of any Member of any existing Series,
the Managing Member may, by Authorizing Resolution, (i) establish a new Series
and/or (ii) delete, replace or otherwise modify any provision of this Agreement
solely with respect to the Series established thereby, provided that, in the
Managing Member’s reasonable judgment, no existing Series or the Members thereof
could reasonably be expected to suffer a material adverse effect by reason of
such Authorizing Resolution or any such deletion, replacement or other
modification. It is understood and agreed that no existing Series or
the Members thereof could reasonably be expected to suffer a material adverse
effect by reason of any such Authorizing Resolution, deletion, replacement or
other modification solely because any such new Series provides a different
investment program and/or more favorable investment terms than an existing
Series.
15. Governing
Law.
THE
RIGHTS AND LIABILITIES OF THE MEMBERS SHALL BE AS PROVIDED IN THE ACT, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND ANY AUTHORIZING RESOLUTION,
AND THIS AGREEMENT, ANY AUTHORIZING RESOLUTION AND THE OPERATION AND
MANAGEMENT OF THE COMPANY AND EACH SERIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
16. Miscellaneous.
(a) Priority
Among Members.
No Member
shall be entitled to any priority or preference over any other Member in regard
to the affairs of the Company or any Series.
A-20
(b) No Appraisal
Rights.
Except as
may otherwise be determined by the Managing Member, Members shall have no
appraisal rights in connection with any action taken by the Company or any
Series, any amendment of the Certificate of Formation, this Agreement or any
Authorizing Resolution.
(c) Ownership.
The
ownership of Interests of each Series shall be recorded on the books and records
of the Company as are maintained for such Series under this Agreement, and no
certificates certifying the ownership of Interests in a Series shall be issued
except to the extent and in such manner the Managing Member may determine from
time to time. The books and records of the Company and each Series as maintained
by the Company and each Series shall be conclusive as to who are the holders of
Interests in each Series and as to the balances of the capital accounts in each
Series.
(d) Remedies for Breach; Effect
of Waiver or Consent.
A waiver
or consent, express or implied, of or to any breach or default by any person in
the performance by that person of his duties, responsibilities or obligations
with respect to the Company or any Series is not a consent to or waiver of any
other breach or default in the performance by that person of the same or any
other duties, responsibilities or obligations of that person with respect to the
Company or any Series. Failure on the part of a person to complain of
any act of any other person or to declare any other person in default with
respect to the Company or any Series, irrespective of how long that failure
continues, does not constitute a waiver by that person of its rights with
respect to that default until the applicable statute-of-limitations period has
run.
(e) Further
Assurances.
In
connection with this Agreement and the transactions contemplated hereby, each
Member shall, promptly upon the request of the Managing Member: (a) execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates and other documents; (b) make, or cause to be made, such additional
filings, recordings and publishings; (c) provide, or cause to be provided, such
additional information; and (d) do, or cause to be done, such further acts and
things, in each case as may reasonably be determined by the Managing Member to
be necessary, appropriate, advisable or convenient to carry out the intent and
purpose of this Agreement and as are not inconsistent with the provisions
hereof. Without limiting the generality of the foregoing, each Member
shall, promptly upon the request of the Managing Member, execute and deliver or
caused to be executed and delivered such certificates, instruments and other
documents, and make or cause to be made such filings, recordings and
publishings, as the Managing Member reasonably determines to be necessary,
appropriate, advisable or convenient to comply with the requirements for the
operation of the Company or any Series as a limited liability company or series,
respectively, under the Act and the qualification of the Company or any Series
to do business in any jurisdiction in which the Company or such Series owns
property or conducts business.
(f) Notices.
Except as
otherwise agreed with a Member, all notices under this Agreement shall be in
writing and shall be deemed to have been duly given if (a) personally delivered;
(b) sent by facsimile, e-mail, digital image file or any other electronic
format; (c) mailed by pre-paid certified mail; or (d) sent by reputable
overnight courier, in each case to the last known address, facsimile number or
email address, as the case may be, of each Member.
A-21
(g) Binding
Effect.
This
Agreement shall inure to and be binding upon all of the parties, their
successors, assigns as permitted herein, custodians, estates, heirs and personal
representative representatives. For purposes of determining the
rights of any Member hereunder, the Managing Member may rely upon the records of
the Company and the Series as to who are Members, and all Members agree that
their rights shall be determined and that they shall be bound
thereby.
(h) Captions.
Captions
in no way define, limit, extend or describe the scope of this Agreement or the
effect of any of its provisions.
(i) Confidentiality.
Each
Member agrees that he and anyone having knowledge through him shall not make
independent use of or knowingly disclose to any other person any aspect of the
Managing Member’s strategy and asset allocation which has not been publicly
disclosed by the Managing Member, an affiliate thereof, or the owner of the
Index, except that a Member may communicate such information in confidence to
his personal attorneys, accountants, investment advisers and tax advisers as is
relevant to their services. Notwithstanding the foregoing, or
anything to the contrary in the Company’s offering memorandum or Subscription
Agreement and Power of Attorney (or similar instrument), a Member (and each
employee, representative, or other agent of a Member) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure
of the transaction or transactions offered by, or discussed in, the Company’s
offering memorandum or this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to the Member relating to such
tax treatment and tax structure. This authorization of tax disclosure
is retroactively effective to the commencement of the first discussions between
the Managing Member or the Company and any Member (or person who subsequently
became a Member) regarding the transactions contemplated in the Company’s
offering memorandum or herein.
(j) Consent
to Jurisdiction.
ANY
ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THE AFFAIRS OF THE COMPANY, ANY
SERIES OR THE MANAGING MEMBER SHALL BE BROUGHT AND ENFORCED IN THE CITY OF
CHICAGO, COUNTY OF XXXX AND STATE OF ILLINOIS OR, TO THE EXTENT SUBJECT MATTER
JURISDICTION EXISTS THEREFORE, IN THE COURTS OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF ILLINOIS, AND THE MEMBERS, THE COMPANY, EACH SERIES AND THE
MANAGING MEMBER IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH STATE AND
FEDERAL COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. THE
MEMBERS, THE COMPANY, EACH SERIES AND THE MANAGING MEMBER IRREVOCABLY WAIVE ANY
OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO LAYING THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN XXX XXXXXX XX XXX XXXX XX XXXXXXX, XXXXXX OF XXXX AND
STATE OF ILLINOIS OR, TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS
THEREFORE, IN THE COURTS OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
A-22
(k) Powers
of Members.
The
Members shall take no part in the conduct or control of the business of the
Company or a Series and shall have no authority or power to act for or to bind
the Company or any Series. Except as specifically provided herein, nothing
contained herein shall be construed to constitute any Member the agent of any
other Member or the Managing Member. No provision of this Agreement
shall be deemed or construed to constitute the Company or any Series a
partnership (including without limitation, a limited partnership) or joint
venture, of any Member or the Managing Member, or a partner or joint
venturer of or with any Member or the Managing Member, for any purpose other
than federal and state tax purposes. No Member, as such, shall be
entitled to any salary, draw or other compensation from the Company or any
Series.
(l) Legal
Effect; Manner of Execution.
This
Agreement shall be binding on the executors, administrators, estates, heirs,
legal survivors, successors and permitted assigns of the Company or a Series,
and may be executed by power of attorney embodied in a Subscription Agreement
and Power of Attorney or similar instrument with the same effect as if the
parties executing the Subscription Agreement and Power of Attorney or similar
instrument had all executed one counterpart of this Agreement; provided that
this Agreement may also be executed in several counterparts provided that each
separate counterpart shall have been executed by the Managing Member.
(m) Tax
Elections; Determination of Matters Not Provided for in this
Agreement.
The
Managing Member is designated as the “Tax Matters Partner” for the Company and
each Series and shall be empowered to make or revoke any elections now or
hereafter required or permitted to be made by the Code or any state or local tax
law.
The
Managing Member shall be empowered to decide in a fair and equitable manner any
questions arising with respect to this Company, any Series or to this Agreement,
and to make such provisions as the Managing Member deems to be in, or not
opposed to, the best interests of the Company or a Series but which are not
specifically set forth herein.
(n) Amendment;
Restatement. This Agreement amends and restates all prior
limited liability company agreements of the Company in their
entirety.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the year and date first above
written.
A-23
Managing Member | Members | |||||
Price Asset Management, Inc. | All Members now and hereafter admitted as | |||||
members of the Company and the Series | ||||||
pursuant to powers of attorney now or | ||||||
hereafter executed in favor of, and delivered | ||||||
to, the Managing Member. | ||||||
By: | Price Asset Management, Inc. | |||||
By: |
|
By: |
|
|||
Name:
|
Name:
|
|||||
Title:
|
Title:
|
A-24