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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of
FT DEFINED PORTFOLIOS LLC
a Delaware Limited Liability Company
as of
December 11, 2000
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
FT DEFINED PORTFOLIOS LLC
James A. Bowen (the "Member") hereby adopts this Amended and Restated
Limited Liability Company Agreement (the "Agreement") dated as of December 11,
2000, with respect to FT Defined Portfolios LLC (the "LLC") and hereby declares
the following:
RECITALS:
WHEREAS, on April 24, 2000, the Member entered into that certain
Limited Liability Company Agreement (the "Original LLC Agreement") and caused to
be filed a Certificate of Formation with the Office of the Secretary of State of
the State of Delaware (the "Certificate") on April 27, 2000 in accordance with
the Delaware Limited Liability Company Act, 6 Del. C. ss. 18-101, et seq. (the
"Act").
NOW, THEREFORE, for good and valuable consideration, the parties,
intending legally to be bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Whenever used herein, unless other-
wise required by the context or specifically provided:
(a) "Act" has the meaning set forth in the recitals hereof.
(b) "Agreement" has the meaning set forth in the preamble
hereof.
(c) "Board of Trustees" refers initially to James A. Bowen
and, thereafter, to any other individuals who at the time in question
have been duly elected or appointed and qualified in accordance with
Article V hereof and are then in office; no member of the Board of
Trustees shall be deemed to be a "Manager" as defined in the Act,
although the Board of Trustees, collectively, shall be deemed to be the
sole "Manager" under the Act whose rights and duties are limited as set
forth herein.
(d) "Bylaws" shall mean the Operating Bylaws of the Company
included herewith as Exhibit A as amended from time to time.
(e) "Certificate" has the meaning set forth in the
recitals hereto.
(f) "Member" means a record owner of a Membership Interest.
(g) "Original LLC Agreement" has the meaning set forth in
recitals hereof.
(h) "Membership Interests" shall mean a limited liability
company interest issued and authorized pursuant to Article IV hereof
and having the rights, preferences, and designations set forth therein,
in this Agreement, in the Bylaws, and, to the extent not inconsistent
with this Agreement, the Act.
(i) "Variable Annuity Owners" means the parties who have
variable annuity policies (the "Policies") with Allmerica Financial
Life Insurance and Annuity Company ("Allmerica") that utilize Separate
Account VA-K of Allmerica Financial Life Insurance and Annuity Company
to fund the benefits of the Policies and who have indirect rights in
the Membership Interests pursuant to the Policies into which such
parties have entered.
(j) The "1940 Act" refers to the Investment Company Act of
1940 (and any successor statute) and the Rules and Regulations
thereunder, all as amended from time to time; and
(k) The terms "Commission," "Interested Person," "Principal
Underwriter" and "Vote of a Majority of the Outstanding Voting
Securities" shall have the meanings ascribed to them in the 1940 Act.
ARTICLE II
FORMATION
Section 2.1. Organization. Pursuant to the Act, an authorized person of
the Company, W. Scott Jardine, filed the Certificate on April 27, 2000, and the
Member entered into the Original LLC Agreement establishing the Company as a
Delaware limited liability company on that date. Mr. Jardine and any other
person appointed by the Board of Trustees or the President of the Company shall
serve as an authorized person of the Company for purposes of executing and
filing with the Delaware Secretary of State any amendments to the Certificate.
Such an authorized person shall from time to time hereafter, as may be required
by law or as may be determined by the Board of Trustees or the President of the
Company, do all filings, recordings and other acts as may be appropriate to
enable the Company to comply with the provisions of the Act.
Section 2.2. Intent. It is the intent of the Member that the Company
shall always be operated in a manner consistent with its treatment as a
"disregarded entity" for federal and state income tax purposes. The Member
shall not take any action inconsistent with the express intent of the parties
hereto.
Section 2.3. Name of the Company. The name under which the Certificate
of the Company was filed was "FT Defined Portfolios LLC" and the Company shall
continue to be named "FT Defined Portfolios LLC." The Board of Trustees may
change, and pursuant to Section 8.2 hereof shall change, the name of the Company
from time to time, and the Company may do business under any other name or names
determined by the Board of Trustees.
Section 2.4. Purpose. The purpose of the Company is to transact any and
all lawful business to which the Member agrees and for which limited liability
companies may be organized under the Act. The Company shall have any and all
powers necessary or desirable to carry out the purposes and business of the
Company, to the extent that the same is lawfully exercised by limited liability
companies ("LLCs") under the Act.
Section 2.5. Waiver of Compliance. No provision of this Agreement
shall be effective to require a waiver of compliance with any provisions of
the Securities Act of 1933, as amended, or the 1940 Act, or of any valid
rule, regulation or order of the Commission thereunder.
Section 2.6. Term. The Company shall have perpetual existence,
unless sooner terminated as provided in this Agreement or the Act.
Section 2.7. Member. (a) There shall be a single Member. The Member
shall be entitled to vote on all Company matters in which a Member is entitled
to vote or consent pursuant to this Agreement, the Bylaws, and, to the extent
not inconsistent with this Agreement or the Bylaws, the Act. As of the date of
this Agreement, James A. Bowen shall continue to be the sole Member of the
Company and, for the avoidance of any doubt, Mr. Bowen's interest under the
Original LLC Agreement is hereby converted into his Membership Interests
hereunder and Mr. Bowen is admitted to the Company as a Member in respect of
such Membership Interests. Mr. Bowen shall transfer his Membership Interests and
his status as a Member to Separate Account VA-K of Allmerica Financial Life
Insurance and Annuity Company ("Separate Account VA-K"), or any successor
thereof pursuant to a merger or other reorganization. In connection with such
transfer, Separate Account VA-K shall be deemed admitted to the Company as a
substitute Member in respect of Mr. Bowen's Membership Interests. Upon the
transfer, Mr. Bowen shall be deemed withdrawn as the Member of the Company in
respect of such Membership Interests. At no point may the Company have more than
one Member. The address, capital contribution and the Membership Interests of
the sole Member are set forth on Exhibit B hereto, as it may be amended from
time to time.
(b) The Member shall have the power to exercise any and all rights or
powers granted to the Member pursuant to the express terms of this Agreement or
as otherwise required by the Act. Except as otherwise specifically provided by
this Agreement or required by the Act, the Member shall not have the power to
act for or on behalf of, or to bind, the Company.
Section 2.8. Variable Annuity Owners and Voting Rights. At such time as
Separate Account VA-K is admitted as the Member of the Company, to the extent
required by applicable laws, regulations and Commission positions, the Member is
obligated to vote each Membership Interest in a manner consistent with the
instructions of the Variable Annuity Owner, if any, who has an indirect right in
the Membership Interest pursuant to a Policy issued by Allmerica.
Accordingly, to the extent so required by applicable laws, regulations
and Commission positions, any reference in this Agreement, the Bylaws, or the
Act to the voting rights of the Member or of the Membership Interests, quorum
requirements or other matters requiring the vote or consent of the Member or of
the Membership Interests, shall be construed to require the Member to vote,
consent or otherwise act in a manner that is consistent with the instructions of
the Variable Annuity Owners.
ARTICLE III
REGISTERED AGENT; PRINCIPAL PLACE OF BUSINESS
Section 3.1. Registered Office; Principal Place of Business. The
registered office of the Company in the State of Delaware shall continue to be
located at 30 Old Rudnick Lane, Suite 100, in the City of Dover, County of Kent,
or at any other place within the State of Delaware upon which the Board of
Trustees agree. The principal office and place of business of the Company in the
State of Illinois shall be located at 1001 Warrenville Road, Suite 300, Lisle,
Illinois 60532, or at any other place which the Board of Trustees shall
determine.
Section 3.2. Registered Agent. The name and address of the Company's
resident agent in the State of Delaware shall continue to be Lexis Document
Services, 30 Old Rudnick Lane, Suite 100, Dover, Delaware 19085. At any time,
the Board of Trustees may designate another registered agent and/or registered
office.
ARTICLE IV
MEMBERSHIP INTERESTS
Section 4.1. Membership Interests. The Membership Interests in the
Company shall be divided into such transferable Membership Interests, of such
series or classes, and of such designations and with such rights, preferences,
privileges and restrictions as shall be determined by the Board of Trustees in
its sole discretion, without Member approval, from time to time and shall
initially consist of one class of transferable Membership Interests. The number
of Membership Interests is unlimited and each Membership Interest shall be fully
paid and nonassessable. The Board of Trustees shall have full power and
authority, in its sole discretion and without obtaining any prior authorization
or vote of the Member of the Company (including in its capacity as the Member of
any series or class of Membership Interests), to create and establish (and to
change in any manner) Membership Interests or any series or classes thereof with
such preferences, voting powers, rights and privileges as the Board of Trustees
may from time to time determine; to divide or combine the Membership Interests
or the Membership Interests of any series or classes thereof into a greater or
lesser number; to classify or reclassify any issued Membership Interests into
one or more series or classes of Membership Interests; to abolish any one or
more series or classes of Membership Interests; to create Membership Interests
that may be senior to outstanding Membership Interests; and to take such other
action with respect to the Membership Interests as the Board of Trustees may
deem desirable. Except as may be specifically set forth in Section 4.2 of this
Article IV or in an instrument establishing and designating classes or series of
Membership Interests, the Membership Interests shall have the powers,
preferences, rights, qualifications, limitations and restrictions described
below:
(i) In the event of the termination of the Company the
Member shall be entitled to receive pro rata the net distributable
assets of the Company;
(ii) The Member shall be entitled to one vote for each
Membership Interest held on each matter submitted to a vote of the
Member as a single class. However, where separate class or series
voting is specifically provided for herein or pursuant to applicable
law, only Membership Interests of such class or series are entitled to
vote.
(iii) Distributions to the Member, when made by the Board of
Trustees, which shall be paid in cash or reinvested in full and
fractional Membership Interests of the Company as the Board of Trustees
shall direct;
(iv) Any Membership Interests purchased or redeemed
by the Company shall be retired automatically;
(v) Membership Interests may be issued from time to time,
without the vote of the Member (or, if the Board of Trustees in its
sole discretion deem advisable, with a vote of the Member), either for
cash or for such other consideration (which may be in any one or more
instances a certain specified consideration or certain specified
considerations) and on such terms as the Board of Trustees, from time
to time, may deem advisable, and the Company may in such manner acquire
other assets (including the acquisition of assets subject to, and in
connection with the assumption of liabilities); and
(vi) The Company may issue Membership Interests in fractional
denominations to the same extent as its whole Membership Interests, and
Membership Interests in fractional denominations shall be Membership
Interests having proportionately to the respective fractions
represented thereby all the rights of whole Membership Interests,
including, without limitation, the right to vote, the right to receive
dividends and distributions and the right to participate upon
termination of the Company. The Board of Trustees may from time to
time, without the vote of the Member, divide or combine Membership
Interests into a greater or lesser number without thereby changing the
Member's proportionate Membership Interests in the Company.
Section 4.2. Establishment of Series and Classes of Membership
Interests.
(a) Series. The Board of Trustees, in its sole discretion, without
obtaining any prior authorization or vote of the Member of the Company or of the
Member of any series or class of Membership Interests, from time to time may
authorize the division of Membership Interests into two or more series, the
number and relative rights, privileges and preferences of which shall be
established and designated by the Board of Trustees, in its discretion, upon and
subject to the following provisions:
(i) All Membership Interests shall be identical except that
there may be such variations as shall be fixed and determined by the
Board of Trustees between different series as to purchase price, right
of redemption, and the price, terms and manner of redemption, and
special and relative rights as to dividends and on liquidation.
(ii) The number of Membership Interests of each series that
may be issued shall be unlimited. The Board of Trustees may classify or
reclassify any unissued Membership Interests or any Membership
Interests previously issued and reacquired of any series into one or
more series that may be established and designated from time to time.
(iii) The power of the Board of Trustees to invest and
reinvest the assets of the Company allocated or belonging to any
particular series shall be governed by Section 6.1 of Article VI hereof
unless otherwise provided in the instrument of the Board of Trustees
establishing such series which is hereinafter described.
(iv) Each Membership Interest of a series shall represent an
interest in the net assets allocated or belonging to such series only,
and such interest shall not extend to the assets of the Company
generally. Dividends and distributions on Membership Interests of a
particular series may be paid with such frequency as the Board of
Trustees may determine, which may be monthly or otherwise, pursuant to
a standing vote or votes adopted only once or with such frequency as
the Board of Trustees may determine, to the Member, as the sole holder
of Membership Interests of such series, from such of the income and
capital gains, accrued or realized, from the assets belonging to that
series. All dividends and distributions on Membership Interests of a
particular series shall be distributed pro rata to the Member, as the
sole holder of Membership Interests of that series, in proportion to
the number of Membership Interests of that series held by the Member at
the date and time of record established for the payment of such
dividends or distributions. Membership Interests of any particular
series of the Company may be redeemed solely out of the assets of the
Company allocated or belonging to that series. Upon liquidation or
termination of a series of the Company, the Member, as the sole holder
of Membership Interests of such Series, shall be entitled to receive a
pro rata share of the net assets of such series only.
(v) Notwithstanding any provision hereof or in an instrument
establishing and designating classes or series of Membership Interests
to the contrary, on any matter submitted to a vote of the Member of the
Company, all Membership Interests then entitled to vote shall be voted
by individual series, except that (i) when required by the 1940 Act to
be voted in the aggregate, Membership Interests shall not be voted by
individual series, (ii) when the Board of Trustees has determined that
the matter affects only the interests of the Member in its capacity as
holder of one or more series, only the Member in its capacity as a
holder of such series shall be entitled to vote thereon, and (iii) all
series shall vote together on the election of Trustees.
(vi) The establishment and designation of any series of
Membership Interests shall be effective upon the execution by a
majority of the Board of Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences
of such series or as otherwise provided in such instrument.
(b) Classes. Notwithstanding anything in this Agreement to the
contrary, the Board of Trustees may, in its discretion, without obtaining any
prior authorization or vote of the Member of the Company (including in its
capacity as holder of any series or class of Membership Interests), from time to
time authorize the division of Membership Interests of the Company or any series
thereof into Membership Interests of one or more classes upon the execution by a
majority of the Board of Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences of such
class or classes. The Board of Trustees may create new classes that may be
senior to existing classes. All Membership Interests of a class shall be
identical with each other and with the Membership Interests of each other
classes of the same series except for such variations between classes as may be
approved by the Board of Trustees and set forth in such instrument of
establishment and designation and be permitted under the 1940 Act or pursuant to
any exemptive order issued by the Commission.
Section 4.3. Ownership of Membership Interests. The ownership and
transfer of Membership Interests shall be recorded on the books of the Company
or its transfer or similar agent. The Board of Trustees may make such rules as
they consider appropriate for the transfer of Membership Interests and similar
matters. The record books of the Company, as kept by the Company or any transfer
or similar agent of the Company, shall be conclusive as to who is the Member.
Section 4.4. No Preemptive Rights, Etc. The Member shall not have any
right to acquire, purchase or subscribe for any Membership Interests or
securities of the Company which it may hereafter issue or sell, other than such
right, if any, as the Board of Trustees in its discretion may determine. The
Member shall have no appraisal rights with respect to its Membership Interests
and, except as otherwise determined by resolution of the Board of Trustees in
its sole discretion, shall have no exchange or conversion rights with respect to
its Membership Interests.
Section 4.5. Assets and Liabilities of Series. In the event
that the Company, pursuant to Section 4.2 of this Article IV, shall
authorize the division of Membership Interests into two or more series, the
following provisions shall apply:
(a) All consideration received by the Company for the issue or
sale of Membership Interests of a particular series, together with all
assets in which such consideration is invested or reinvested, all
income, earnings, profits and proceeds thereof, 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 irrevocably belong to that series
for all purposes and shall be segregated from the assets of any other
series, and shall be so recorded upon the books of the Company as set
forth in the instrument of establishment and designation for such
Membership Interests. Such consideration, assets, income, earnings,
profits and proceeds, 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, together with any General Asset Items (as hereinafter
defined) allocated to that series as provided in the following
sentence, are herein referred to as "assets belonging to" that series.
In the event that there are any assets, income, earnings, profits or
proceeds thereof, funds or payments which are not readily identifiable
as belonging to any particular series (collectively "General Asset
Items"), the Board of Trustees shall allocate such General Asset Items
to and among any one or more of the series created from time to time in
such manner and on such basis as it, in its sole discretion, deem fair
and equitable; and any General Asset Items allocated to a particular
series shall thereafter constitute "assets belonging to" that series.
Each such allocation by the Board of Trustees shall be conclusive and
binding upon the Member in its capacity as a holder of any and all
series for all purposes.
(b) The assets belonging to a particular series shall be
charged with the liabilities of the Company in respect of that series
and with all expenses, costs, charges and reserves attributable to that
series and shall be so recorded upon the books of the Company.
Liabilities, expenses, costs, charges and reserves charged to a
particular series, together with any General Liability Items (as
hereinafter defined) allocated to that series as provided in the
following sentence, are herein referred to as "liabilities belonging
to" that series and shall be segregated from the liabilities of any
other series. In the event there are any general liabilities, expenses,
costs, charges or reserves of the Company which are not readily
identifiable as belonging to any particular series (collectively
"General Liability Items"), the Board of Trustees shall allocate and
charge such General Liability Items to and among any one or more of the
series created from time to time in such manner and on such basis as
the Board of Trustees in its sole discretion deem fair and equitable;
and any General Liability Items so allocated and charges to a
particular series shall thereafter constitute "liabilities belonging
to" that series. Each such allocation by the Board of Trustees shall be
conclusive and binding upon the Member in its capacity as a holder of
any and all series for all purposes.
Section 4.6. Status of Membership Interests and Limitation of Personal
Liability. Membership Interests shall be deemed to be personal property giving
only the rights provided in this instrument. The Member by virtue of having
become the Member shall be held to have expressly assented and agreed to the
terms of this Agreement and to have become a party thereto. Ownership of
Membership Interests shall not entitle the Member to any title in or to the
whole or any part of the Company property or right to call for a partition or
division of the same or for an accounting. Except for explicitly set forth
herein, neither the Trustees, nor any officer, employee or agent of the Company
shall have any power to bind the Member personally or to call upon the Member
for the payment of any sum of money or assessment whatsoever other than such as
the Member may at any time personally agree to pay by way of subscription for
any Membership Interests or otherwise.
ARTICLE V
THE TRUSTEES
Section 5.1 Management of the Company. The business and affairs of the
Company shall be managed by the Board of Trustees, and they shall have all
powers necessary and desirable to carry out that responsibility.
Section 5.2. Qualification and Number. Each Trustee shall be a natural
person. A Trustee need not be the Member, a citizen of the United States, or a
resident of the State of Delaware. As of the date hereof, James A. Bowen shall
be the sole Trustee on the Board of Trustee. By the vote or consent of a
majority of the Trustees then in office, the Board of Trustees may fix the
number of Trustees at a number not less than one (1) nor more than twelve (12)
and may fill the vacancies created by any such increase in the number of
Trustees. Except as determined from time to time by resolution of the Board of
Trustees, no decrease in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term, but the
number of Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to Section 5.4 of this Article V.
Section 5.3. Term and Election. Each Trustee shall hold office until
the next meeting of the Member is called, in accordance with this Agreement and
the Bylaws, for the purpose of considering the election or re-election of such
Trustee or of a successor to such Trustee, and until his successor is elected
and qualified, and any Trustee who is appointed by the Board of Trustees in the
interim to fill a vacancy as provided hereunder shall have the same remaining
term as that of his predecessor, if any, or such term as the Board of Trustees
may determine. Any vacancy resulting from a newly created Trusteeship or the
death, resignation, retirement, removal, or incapacity of a Trustee may be
filled by the affirmative vote or consent of a majority of the Trustees then in
office.
Section 5.4. Resignation and Removal. Any Trustee may resign his
position or retire as a Trustee (without need for prior or subsequent
accounting) by an instrument in writing signed by him and delivered or mailed to
the Chairman, if any, the President or the Secretary and such resignation or
retirement shall be effective upon such delivery, or at a later date according
to the terms of the instrument. Any Trustee who has become incapacitated by
illness or injury as determined by a majority of the other Trustees, may be
retired by written instrument signed by a majority of the other Trustees. Except
as aforesaid, any Trustee may be removed from office only for "Cause" (as
hereinafter defined) and only (i) by action of at least sixty-six and two-thirds
percent (66-2/3%) of the outstanding Membership Interests, or (ii) by written
instrument, signed by at least sixty-six and two-thirds percent (66-2/3%) of the
remaining Trustees, specifying the date when such removal shall become
effective. "Cause" shall require willful misconduct, dishonesty, fraud or a
felony conviction as determined by at least sixty-six and two-thirds percent
(66-2/3%) of the remaining Trustees.
Section 5.5. Vacancies. The death, declination, resignation,
retirement, removal, or incapacity, of the Trustees, or any one of them, shall
not operate to annul the Company or to revoke any existing agency created
pursuant to the terms of this Agreement. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided herein, or the
number of Trustees as fixed is reduced, the Trustees in office, regardless of
their number, shall have all the powers granted to the Board of Trustees, and
during the period during which any such vacancy shall occur, only the Trustees
then in office shall be counted for the purposes of the existence of a quorum or
any action to be taken by such Board of Trustees.
Section 5.6. Voting Requirements. In addition to the voting
requirements imposed by law or by any other provision of this Agreement, the
provisions set forth in this Article V may not be amended, altered or repealed
in any respect, nor may any provision inconsistent with this Article V be
adopted, without the affirmative vote of at least sixty-six and two-thirds
percent (66-2/3%) of the outstanding Membership Interests. In the event the
outstanding Membership Interests of any series or class are required by law or
any other provision of this Agreement to approve such an action by a class vote
of such Membership Interests, such action must be approved by at least sixty-six
and two-thirds percent (66-2/3%) of the outstanding Membership Interests of such
series or class or such other percentage as may be required by law or any other
provision of this Agreement.
ARTICLE VI
POWERS OF TRUSTEES
Section 6.1. Powers. The Board of Trustees in all instances shall have
full, absolute and exclusive power, control and authority over the Company
assets and the business and affairs of the Company. The Board of Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that they may consider necessary or
appropriate in connection with the management of the Company. The enumeration of
any specific power herein shall not be construed as limiting the aforesaid
powers. In construing the provisions of this Agreement, there shall be a
presumption in favor of the grant of powers and authority to the Board of
Trustees. The Member, in its capacity as the Member, shall not have any power to
act for, sign for or do any act, that would bind the Company except as set forth
herein or as determined by the Board of Trustees. Subject to any applicable
limitation in this Agreement, the Board of Trustees shall have power and
authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to
hold, for investment or otherwise, to sell or otherwise dispose of, to
lend or to pledge, to trade in or deal in securities or interests of
all kinds, however evidenced, or obligations of all kinds, however
evidenced, or rights, warrants, or contracts to acquire such
securities, interests, or obligations, of any private or public
company, corporation, association, general or limited partnership,
trust or other enterprise or organization foreign or domestic, or
issued or guaranteed by any national or state government, foreign or
domestic, or their agencies, instrumentalities or subdivisions
(including but not limited to, bonds, debentures, bills, time notes and
all other evidences or indebtedness); negotiable or nonnegotiable
instruments; any and all options and futures contracts, derivatives or
structured securities; government securities and money market
instruments (including but not limited to, bank certificates of
deposit, finance paper, commercial paper, bankers acceptances, and all
kinds of repurchase agreements) and, without limitation, all other
kinds and types of financial instruments;
(b) To adopt Bylaws not inconsistent with this Agreement
providing for the conduct of the business of the Company and to amend
and repeal them to the extent that they do not reserve that right to
the Member. Such Bylaws are attached hereto as Exhibit A and may be
amended from time to time;
(c) To elect and remove such officers and appoint and ter-
minate such agents and authorized persons as they consider appropriate;
(d) To set record dates for any purpose;
(e) To delegate such authority as they consider desirable to
any officers of the Company and to any investment adviser, investment
subadviser, transfer agent, custodian, underwriter, administrator or
other independent contractor or agent;
(f) Subject to Section 9.1 hereof, to merge or consolidate the
Company with any other corporation, association, trust or other
organization; or to sell, convey, transfer, or lease all or
substantially all of the assets of the Company;
(g) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and
to execute and deliver proxies or powers of attorney to such person or
persons as the Board of Trustees shall deem proper, granting to such
person or persons such power and discretion with relation to securities
or property as the Board of Trustees shall deem proper;
(h) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(i) To hold any security or property, whether in bearer,
unregistered or other negotiable form; or either in their or the
Company's name or in the name of a custodian or a nominee or nominees;
(j) To issue, sell, repurchase, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer and otherwise deal in a
Membership Interest and in any options, warrants or other rights to
purchase a Membership Interest;
(k) To set apart, from time to time, out of any funds of
the Company a reserve or reserves for any proper purpose, and to
abolish any such reserve;
(l) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security or property of which is held in the Company; to consent to
any contract, lease, mortgage, purchase, or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect
to any security held in the Company;
(m) To compromise, arbitrate, or otherwise adjust claims
in favor of or against the Company or any matter in controversy
including, but not limited to, claims for taxes;
(n) To make distributions to the Member;
(o) To borrow money and to pledge, mortgage, or
hypothecate the assets of the Company;
(p) To establish, from time to time, a minimum total
investment for the Member, and to require the redemption of the
Membership Interests of the Member if the investment is less than such
minimum upon such terms as shall be established by the Board of
Trustees;
(q) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Board of Trustees shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Board of
Trustees shall deem proper;
(r) To purchase and pay for out of Company property such
insurance as they may deem necessary or appropriate for the conduct of
the business of the Company, including, without limitation, insurance
policies insuring the assets of the Company and payment of
distributions and principal on its portfolio investments, and insurance
policies insuring the Member, Trustees, officers, employees, agents,
investment advisers, investment subadvisers or managers, principal
underwriters, or independent contractors of the Company individually
against all claims and liabilities of every nature arising by reason of
holding, being or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such person
as Member, Trustee, officer, employee, agent, investment adviser,
subadviser or manager, principal underwriter, or independent
contractor, whether or not any such action may be determined to
constitute negligence, and whether or not the Company would have the
power to indemnify such person against such liability; and
(s) To pay pensions for faithful service, as deemed
appropriate by the Board of Trustees, and to adopt, establish and carry
out pension, profit-sharing, share bonus, Membership Interest purchase,
savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and
agents of the Company.
Any determination made by or pursuant to the direction of the Board of
Trustees in good faith and consistent with the provisions of this Agreement
shall be final and conclusive and shall be binding upon the Company and the
Member, including, but not limited to the following matters: the amount of the
assets, obligations, liabilities and expenses of the Company; the amount of the
net income of the Company from dividends, capital gains, interest or other
sources for any period and the amount of assets at any time legally available
for the payment of dividends or distributions; the amount, purpose, time of
creation, increase or decrease, alteration or cancellation of any reserves or
charges and the propriety thereof (whether or not any obligation or liability
for which such reserves or charges were created shall have been paid or
discharged); the market value, or any quoted price to be applied in determining
the market value, of any security or other asset owned or held by the Company;
the fair value of any security for which quoted prices are not readily
available, or of any other asset owned or held by the Company; the number of
Membership Interests of the Company issued; the net asset value per Membership
Interest; any matter relating to the acquisition, holding and depositing of
securities and other assets by the Company; any question as to whether any
transaction constitutes a purchase of securities on margin, a short sale of
securities, a borrowing, or an underwriting of the sale of, or participation in
any underwriting or selling group in connection with the public distribution of,
any securities, and any matter relating to the issue, sale, redemption,
repurchase, and/or other acquisition or disposition of Membership Interests of
the Company. No provision of this Agreement shall be effective to protect or
purport to protect any Trustee or officer of the Company against any liability
to the Company or to its security holders to which he would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
Section 6.2. Manner of Acting; Operating Bylaws. The Bylaws shall make
provision from time to time for the manner in which the Board of Trustees may
take action, including, without limitation, at meetings within or without
Delaware, including meetings held by means of a conference telephone or other
communications equipment, or by written consents, the quorum and notice, if any,
that shall be required for any meeting or other action, and the delegation of
some or all of the power and authority of the Board of Trustees to any one or
more committees which they may appoint from its own number, and terminate, from
time to time.
ARTICLE VII
EXPENSES OF THE COMPANY
The Trustees shall have the power to reimburse themselves from the
Company property for its expenses and disbursements, to pay reasonable
compensation to themselves from the Company property, and to incur and pay out
of the Company property any other expenses which in the opinion of the Board of
Trustees are necessary or incidental to carry out any of the purposes of this
Agreement, or to exercise any of the powers of the Trustees hereunder.
ARTICLE VIII
INVESTMENT ADVISER, UNDERWRITER AND TRANSFER AGENT
Section 8.1. Investment Adviser. The Company may enter into written
contracts with one or more persons (which term shall include any firm,
corporation, trust or association), to act as investment adviser or investment
subadviser to the Company, and as such to perform such functions as the Board of
Trustees may deem reasonable and proper, including, without limitation,
investment advisory, management, research, valuation of assets, clerical and
administrative functions, under such terms and conditions, and for such
compensation, as the Board of Trustees may in its discretion deem advisable.
However, the Board of Trustees is responsible for the general supervision of the
duties performed for the Company by any such party.
Section 8.2. Change of Name. Upon the termination of any contract
with First Trust Advisors L.P., or any corporation affiliated with Nike
Securities L.P., acting as investment adviser or manager, the Board of
Trustees is hereby required to promptly change the name of the Company to a
name which does not include "First Defined Portfolio", "First Trust" or "Nike"
or any approximation or abbreviation thereof.
Section 8.3. Underwriter; Transfer Agent. The Company may enter into a
written contract or contracts with an underwriter or underwriters or distributor
or distributors whereby the Company may either agree to sell Membership
Interests to the other party or parties to the contract or appoint such other
party or parties its sales agent or agents for such Membership Interests and
with such other provisions as the Board of Trustees may deem reasonable and
proper, and the Board of Trustees may in its discretion from time to time enter
into transfer agency, administrative services and/or Member service contract(s),
in each case with such terms and conditions, and providing for such
compensation, as the Board of Trustees may in its discretion deem advisable.
Section 8.4. Parties to Contract. Any contract of the character
described in Sections 8.1 and 8.3 of this Article VIII or in Article X hereof
may be entered into with any corporation, firm, partnership, trust or
association, including, without limitation, the investment adviser, any
investment subadviser or an affiliate of the investment adviser or investment
subadviser, although one or more of the Board of Trustees or officers of the
Company may be an officer, director, trustee, shareholder, or member of such
other party to the contract, or otherwise interested in such contract and no
such contract shall be invalidated or rendered voidable by reason of the
existence of any such relationship, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Company under or by reason of said contract or accountable for
any profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this Article VIII,
Article X, or the Bylaws, the parties hereto hereby agreeing that no such
inconsistency exists between the terms hereof and any provision of that certain
Distribution Agreement, Services Agreement, Fund Participation Agreement,
Administrative Services Agreement, Custody Agreement, License and Sub-License
Agreements, Investment Advisory and Management Agreement, Name Agreement,
Foreign Custody Management Agreement, Share Purchase Agreement and Fund
Participation Agreement each of which having been approved by the Board of
Directors involving the Company and various service providers. The same person
(including a firm, corporation, partnership, trust or association) may be the
other party to contracts entered into pursuant to Sections 8.1 and 8.3 above or
Article X, and any individual may be financially interested or otherwise
affiliated with persons who are parties to any or all of the contracts mentioned
in this Section 8.4.
ARTICLE IX
MEMBER'S VOTING POWERS AND MEETINGS
Section 9.1. Voting Powers. The Member shall have power to vote only:
(a) for the election or removal of Trustees as provided in Article V, (b) with
respect to any investment advisory or management contract to the extent required
by the 1940 Act, (c) with respect to any termination of the Company or a series
thereof to the extent and as provided in this Section 9.1, (d) with respect to
any amendment of this Agreement to the extent and as provided in Section 13.4,
(e) with respect to a merger or consolidation of the Company or any series
thereof with any corporation, association, trust or other organization or a
reorganization or recapitalization of the Company or series thereof, or a sale,
lease or transfer of all or substantially all of the assets of the Company or
any series thereof (other than in the regular course of the Company's investment
activities) to the extent and as provided in this Section 9.1, and (f) with
respect to such additional matters relating to the Company as may be required by
law, the 1940 Act, this Agreement, the Bylaws of the Company, or any
registration of the Company with the Commission or any State, or as the Board of
Trustees may consider necessary or desirable. As provided in Section 2.8 of this
Agreement, to the extent required by applicable laws, regulations and Commission
positions, the Member is required to submit matters requiring a vote to the
Variable Annuity Owners and to vote each Membership Interest in accordance with
the instructions of the Variable Annuity Owner who has an indirect right in the
Membership Interest pursuant to a Policy issued by Allmerica.
An affirmative vote of at least sixty-six and two-thirds percent
(66-2/3%) of the outstanding Membership Interests of the Company (or, in the
event of any action set forth below affecting only one or more series or classes
of the Company, an affirmative vote of at least sixty-six and two-thirds percent
of the outstanding Membership Interests of such affected series or class) shall
be required to approve, adopt or authorize (i) a merger or consolidation of the
Company or a series of the Company with any corporation, association, trust or
other organization or a reorganization or recapitalization of the Company or a
series of the Company, (ii) a sale, lease or transfer of all or substantially
all of the assets of the Company or series of the Company (other than in the
regular course of the Company's investment activities), or (iii) a termination
of the Company or a series of the Company (other than a termination by the Board
of Trustees as provided for in Section 13.1 hereof), unless in any case such
action is recommended by the Board of Trustees, in which case the affirmative
Vote of a Majority of the Outstanding Voting Securities of the Company or the
affected series or class shall be required.
Section 9.2. Meetings. Meetings of the Member of the Company ( in its
capacity as such or in the particular capacity as holder of the Membership
Interests of one or more series thereof) may be called and held from time to
time, for the purpose of taking action upon any matter requiring the vote or
authority of the Member as herein provided or upon any other matter deemed by
the Board of Trustees to be necessary or desirable. Such meetings are not
required except as set forth herein or in the Bylaws. Meetings of the Member
shall be held at such place within the United States as shall be fixed by the
Board of Trustees, and stated in the notice of the meeting. Meetings of the
Member may be called by the Board of Trustees and shall be called by the Board
of Trustees if the Board of Trustees receives written requests representing at
least one-tenth of the outstanding Membership Interests entitled to vote. The
Member shall be entitled to at least ten days' written notice of any meeting,
except where the meeting is an adjourned meeting and the date, time and place of
the meeting were announced at the time of the adjournment.
Section 9.3. Quorum and Action. (a) The Trustees shall set in the
Bylaws the quorum required for the transaction of business by the Member at a
meeting, which quorum shall in no event be less than thirty percent (30%) of the
Membership Interests entitled to vote at such meeting. If a quorum is present
when a duly called or held meeting is convened, the Membership Interests present
may continue to transact business until adjournment, even though the withdrawal
of a number of Membership Interests originally present leaves less than the
proportion or number otherwise required for a quorum.
(b) The Member shall take action by the affirmative vote of a majority,
except in the case of the election of the Board of Trustees which shall only
require a plurality, of the Membership Interests present in person or by proxy
and entitled to vote at a meeting of the Member at which a quorum is present,
except as may be otherwise required by the 1940 Act or any provision of this
Agreement or the Bylaws. As provided in Section 2.8 of this Agreement, to the
extent required by applicable laws, regulations and Commission positions, the
Member is required to submit matters requiring a vote to the Variable Annuity
Owners and to vote each Membership Interest in accordance with the instructions
of the Variable Annuity Owner who has an indirect right in the Membership
Interest pursuant to a Policy issued by Allmerica.
Section 9.4. Voting. Each whole Membership Interest shall be entitled
to one vote as to any matter on which it is entitled to vote and each fractional
Membership Interest shall be entitled to a proportionate fractional vote, except
that Membership Interests held in the treasury of the Company shall not be
voted. In the event that there is more than one series of the Membership
Interests, Membership Interests shall be voted by individual series on any
matter submitted to a vote of the Member of the Company except as provided in
Sections 4.2(a)(v) and 4.2(b). There shall be no cumulative voting in the
election of Board of Trustees or on any other matter submitted to a vote of the
Member. Membership Interests may be voted in person or by proxy. Until
Membership Interests are issued, the Board of Trustees may exercise all rights
of the Member and may take any action required or permitted by law, this
Agreement or the Bylaws of the Company to be taken by the Member.
Section 9.5. Action by Written Consent in Lieu of Meeting of the
Member. Any action required or permitted to be taken at a meeting of the Member
may be taken without a meeting by written action signed by the Member in the
respective capacity as holder of whichever Membership Interests are otherwise
required hereunder to be entitled to vote with respect to such action. The
written action is effective when it has been signed by all of those parties,
unless a different effective time is provided in the written action.
ARTICLE X
CUSTODIAN
All securities and cash of the Company shall be held by one or more
custodians and subcustodians, each meeting the requirements for a custodian
contained in the 1940 Act, or shall otherwise be held in accordance with the
1940 Act.
ARTICLE XI
DISTRIBUTIONS AND REDEMPTIONS
Section 11.1. Distributions. The Board of Trustees may in its
sole discretion from time to time declare and pay, or may prescribe and set
forth in a duly adopted vote or votes of the Board of Trustees, the bases
and time for the declaration and payment of, such dividends and distributions
to the Member as they may deem necessary or desirable, after providing for
actual and accrued expenses and liabilities (including such reserves as the
Board of Trustees may establish) determined in accordance with good accounting
practices.
Section 11.2. Redemption of Membership Interests. All Membership
Interests of the Company shall be redeemable as directed by the Member in
accordance with this Agreement, at the redemption price determined in the manner
set out in this Agreement. The Company shall redeem the Membership Interests of
the Company or any series or class thereof at the price determined as
hereinafter set forth, upon the appropriately verified application of the Member
(or upon such other form of request as the Board of Trustees may determine) at
such office or agency as may be designated from time to time for that purpose by
the Board of Trustees. The Board of Trustees may from time to time specify
additional conditions, not inconsistent with the 1940 Act, regarding the
redemption of Membership Interests in the Company's then effective prospectus
under the Securities Act of 1933.
Section 11.3. Redemption Price. Membership Interests shall be redeemed
at their net asset value (less any applicable redemption fee or sales charge)
determined as set forth in Section 11.7 of this Article XI as of such time as
the Board of Trustees shall have theretofore prescribed by resolution. In the
absence of such resolution, the redemption price of Membership Interests
submitted for redemption shall be the net asset value of such Membership
Interests next determined as set forth in such Section hereof after receipt of
such application.
Section 11.4. Payment. Payment of the redemption price of Membership
Interests of the Company or any series or class thereof shall be made in cash
or in property or partly in cash and partly in property to the Member at
such time and in the manner, not inconsistent with the 1940 Act or other
applicable laws, as may be specified from time to time in the Company's then
effective prospectus under the Securities Act of 1933.
Section 11.5. Redemption of Member's Interest. The Board of Trustees, in
its sole discretion, may cause the Company to redeem all of the Membership
Interests of the Company or one or more series of the Company held by the Member
if the value of such Membership Interests held by the Member is less than the
minimum amount established from time to time by the Board of Trustees.
Section 11.6. Suspension of Right of Redemption. Notwithstanding the
foregoing, the Company may postpone payment of the redemption price and may
suspend the right of the Member to require the Company to redeem Membership
Interests (a) during any period when the New York Stock Exchange (the
"Exchange") is closed (other than customary weekend and holiday closings), (b)
when trading in the markets the Company normally utilizes is restricted, or an
emergency exists as determined by the Commission so that disposal of the
Company's investments or determination of its net asset value is not reasonably
practicable, or (c) for such other periods as the Commission may by order, rule
or otherwise permit.
Section 11.7. Determination of Net Asset Value and Valuation of
Portfolio Assets. The Board of Trustees may in its sole discretion from time to
time prescribe and shall set forth in the Bylaws or in a duly adopted vote or
votes of the Board of Trustees such bases and times for determining the per
Membership Interest net asset value of the Membership Interests and the
valuation of portfolio assets as they may deem necessary or desirable.
The Company may suspend the determination of net asset value during any
period when it may suspend the right of the Member to require the Company to
redeem Membership Interests.
ARTICLE XII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 12.1. Limitation of Liability. No personal liability for any
debt or obligation of the Company or any Series shall attach to any Trustee,
Member, officer, employee or authorized person of the Company. Without limiting
the foregoing, a Trustee shall not be responsible for or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, investment adviser,
subadviser, authorized person, principal underwriter or custodian of the Company
or any Series, nor shall any Trustee be responsible or liable for the act or
omission of any other Trustee. In addition, a Trustee is not obligated to
supervise those persons. Nothing contained herein shall protect any Trustee
against any liability to which such Trustee would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
Every note, bond, contract, instrument, certificate, Membership
Interest or undertaking and every other act or thing whatsoever executed or done
by or on behalf of the Company or the Trustees or any of them in connection with
the Company shall be conclusively deemed to have been executed or done only in
or with respect to their or his capacity as Trustees or Trustee and neither such
Trustees or Trustee nor the Member shall be personally liable thereon.
All persons extending credit to, contracting with or having any claim
against the Company or any applicable series of the Company shall look only to
the assets of the Company or the applicable series of the Company, as the case
may be, for payment under such credit, contract or claim; and neither the Member
nor the Trustees, nor any of the Company's officers, employees, authorized
persons or agents, whether past, present or future, shall be personally liable
therefor.
Section 12.2. Board of Trustees' Good Faith Action, Expert Advice,
No Bond or Surety. To the extent that, at law or in equity, the Member or a
Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to the Member or a Trustee:
(i) The Member or any Trustee acting under the Agreement shall
not be liable to the Company, to the Member or to a Trustee, as the
case may be, for the Member's or Trustee's good faith reliance on the
provisions of the Agreement; and
(ii) The Member's or a Trustee's duties and liabilities
may be expanded or restricted by provisions in the Agreement.
Without limiting the generality of the foregoing, the exercise by the Board of
Trustees of its powers and discretions thereunder shall be binding upon everyone
interested. A Trustee shall be liable only for his own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and for nothing else, and shall not be liable
for errors of judgment or mistakes of fact or law. The Trustees may take advice
of counsel or other experts with respect to the meaning and operation of this
Agreement and their duties as Trustees hereunder, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. In discharging their duties, the Trustees, when acting in
good faith, shall be entitled to rely upon the books of account of the Company
and upon written reports made to the Trustees by any officer appointed by them,
any independent public accountant and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of any other
party to any contract entered into hereunder. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Section 12.3. Liability of Third Persons Dealing with Board of Trustees.
No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Board of
Trustees or to see to the application of any payments made or property
transferred to the Company or upon its order.
Section 12.4. Indemnification. (a) Subject to the exceptions
and limitations contained in this Section 12.4, every person who is, or has
been, a Trustee, director, officer, employee, authorized person or agent of the
Company, including persons who serve at the request of the Company as
Trustees, officers, employees, authorized persons or agents, of another
organization in which the Company has an interest as a shareholder,
creditor or otherwise (hereinafter referred to as a "Covered Person"), shall
be indemnified by the Company to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director, officer, employee, authorized person or agent and
against amounts paid or incurred by him in settlement thereof.
(b) No indemnification shall be provided hereunder to a Covered
Person:
(i) against any liability to the Company or the Member by
reason of a final adjudication by the court or other body before which
the proceeding was brought that he engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of his office;
(ii) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the reasonable
belief that his action was in the best interests of the Company; or
(iii) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b))
and resulting in a payment by a Covered Person, unless there has been
either a determination that such Covered Person did not engage in
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition, or a
reasonable determination, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that he did not engage in
such conduct:
(A) by a vote of a majority of the Disinterested
Trustees acting on the matter (provided that a majority of the
Disinterested Trustees then in office act on the matter); or
(B) by written opinion of independent legal
counsel.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Company, shall be severable, shall not
affect any other rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be such a Covered
Person and shall inure to the benefit of the heirs, executors and administrators
of such a person. Nothing contained herein shall affect any rights to
indemnification to which Company personnel other than Covered Persons may be
entitled by contract or otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under this
Section 12.4 shall be advanced by the Company prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the recipient to repay such
amount if it is ultimately determined that he is not entitled to indemnification
under this Section 12.4, provided that either:
(i) such undertaking is secured by a surety bond or some other
appropriate security or the Company shall be insured against losses
arising out of any such advances; or
(ii) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in
office act on the matter) or independent legal counsel in a written
opinion shall determine, based upon a review of the readily available
facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the recipient ultimately will be found entitled to
indemnification.
As used in this Section 12.4, a "Disinterested Trustee" is one (x) who
is not an Interested Person of the Company (including anyone, as such
Disinterested Trustee, who has been exempted from being an Interested Person by
any rule, regulation or order of the Commission), and (y) against whom none of
such actions, suits or other proceedings or another action, suit or other
proceeding on the same or similar grounds is then or has been pending.
As used in this Section 12.4, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits, proceedings (civil,
criminal, administrative or other, including appeals), actual or threatened; and
the words "liability" and "expenses" shall include without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
Section 12.5. Member. No personal liability for any debt or obligation
of the Company shall attach to the Member or any former Member of the Company.
In case the Member or former Member of the Company shall be held to be
personally liable solely by reason of his being or having been the Member and
not because of his acts or omissions or for some other reason, the Member or
former Member (or his heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets of the Company
to be held harmless from and indemnified against all loss and expenses arising
from such liability; provided, however, there shall be no liability or
obligation of the Company arising hereunder to reimburse the Member for taxes
paid by reason of such Member's ownership of any Membership Interest or for
losses suffered by reason of any changes in value of any Company assets. The
Company shall, upon request by the Member or former Member, assume the defense
of any claim made against the Member for any act or obligation of the Company
and satisfy any judgment thereon.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Termination of Company. Unless terminated as
provided herein, the Company shall continue without limitation of time.
The Company or any series of the Company may be terminated in accordance
with Section 9.1 hereof.
Upon termination of the Company or any series thereof, after paying or
otherwise providing for all charges, taxes, expenses and liabilities, whether
due or accrued or anticipated, as may be determined by the Board of Trustees,
the Company shall, in accordance with such procedures as the Board of Trustees
consider appropriate, reduce the remaining assets of the Company or of the
particular series thereof to distributable form in cash or other securities, or
any combination thereof, and distribute the proceeds to the Member of the
Company or such series in the manner set forth by resolution of the Board of
Trustees.
Section 13.2. References, Headings. The original or a copy of this
instrument and of each amendment hereto shall be kept in the office of the
Company where it may be inspected by the Member. Anyone dealing with the Company
may rely on a certificate by an officer or Trustee of the Company as to whether
or not any such amendments have been made and as to any matters in connection
with the Company hereunder, and with the same effect as if it were the original,
may rely on a copy certified by an officer or Trustee of the Company to be a
copy of this instrument or of any such amendments. In this instrument or in any
such amendment, references to this instrument, and all expressions like
"herein," "hereof" and "hereunder," shall be deemed to refer to this instrument
as a whole and as amended or affected by any such amendment, and masculine
pronouns shall be deemed to include the feminine and the neuter, as the context
shall require. Headings are placed herein for convenience of reference only, and
in case of any conflict, the text of this instrument, rather than the headings,
shall control. This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 13.3. Board of Trustees May Resolve Ambiguities. The Board of
Trustees may construe any of the provisions of this Agreement and the Bylaws
insofar as the same may appear to be ambiguous or inconsistent with any other
provisions hereof or in the Bylaws, and any such construction by the Board of
Trustees in good faith shall be conclusive as to the meaning to be given to such
provisions.
Section 13.4. Amendments. Except as otherwise specifically provided in
this Agreement, this Agreement may be amended at any time by an instrument in
writing signed by a majority of the then Board of Trustees with the consent of
the Member holding more than fifty percent (50%) of Membership Interests
entitled to vote except that an amendment which in the determination of the
Board of Trustees shall affect one or more series or classes of Membership
Interests but not all outstanding series or classes shall be authorized by vote
of a majority of the Membership Interests entitled to vote of each series and
class affected and no vote of the Membership Interests of a series or class not
affected shall be required. In addition, notwithstanding any other provision to
the contrary contained in this Agreement, the Board of Trustees may amend this
Agreement without the vote or consent of the Member (i) at any time if the Board
of Trustees deem it necessary in order for the Company or any series or class
thereby to meet the requirements of applicable Federal or State laws or
regulations, or the requirements of the Internal Revenue Code, (ii) to designate
series or classes or exercise other powers with respect thereto in accordance
with Section 4.1 and 4.2 of Article IV hereof, (iii) change the name of the
Company or to supply any omission, cure any ambiguity or cure, correct or
supplement any defective or inconsistent provision contained herein, or (iv) for
any reason at any time before a registration statement under the Securities Act
of 1933, as amended, covering the initial public offering of Membership
Interests has become effective and Membership Interests have been issued.
Section 13.5. Filing of Certificate of Cancellation. Upon the
dissolution and completion of winding up of the Company, the Board of Trustees
shall promptly file or cause to be filed a Certificate of Cancellation with the
Secretary of State of the State of Delaware. If there is no Board of Trustees,
then the Certificate of Cancellation shall be filed by the remaining Member; if
there are no remaining Member, the Certificate shall be filed by the last Person
to be the Member; if there is neither a Board of Trustees, remaining Member, or
a Person who last was the Member, the Certificate shall be filed by the legal or
personal representatives of the Person who last was the Member.
Section 13.6. Applicable Law. All questions concerning the
construction, validity, and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement shall be governed
by the internal law, not the law of conflicts, of the State of Delaware.
Section 13.7. Jurisdiction and Venue. Any suit involving any dispute or
matter arising under this Agreement may be brought in the federal or state court
located in the States of Illinois or Delaware having jurisdiction over the
subject matter of the dispute or matter. The Member hereby consents to the
exercise of personal jurisdiction by any such court with respect to any such
proceeding. The Member and the other parties hereto hereby consent to (i) the
non-exclusive jurisdiction of the courts of the States of Illinois of Delaware
and any Federal court sitting in Chicago, Illinois or Wilmington, Delaware, and
(ii) service of process by first-class mail.
IN WITNESS WHEREOF, the undersigned, being the Company, the Sole Member
of the Company and Sole Trustee, respectively, have executed this Agreement as
of the date first written above.
SOLE MEMBER:
By /s/ James A. Bowen
Its Sole Trustee and Member
JAMES A. BOWEN
1001 Warrenville Road
Lisle, Illinois 60532
BOARD OF TRUSTEES BY THE SOLE TRUSTEE
By /s/ James A. Bowen
Its Sole Trustee and Member
JAMES A. BOWEN
1001 Warrenville Road
Lisle, Illinois 60532
EXHIBIT A
OPERATING BYLAWS
OF
FT DEFINED PORTFOLIOS LLC
ARTICLE I
LIMITED LIABILITY COMPANY AGREEMENT
AND
OFFICES
Section 1.1. Agreement of Company. Pursuant to Section 6.1 of the
Amended and Restated Limited Liability Company Agreement, as from time to time
in effect (the "Agreement"), of FT Defined Portfolios LLC, the Delaware limited
liability company referenced in the Agreement (the "Company"), the Board of
Trustees of the Company is authorized to adopt these Bylaws provided that such
Bylaws are not inconsistent with the Agreement. Accordingly, with regards to any
provision of these Bylaws that is inconsistent with the Agreement, the terms of
the Agreement shall control.
Section 1.2. Other Offices. The Company may have such other offices
and places of business within or without the State of Delaware as the Board of
Trustees shall determine.
ARTICLE II
MEMBERS
Section 2.1. Place of Meetings. Meetings of the Member may be held at
such place or places within or without the State of Delaware as shall be fixed
by the Board of Trustees and stated in the notice of the meeting.
Section 2.2. Regular Meeting. There shall be no regular meetings of
the Member.
Section 2.3. Special Meeting. Special meetings of the Member for any
purpose or purposes may be called by the Chairman of the Board, the President or
two or more members of the Board of Trustees, and must be called at the written
request stating the purpose or purposes of the meeting, of at least 10 percent
of the Membership Interests entitled to vote at the meeting.
Section 2.4. Notice of Meetings. Notice stating the time and place of
the meeting and in the case of a special meeting the purpose or purposes thereof
and by whom called, shall be delivered by any reasonable means as determined by
the Trustees to the Member not less than ten nor more than sixty days prior to
the meeting, except where the meeting is an adjourned meeting and the date, time
and place of the meeting were announced at the time of the adjournment.
Section 2.5. Quorum and Action. (a) Thirty percent (30%) of the voting
power of the Membership Interests of the Company entitled to vote at a meeting
is a quorum for the transaction of business. If a quorum is present when a duly
called or held meeting is convened, the Membership Interests present may
continue to transact business until adjournment, even though the withdrawal of a
number of Membership Interests originally present leaves less than the
proportion or number otherwise required for a quorum.
(b) The Company shall take action by the affirmative vote of a
majority, except in the case of the election of Trustees which shall only
require a plurality, of the voting power of the Membership Interests present and
entitled to vote at a meeting of the Member at which a quorum is present, except
as may be otherwise required by the Investment Company Act of 1940, as amended
(the "1940 Act"), or the Agreement.
Section 2.6. Voting. At each meeting of the Member, each Membership
Interests then entitled to vote may be voted by the Member in person or by proxy
and shall be entitled to one vote for each Membership Interest. As provided in
Section 2.8 of the Agreement, to the extent required by applicable laws,
regulations and Commission positions, the Member is required to submit matters
requiring a vote to the Variable Annuity Owners and to vote each Membership
Interest in accordance with the instructions of the Variable Annuity Owner who
has an indirect right in the Membership Interest pursuant to a Policy issued by
Allmerica.
Section 2.7. Proxy Representation. The Member may cast or authorize the
casting of a vote through the filing of a written appointment of a proxy with an
officer of the Company at or before the meeting at which the appointment is to
be effective. The placement of a Member's name on a proxy pursuant to telephonic
or electronically transmitted instructions (including, without limitation,
instructions transmitted over the internet) obtained pursuant to procedures
which are reasonably designed to verify that such instructions have been
authorized by the Member, shall constitute execution of such proxy by or on
behalf of the Member. The appointment of a proxy is valid for eleven months,
unless a longer period is expressly provided in the appointment. No appointment
is irrevocable unless the appointment is coupled with an interest in the
Membership Interests. The Trustees may agree that any copy, facsimile
telecommunication, computer downloaded version or other reliable reproduction of
a proxy may be substituted or used in lieu of the original proxy for any and all
purposes for which the original proxy could be used, provided that such copy,
facsimile telecommunication, computer downloaded version or other reproduction
shall be a complete reproduction of the entire original proxy.
Section 2.8. Adjourned Meetings. Any meeting of the Member may be
adjourned to a designated time and place by the vote of a majority of the
Membership Interests present and entitled to vote thereat even though less than
a quorum is so present without any further notice except by announcement at the
meeting. An adjourned meeting may reconvene as designated, and when a quorum is
present any business may be transacted which might have been transacted at the
meeting as originally called.
ARTICLE III
BOARD OF TRUSTEES
Section 3.1. Qualifications and Number: Vacancies. Each Trustee
shall be a natural person. A Trustee need not be the Member, a citizen
of the United States, or a resident of the State of Delaware. The number
of Trustees of the Company, their term and election and the filling of
vacancies, shall be as provided in the Agreement.
Section 3.2. Powers. The business and affairs of the Company shall be
managed under the direction of the Board of Trustees. All powers of the Company
may be exercised by or under the authority of the Board of Trustees, except
those conferred on or reserved to the Member by law, the Agreement or these
Bylaws.
Section 3.3. Investment Polices. It shall be the duty of the Board of
Trustees to ensure that the purchase, sale, retention and disposal of portfolio
securities and the other investment practices of the Company are at all times
consistent with the investment objectives, policies and restrictions with
respect to securities investments and otherwise of the Company filed from time
to time with the Securities and Exchange Commission and as required by the 1940
Act, unless such duty is delegated to an investment adviser, administrator or
other party pursuant to a written contract, as provided in the Agreement. The
Board of Trustees may delegate the duty of management of the assets of the
Company to an individual or corporate investment adviser or subadviser to act as
investment adviser or subadviser pursuant to a written contract. However, the
Board of Trustees is responsible for the general supervision of the duties
performed for the Company by any such party.
Section 3.4. Meetings. Regular meetings of the Board of Trustees may be
held without notice at such times as the Board of Trustees shall fix. Special
meetings of the Board of Trustees may be called by the Chairman of the Board or
the President, and shall be called at the written request of two or more
Trustees. Unless waived by each Trustee, three days' notice of special meetings
shall be given to each Trustee in person, by mail, by telephone, or by telegram,
email or cable, or by any other means that reasonably may be expected to provide
similar notice. Notice of special meetings need not state the purpose or
purposes thereof. Meetings of the Board of Trustees may be held at any place
within or outside the United States. A conference among Trustees by any means of
communication through which the Trustees may simultaneously hear each other
during the conference constitutes a meeting of the Board of Trustees or of a
committee of the Board of Trustees, if the notice requirements have been met (or
waived) and if the number of Trustees participating in the conference would be
sufficient to constitute a quorum at such meeting. Participation in such meeting
by that means constitutes presence in person at the meeting.
Section 3.5. Quorum and Action. A majority of the members of the Board
of Trustees currently holding office, or in the case of a meeting of a committee
of the Board of Trustees, a majority of the members of such committee, shall
constitute a quorum for the transaction of business at any meeting. If a quorum
is present when a duly called or held meeting is convened, the Trustees present
may continue to transact business until adjournment, even though the withdrawal
of a number of Trustees originally present leaves less than the proportion or
number otherwise required for a quorum. At any duly held meeting at which a
quorum is present, the affirmative vote of the majority of the Trustees present
shall be the act of the Board of Trustees or the committee, as the case may be,
on any question, except where the act of a greater number is required by these
Bylaws or by the Agreement. No individual Trustee shall have the power to act
for or on behalf of, or to bind, the Company except as provided by the
Agreement, Bylaws or by a resolution of the Board of Trustees.
Section 3.6. Action by Written Consent in Lieu of Meetings of Board of
Trustees. An action which is required or permitted to be taken at a meeting of
the Board of Trustees or a committee of the Board of Trustees may be taken by
written action signed by the number of Trustees that would be required to take
the same action at a meeting of the Board of Trustees or committee, as the case
may be, at which all Trustees were present and voted. The written action is
effective when signed by the required number of Trustees, unless a different
effective time is provided in the written action. When written action is taken
by less than all Trustees, all Trustees shall be notified immediately of its
text and effective date.
Section 3.7. Committees. The Board of Trustees, by resolution adopted
by the affirmative vote of a majority of the Board of Trustees, may designate
from its members an Executive Committee, an Audit Committee and any other
committee or committees (which other committees may include non-Trustees), each
such committee to consist of two or more Trustees and to have such powers and
authority (to the extent permitted by law) as may be provided in such
resolution. Any such committee may be terminated at any time by the affirmative
vote of a majority of the Trustees.
ARTICLE IV
OFFICERS
Section 4.1. Number and Qualifications. The officers of the Company
shall include a Chairman of the Board, a President, a Controller, one or more
Vice Presidents (one of whom may be designated an Executive Vice President), a
Treasurer, and a Secretary. Any two or more offices may be held by the same
person. Unless otherwise determined by the Board of Trustees, each officer shall
be appointed by the Board of Trustees for a term which shall continue until his
successor shall have been duly elected and qualified, or until his death, or
until he shall have resigned or have been removed, as hereinafter provided in
these Bylaws. The Board of Trustees may from time to time elect, or delegate to
the Chairman of the Board or the President, or both, the power to appoint, such
officers (including one or more Assistant Vice Presidents, one or more Assistant
Treasurers and one or more Assistant Secretaries) and such agents as may be
necessary or desirable for the business of the Company. Such other officers
shall hold office for such terms as may be prescribed by the Board of Trustees
or by the appointing authority.
Section 4.2. Resignations. Any officer of the Company may resign at any
time by giving written notice of his resignation to the Board of Trustees, the
Chairman of the Board, the President or the Secretary. Any such resignation
shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its receipt,
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 4.3. Removal. An officer may be removed at any time, with or
without cause, by a resolution approved by the affirmative vote of a majority of
the Board of Trustees present at a duly convened meeting of the Board of
Trustees.
Section 4.4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled for the
unexpired portion of the term by the Board of Trustees, or in the manner
determined by the Board of Trustees.
Section 4.5. The Chairman of the Board. The Chairman of the Board
shall be elected from among the Board of Trustees. He shall be the chief
executive officer of the Company and shall:
(a) have general active management of the business of the
Company;
(b) when present, preside at all meetings of the Board of
Trustees and of the Member;
(c) see that all orders and resolutions of the Board of
Trustees are carried into effect;
(d) sign and deliver in the name of the Company any deeds,
mortgages, bonds, contracts or other instruments pertaining to the
business of the Company, except in cases in which the authority to sign
and deliver is required by law to be exercised by another person or is
expressly delegated by the Agreement or Bylaws or by the Board of
Trustees to some other officer or agent of the Company; and
(e) maintain records of and, whenever necessary, certify
all proceedings of the Trustees and the Member.
The Chairman of the Board shall be authorized to do or cause to be done
all things necessary or appropriate, including preparation, execution and filing
of any documents, to effectuate the registration from time to time of the
Membership Interests of the Company with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended. He shall perform all duties
incident to the office of Chairman of the Board and such other duties as from
time to time may be assigned to him by the Board of Trustees or by these Bylaws.
Section 4.6. The President. The President shall be the chief operating
officer of the Company and, subject to the Chairman of the Board, he shall have
general authority over and general management and control of the business and
affairs of the Company. In general, he shall discharge all duties incident to
the office of the chief operating officer of the Company and such other duties
as may be prescribed by the Board of Trustees and the Chairman of the Board from
time to time. The President shall also have the power to appoint and terminate
authorized persons and agents of the Company. In the absence of the Chairman of
the Board or in the event of his disability or inability to act or to continue
to act, the President shall perform the duties of the Chairman of the Board and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the Chairman of the Board.
Section 4.7. Executive Vice-President. In the case of the absence or
inability to act of the President and the Chairman of the Board, any Executive
Vice-President shall perform the duties of the President and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. Any Executive Vice-President shall perform all duties incident to the
office of Executive Vice-President and such other duties as from time to time
may be assigned to him by the Board of Trustees, the President or these Bylaws.
Section 4.8. Vice Presidents. Each Vice-President shall perform
all such duties as from time to time may be assigned to him by the Board of
Trustees, the Chairman of the Board or the President.
Section 4.9. Controller. The Controller shall:
(a) keep accurate financial records for the Company;
(b) render to the Chairman of the Board, the President
and the Board of Trustees, whenever requested, an account of all
transactions by and of the financial condition of the Company; and
(c) in general, perform all the duties incident to the office
of Controller and such other duties as from time to time may be
assigned to him by the Board of Trustees, the Chairman of the Board or
the President.
Unless the Board of Trustees determines otherwise, the Treasurer of the
Company shall also serve as Controller.
Section 4.10. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Company, except those which the Company
has placed in the custody of a bank or trust company pursuant to a
written agreement designating such bank or trust company as custodian
of the property of the Company, as required by Article X of the
Agreement;
(b) deposit all money, drafts, and checks in the name
of and to the credit of the Company in the banks and depositories
designated by the Board of Trustees;
(c) endorse for deposit all notes, checks, and drafts
received by the Company making proper vouchers therefor;
(d) disburse corporate funds and issue checks and
drafts in the name of the Company, as ordered by the Board of
Trustees; and
(e) in general, perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned
to him by the Board of Trustees, the Chairman of the Board or the
President.
Section 4.11. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided
for the purpose, the minutes of all meetings of the Board of Trustees,
the committees of the Board of Trustees and the Member;
(b) see that all notices are duly given in accordance
with the provisions of these Bylaws and as required by statute;
(c) be custodian of the records of the Company;
(d) see that the books, reports, statements, certificates
and other documents and records required by statute to be kept and
filed are properly kept and filed;
(e) Whenever necessary, certify all proceedings of the
Board of Trustees and the Member; and
(f) in general, perform all the duties incident to the office
of Secretary and such other duties as from time to time may be assigned
to him by the Board of Trustees, the Chairman of the Board or the
President.
Section 4.12. Salaries. The salaries of all officers shall be fixed
by the Board of Trustees.
ARTICLE V
MEMBERSHIP INTERESTS
Section 5.1. Membership Interest Certificates. No Membership
Interest certificates shall be issued.
Section 5.2. Books and Records; Inspection. The Company shall keep at
its principal executive office, or at another place or places within the United
States determined by the Board of Trustees, a Membership Interest register not
more than one year old, containing the name and address of the Member and the
number of Membership Interests held by the Member. The Company shall also keep,
at its principal executive office, or at another place or places within the
United States determined by the Board of Trustees, a record of the dates on
which certificates representing Membership Interests were issued, if applicable.
Section 5.3. Membership Interest Transfers. Upon compliance with any
provisions restricting the transferability of the Membership Interest that may
be set forth in the Agreement, these Bylaws, or any resolution or written
agreement in respect thereof, transfers of Membership Interests of the Company
shall be made only on the books of the Company by the registered holder thereof,
or by his attorney thereunto authorized by power of attorney duly executed and
filed with an officer of the Company, or with a transfer agent or a registrar
and on surrender of any certificate or certificates for such Membership
Interests properly endorsed and the payment of all taxes thereon. Except as may
be otherwise provided by law or these Bylaws, the person in whose name
Membership Interests stand on the books of the Company shall be deemed the owner
thereof for all purposes as regards the Company.
Section 5.4. Regulations. The Board of Trustees may make such
additional rules and regulations, not inconsistent with these Bylaws, as they
may deem expedient concerning the issue, certification, transfer and
registration of Membership Interests of the Company. They may appoint, or
authorize any officer or officers to appoint, one or more transfer agents or one
or more transfer clerks and one or more registrars.
Section 5.5. Record Date: Certification of Membership Interests.
(a) The Board of Trustees may fix a date not more than ninety (90) days before
the date of a meeting of the Member as the date for the determination of the
Membership Interests entitled to notice of and entitled to vote at the meeting
or any adjournment thereof.
(b) The Board of Trustees may fix a date for determining the Member
entitled to receive payment of any dividend or distribution or allotment of any
rights or entitled to exercise any rights in respect of any change, conversion
or exchange of Membership Interests.
(c) In the absence of such fixed record date, (i) the date for
determination of the Member entitled to notice of and entitled to vote at a
meeting of the Member shall be the later of the close of business on the day on
which notice of the meeting is mailed or the thirtieth day before the meeting,
and (ii) the date for determining the Member entitled to receive payment of any
dividend or distribution or an allotment of any rights or entitled to exercise
any rights in respect of any change, conversion or exchange of Membership
Interests shall be the close of business on the day on which the resolution of
the Board of Trustees is adopted.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Fiscal Year. The fiscal year of the Company shall be
as fixed by the Board of Trustees of the Company.
Section 6.2. Notice and Waiver of Notice. (a) Any notice of a meeting
required to be given under these Bylaws to the Member or the Board of Trustees,
or both, may be waived by any such person (i) orally or in writing signed by
such person before, at or after the meeting or (ii) by attendance at the meeting
in person or, in the case of the Member, by proxy.
(b) Except as otherwise specifically provided herein, all notices
required by these Bylaws shall be printed or written, and shall be delivered
either personally, by telecopy, telegraph or cable, or by mail or email or
courier or delivery service, and, if mailed, shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
Member or Trustee at his address as it appears on the records of the Company.
ARTICLE VII
AMENDMENTS
Section 7.1. These Bylaws may be amended or repealed, or new Bylaws may
be adopted, by the Board of Trustees at any meeting thereof or by action of the
Board of Trustees by written consent in lieu of a meeting.
Dated as of December 11, 2000
<TABLE>
<CAPTION>
EXHIBIT B*
NASDAQ TARGET 15 PORTFOLIO
PERCENTAGE OF
CAPITAL MEMBERSHIP
MEMBER ADDRESS CONTRIBUTION INTERESTS
<S> <C> <C> <C>
James A. Bowen 1001 Warrenville Road $0 100%
Lisle, Illinois 60532
</TABLE>
<TABLE>
<CAPTION>
FIRST TRUST 10 UNCOMMON VALUES
PERCENTAGE OF
CAPITAL MEMBERSHIP
MEMBER ADDRESS CONTRIBUTION INTERESTS
<S> <C> <C> <C>
James A. Bowen 1001 Warrenville Road $0 100%
Lisle, Illinois 60532
</TABLE>
* Amended December 11, 2000
EXHIBIT B
DATED DECEMBER 11, 2000
