EX-10.11






Exhibit 10.11




THIRD AMENDED AND RESTATED




LIMITED LIABILITY COMPANY AGREEMENT




OF




CALAMOS HOLDINGS LLC




Effective as of March 1, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	FORMATION, TERM, PURPOSE AND POWERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Formation
	 	 	7	 
	SECTION 2.02. Name
	 	 	7	 
	SECTION 2.03. Term
	 	 	7	 
	SECTION 2.04. Offices
	 	 	7	 
	SECTION 2.05. Agent for Service of Process
	 	 	8	 
	SECTION 2.06. Business Purpose
	 	 	8	 
	SECTION 2.07. Powers of the Company
	 	 	8	 
	SECTION 2.08. Maintenance of Separate Existence
	 	 	8	 
	SECTION 2.09. No Personal Liability
	 	 	8	 
	SECTION 2.10. Admission of New Members
	 	 	8	 
	SECTION 2.11. Withdrawal
	 	 	8	 
	SECTION 2.12. Waiver of Fiduciary Duties
	 	 	8	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	MANAGEMENT
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Manager
	 	 	9	 
	SECTION 3.02. Compensation
	 	 	10	 
	SECTION 3.03. Reimbursements
	 	 	10	 
	SECTION 3.04. Authority of Members
	 	 	10	 
	SECTION 3.05. Voting Power
	 	 	10	 
	SECTION 3.06. Action by Written Consent
	 	 	10	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	OFFICERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Officers
	 	 	10	 
	SECTION 4.02. Management Policies
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	DISTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Distributions
	 	 	11	 
	SECTION 5.02. Liquidation Distribution
	 	 	12	 
	SECTION 5.03. Withholding
	 	 	12	 






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	 	 	Page	 
	SECTION 5.04. Limitations on Distribution
	 	 	12	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; TAX ALLOCATIONS; TAX
	 	 	 	 
	MATTERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Initial Capital Contributions
	 	 	12	 
	SECTION 6.02. Additional Capital Contributions
	 	 	12	 
	SECTION 6.03. Ownership Interests
	 	 	12	 
	SECTION 6.04. Members’ Capital Accounts
	 	 	13	 
	SECTION 6.05. Allocations of Net Profits and Net Losses
	 	 	14	 
	SECTION 6.06. Special Allocations
	 	 	14	 
	SECTION 6.07. Tax Allocations
	 	 	15	 
	SECTION 6.08. Tax Decisions
	 	 	16	 
	SECTION 6.09. Curative Allocations
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	BOOKS AND RECORDS; REPORTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Books and Records
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	CERTIFICATES; OWNERSHIP INTERESTS; RESTRICTIONS ON TRANSFER
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Certificates
	 	 	17	 
	SECTION 8.02. Legend
	 	 	17	 
	SECTION 8.03. Lost or Destroyed Certificates
	 	 	18	 
	SECTION 8.04. Reserved
	 	 	18	 
	SECTION 8.05. Incentive Plans
	 	 	18	 
	SECTION 8.06. Reserved
	 	 	18	 
	SECTION 8.07. Registered Members
	 	 	18	 
	SECTION 8.08. Restrictions on Transfer
	 	 	19	 
	SECTION 8.09. Permitted Transfers
	 	 	19	 
	SECTION 8.10. Transfers to Persons other than CFP Permitted Transferees
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	DISSOLUTION, LIQUIDATION AND TERMINATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. No Dissolution
	 	 	20	 
	SECTION 9.02. Events Causing Dissolution
	 	 	20	 
	SECTION 9.03. Distribution upon Dissolution
	 	 	20	 
	SECTION 9.04. Time for Liquidation
	 	 	21	 
	SECTION 9.05. Termination
	 	 	21	 
	SECTION 9.06. Claims of the Members
	 	 	21	 






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	 	 	Page	 
	ARTICLE X
	 	 	 	 
	LIABILITY AND INDEMNIFICATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01. Liability of Members
	 	 	21	 
	SECTION 10.02. Indemnification by the Company
	 	 	21	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.01. Severability
	 	 	23	 
	SECTION 11.02. Notices
	 	 	23	 
	SECTION 11.03. Cumulative Remedies
	 	 	24	 
	SECTION 11.04. Binding Effect
	 	 	24	 
	SECTION 11.05. Interpretation
	 	 	24	 
	SECTION 11.06. Counterparts
	 	 	24	 
	SECTION 11.07. Further Assurances
	 	 	24	 
	SECTION 11.08. Entire Agreement
	 	 	24	 
	SECTION 11.09. Governing Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL
	 	 	24	 
	SECTION 11.10. Specific Performance
	 	 	25	 
	SECTION 11.11. Expenses
	 	 	25	 
	SECTION 11.12. Amendments and Waivers
	 	 	25	 
	SECTION 11.13. No Third Party Beneficiaries
	 	 	25	 
	SECTION 11.14. Headings
	 	 	25	 
	SECTION 11.15. Construction
	 	 	26	 






Schedule I Members; Ownership Interests; Capital Accounts





iii









 








THIRD AMENDED AND RESTATED




LIMITED LIABILITY COMPANY AGREEMENT




OF




CALAMOS HOLDINGS LLC




          This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”)
of Calamos Holdings LLC, a Delaware limited liability company (the “Company”), is made and
entered into, effective as of March 1, 2009, by and among Calamos Family Partners, Inc., a Delaware
corporation (f/k/a Calamos Holdings Inc., “CFP”), John P. Calamos, Sr. and Calamos Asset
Management, Inc., a Delaware corporation (“CAM”).




 WITNESSETH: 




          WHEREAS, the Company was formed as a limited liability company pursuant to the Delaware
Limited Liability Company Act, 6 Del. C. Section 18-101, et seq., as it may be amended from
time to time (the “Act”), by the filing of a Certificate of Formation (the “Certificate
of Formation”) with the Office of the Secretary of State of the State of Delaware on October 6,
2004; and




          WHEREAS, the parties hereto desire to amend and restate the Second Amended and Restated
Limited Liability Company Agreement, dated as of November 2, 2004 entered into by CAM, CFP and John
P. Calamos, Sr. (the “Amended Agreement”), to reflect (i) the mechanism for the conversion
of interests in the Company into shares of Class A Common Stock (ii) the elimination of Units (as
such term is defined in the Second Amended and Restated Limited Liability Company Agreement) to
represent ownership interests in the Company, and (iii) a change to the address for notice of
service pursuant to the terms and conditions hereof.




          NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Members hereby agree as follows:




ARTICLE I

DEFINITIONS




          SECTION 1.01. Definitions. Capitalized terms used herein without definition have the
following meanings (such meanings being equally applicable to both the singular and plural form of
the terms defined):




          “Act” has the meaning set forth in the recitals of this Agreement.





     “Adjusted Capital Account Deficit” means, with respect to each Member, the
deficit balance, if any, in such Member’s Capital Account as of the end of the relevant
Fiscal Year, after giving effect to the following adjustments:



 









 






     (i) Credit to such Capital Account any amounts which such Member is obligated
to restore pursuant to any provision of this Agreement or is deemed to be obligated
to restore pursuant to the penultimate sentences of each of Sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Regulations; and




     (ii) Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.




     “Affiliate” means, with respect to a specified Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such specified Person.




     “Agreement” has the meaning set forth in the preamble of this Agreement.




     “Asset Value” means, with respect to any asset, the asset’s adjusted tax basis
for federal income tax purposes, except as follows: (i) the initial Asset Value of any asset
contributed by a Member to the Company shall be the gross fair market value of such asset,
as agreed by the contributing Member and the Manager; (ii) the Asset Values of all assets of
the Company shall be adjusted to equal their respective gross fair market values, as
determined by the Manager, as of the following times: (A) the acquisition of additional
Ownership Interest in the Company by any new or existing Member in exchange for more than a
de minimis Capital Contribution, (B) the distribution by the Company to a Member of more
than a de minimis amount of Company property as consideration for a Ownership Interest in
the Company, and (C) the liquidation of the Company within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g); provided, however, that an adjustment pursuant
to clause (A) or (B) shall be made only if the Manager reasonably determines that such an
adjustment is necessary or appropriate to reflect the relative economic interests of the
Members in the Company; (iii) the Asset Value of any Company property distributed to any
Member shall be adjusted to equal its fair market value on the date of distribution, as
agreed by the distributee Member and the Manager; and (iv) the Asset Value of each asset
shall be increased (or decreased) to reflect any adjustments to the adjusted tax basis of
such asset pursuant to Code Sections 734(b) or 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m). If the Asset Value of an asset has been determined or
adjusted pursuant to the preceding clause (i), (ii), or (iv), such Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Net Profits and Net Losses hereunder.




     “Bankruptcy” of a Member shall be deemed to occur for purposes of this
Agreement if:




     (i) an involuntary petition under any bankruptcy or insolvency Law or under the
reorganization provisions of any such Law is filed with respect to such Member or a
receiver of or for the property of such Member is appointed without acquiescence of
such Member, which petition or appointment remains



2









 






undischarged or unstayed for an aggregate period of ninety (90) days (whether
or not consecutive); or




     (ii) a voluntary petition under any bankruptcy or insolvency Law or under the
reorganization provisions of any such Law is filed by such Member, a voluntary
assignment of such Member’s property for the benefit of creditors is made, or a
receiver of or for the property of such Member is appointed by, or acquiesced in, by
such Member.




     “Beneficial Owner” or “Beneficially Own” has the meaning given such
term in Rule 13d-3 (as in effect on the date hereof) under the Exchange Act. For purposes
of this Agreement, a minor for whom Ownership Interests or other securities are held
pursuant to the Uniform Gifts to Minors Act or similar law shall be considered the
Beneficial Owner of such securities.




     “Board of Directors” means the Board of Directors of CAM.




     “Business Day” means any day, except a Saturday, Sunday or other day on which
commercial banking institutions in the State of New York are authorized or directed by Law
or executive order to close.




     “By-laws” means the Second Amended and Restated By-laws of CAM.




     “Calamos Family Members” means John P. Calamos, Sr., Nick P. Calamos and John
P. Calamos, Jr. and their respective Family Members.




     “CAM” has the meaning set forth in the preamble of this Agreement.




     “Capital Account” means the separate capital account maintained for each Member
in accordance with Section 6.04 hereof.




     “Capital Contribution” means, with respect to any Member, the aggregate amount
of money contributed to the Company and the Asset Value of any property (other than money)
contributed to the Company pursuant to Article VI.




     “Certificate of Formation” has the meaning set forth in the recitals of this
Agreement.




     “CFP” has the meaning set forth in the preamble of this Agreement.




     “CFP Permitted Transferee” means (i) any Calamos Family Member, (ii) any entity
Controlled by one or more Calamos Family Members, (iii) any trustee of a trust (or such
trust) for the primary benefit of (or any entity similar to a trust the beneficial interests
in which shall be primarily held by) one or more Calamos Family Members, (iv) the executor
or administrator of the estate of any deceased Calamos Family Member, (v) the guardian or
conservator of the estate of any disabled Calamos Family Member or (vi) the trustee of the
estate of any bankrupt or insolvent Calamos Family Member.




3











 






     “Class A Common Stock” means Class A common stock of CAM.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time,
or any corresponding federal tax statute enacted after the date of this Agreement. The
reference to a specific section of the Code refers not only to such specific section but
also to any corresponding provision of any federal tax statute enacted after the date of
this Agreement, as such specific section or corresponding provision is in effect on the date
of application of the provisions of this Agreement containing such reference.




     “Company” has the meaning set forth in the preamble of this Agreement.




     “Contingencies” has the meaning set forth in Section 9.03(b) of this Agreement.




     “Control” (including the terms “Controlled by” and “under common
Control with”) means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or otherwise, including,
without limitation, the ownership, directly or indirectly, of securities having the power to
elect a majority of the board of directors or similar body governing the affairs of such
Person.




     “Credit Amount” has the meaning set forth in Section 5.01(b)(ii) of this
Agreement.




     “Depreciation” means, for each Fiscal Year or other period, an amount equal to
the depreciation, amortization or other cost recovery deduction allowable for federal income
tax purposes with respect to an asset for such Fiscal Year or other period;
provided, however, that if the Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such Fiscal Year or other
period, Depreciation shall be an amount that bears the same ratio to such beginning Asset
Value as the federal income tax depreciation, amortization or other cost recovery deduction
with respect to such asset for such Fiscal Year or other period bears to such beginning
adjusted tax basis; and provided further that, if the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal Year or other
period is zero, Depreciation shall be determined with reference to such beginning Asset
Value using any reasonable method selected by the Manager.




     “Dissolution Event” has the meaning set forth in Section 9.02 of this
Agreement.




     “Exchange Act” means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.




     “Family Member” means, as applied to any individual, such individual’s parents,
siblings, spouse and descendants (whether natural or legally adopted) and the spouses of
such descendents.




     “Final Tax Amount” has the meaning set forth in Section 5.01(b)(ii) of this
Agreement.



4









 






     “Fiscal Year” means (i) the period commencing upon the formation of the Company
and ending on December 31, 2004, (ii) any subsequent twelve-month period commencing on
January 1 and ending on December 31, or (iii) any portion of the period described in clause
(ii) of this sentence for which the Company is required to allocate Net Profits, Net Losses
and other items of Company income, gain, loss or deduction pursuant to Article VI hereof.




     “GAAP” means United States generally accepted accounting principles as in
effect from time to time.




     “Incentive Plan” means the Calamos Asset Management, Inc. Incentive
Compensation Plan or any other incentive plan adopted by CAM in accordance with the approval
procedures set forth in the Second Amended and Restated Certificate of Incorporation or the
By-laws.




     “Law” means any statute, law, ordinance, regulation, rule, code, executive
order, injunction, judgment, decree or other order issued or promulgated by any national,
supranational, state, federal, provincial, local or municipal government or any
administrative or regulatory body with authority therefrom with jurisdiction over the
Company or any Member, as the case may be.




     “Liquidation Agent” has the meaning set forth in Section 9.03 of this
Agreement.




     “Manager” means CAM or any successor thereto.




     “Member” means, at any time, CFP, John P. Calamos, Sr. and CAM if, at such a
time, they hold Ownership Interests in the Company and any Person who at such a time holds
Ownership Interests in the Company.



          “Net Profit” and “Net Loss” shall mean, for each Fiscal Year or other period,
an amount equal to the Company’s taxable income or loss, respectively, for such year or period,
determined in accordance with Subchapter K of the Code (taking into account all items of income,
gain, loss, or deduction required to be stated separately pursuant to Subchapter K of the Code),
with the following adjustments:





	 	(i)	 	any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Net Profit or Net Loss pursuant to this
provision shall be added to such taxable income or loss;
	 
	 	(ii)	 	any expenditures of the Company described in Subchapter K of the Code relating
to expenditures which are neither deductible nor properly chargeable to capital, or
expenditures not otherwise taken into account in computing Net Profit or Net Loss
pursuant to this provision, shall be subtracted from such taxable income or loss;
	 
	 	(iii)	 	in the event assets of the Company are revalued pursuant to
Section 7.8, the amount of such adjustment shall be taken into account as gain
or loss from the disposition of such assets;




5









 






	 	(iv)	 	Book Gain or Book Loss from the sale or other disposition of any asset of the
Company shall be taken into account in lieu of any tax gain or tax loss recognized by
the Company by reason of such sale or other disposition;
	 
	 	(v)	 	in lieu of the depreciation, amortization and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such fiscal year or other period, computed as provided in this
Agreement; and
	 
	 	(vi)	 	any items that are specially allocated pursuant to Section 6.06 and 6.09 shall
not be taken into account.






     “Nonrecourse Deductions” shall have the meaning set forth in the Code.




     “Officers” has the meaning set forth in Section 4.01 of this Agreement.




     “Operating Companies” has the meaning set forth in Section 2.06 of this
Agreement.




     “Ownership Interest(s)” shall mean, with respect to a Member or a group of
Members, the percentage reflecting the interest of such Member or Members in the Company in
relation to the interest of all Members in the Company, as determined by using their
respective Capital Accounts. The respective Ownership Interests of the Members are set forth
in Schedule I attached hereto and shall be adjusted from time to time as set forth in this
Agreement.




     “Partner Nonrecourse Deduction” shall have the meaning set forth in Regulation
Section 1.704-2(i)(2).




     “Person” means any individual, corporation, partnership, limited partnership,
limited liability company, joint venture, trust, unincorporated or governmental organization
or any agency or political subdivision thereof.




     “Regulations” means the income tax regulations, including temporary
regulations, promulgated under the Code, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).




     “Regulatory Allocations” has the meaning set forth in Section 6.09 of this
Agreement.




     “Second Amended and Restated Certificate of Incorporation” means the Second
Amended and Restated Certificate of Incorporation of CAM, effective on March 1, 2009 with
the Secretary of State of the State of Delaware pursuant to the Delaware General Corporation
Law.




     “Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated by thereunder.



6









 






     “Tax Advances” has the meaning set forth in Section 5.01(b)(i) of this
Agreement.




     “Tax Amount” has the meaning set forth in Section 5.01(b)(i) of this Agreement.




     “Tax Matters Member” has the meaning set forth in Section 6.08 of this
Agreement.




     “Transfer” means, in respect of any Ownership Interest, property or other
asset, any sale, assignment, transfer, distribution or other disposition thereof, whether
voluntarily or by operation of Law.




     “Transferee” means any Person that is a transferee of a Member’s interest in
the Company, or part thereof.



ARTICLE II

FORMATION, TERM, PURPOSE AND POWERS




          SECTION 2.01. Formation. (a) The Company was formed as a limited liability company
under the provisions of the Act by the filing on October 6, 2004 of the Certificate of Formation
with the Secretary of State of the State of Delaware. Each of the Persons listed on Schedule I, by
virtue of the execution of this Agreement, are Members of the Company. The rights and liabilities
of the Members shall be as provided in the Act, except as is otherwise expressly provided herein.




          (b) Hereafter, the Manager or any officer designated by the Manager, as an authorized person
of the Company within the meaning of the Act, shall execute, deliver and file, or cause the
execution, delivery and filing of, all certificates (and any amendments and/or restatement thereof
or corrections thereto) required or permitted by the Act to be filed with the Secretary of State of
the State of Delaware.




          SECTION 2.02. Name. The name of the Company shall be, and the business of the
Company shall be conducted under the name of, Calamos Holdings LLC.




          SECTION 2.03. Term. The term of the Company shall commence on the date of the filing
of the Certificate of Formation, and the term shall continue for a term shall be perpetual, subject
to the provisions set forth in Article IX and applicable Law. The existence of the Company as a
separate legal entity shall continue until cancellation of the Certificate of Formation in the
manner required by the Act.




          SECTION 2.04. Offices. The Company’s principal office shall be located at 2020 Calamos Court, Naperville, Illinois
60563. The Company may have other offices at such other places within or without the State of
Delaware as the Manager from time to time may select.




7









 








          SECTION 2.05. Agent for Service of Process. The Company’s registered agent for
service of process in the State of Delaware shall be as set forth in the Certificate of Formation,
as the same may be amended by the Manager from time to time.




          SECTION 2.06. Business Purpose. The principal business purpose of the Company is to
act as a holding company for Calamos Partners LLC, Calamos Advisors LLC, Calamos Financial Services
LLC, Calamos Property Management LLC and Calamos Wealth Management LLC and such other operating
companies as may be formed from time to time (collectively, the “Operating Companies”) and
to have full management and control of the businesses of the Operating Companies, and to engage in
any and all other lawful activities which may be necessary or appropriate to engage, directly or
indirectly through other Persons, in the investment advisory, securities brokerage or properties
management business or any related business.




          SECTION 2.07. Powers of the Company. Subject to the limitations set forth in this
Agreement, the Company will possess and may exercise all of the powers and privileges granted to it
by the Act, by any other Law or this Agreement, together with all powers incidental thereto, so far
as such powers are necessary or convenient to the conduct, promotion or attainment of the purpose
of the Company set forth in Section 2.06.




          SECTION 2.08. Maintenance of Separate Existence. The Company shall do all things
necessary to maintain its limited liability company existence separate and apart from each Member
and any Affiliate of any Member, including holding regular meetings of the Members and maintaining
its books and records on a current basis separate from that of any Affiliate of the Company or any
other Person, and shall not commingle the Company’s assets with those of any Affiliate of the
Company or any other Person.




          SECTION 2.09. No Personal Liability. Except as provided by the Act, no Member shall
be personally liable for any obligations of the Company.




          SECTION 2.10. Admission of New Members. The Members of the Company are listed in
Schedule I. Subject to the prior written consent of all Members, a new Person may be admitted from
time to time as a Member; provided, however, that no Member may block the admission
as a Member of any Person to
whom Ownership Interests are transferred in connection with a merger or consolidation of CAM
or the Company, or any transaction having the same effect, approved in accordance with the By-laws
or any CFP Permitted Transferee. Each new Member shall execute an appropriate supplement to this
Agreement pursuant to which the new Member agrees to be bound by the terms and conditions of the
Agreement, as it may be amended from time to time.




          SECTION 2.11. Withdrawal. No Member shall have the right to voluntarily withdraw as
a Member of the Company other than following the transfer of all Ownership Interests held by such
Member, which transfer shall be in accordance with Article VIII.




          SECTION 2.12. Waiver of Fiduciary Duties. This Agreement is not intended to create
or impose any fiduciary duty on any of the Members or the Manager, or their respective Affiliates.
Notwithstanding anything to the contrary contained in this Agreement or otherwise



8









 






applicable
provision of law or equity, to the maximum extent permitted by the Act, a Member or Manager, and
their respective Affiliates, shall owe no duties (including fiduciary duties) to the Company or the
other Members; provided however that a Member or Manager shall have the duty to act
in accordance with the implied contractual covenant of good faith and fair dealing.
Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable
provision of law or equity, to the maximum extent permitted by the Act, no Member or Manager, or
their respective Affiliates, shall be liable to the Company or any other Member for breach of this
Agreement or any duty (including any fiduciary duty); provided that such Member or Manager
may be liable to the Company or any other Member for any act or omission that constitutes a bad
faith violation of the implied covenant of good faith and fair dealing.




ARTICLE III

MANAGEMENT




          SECTION 3.01. Manager. (a) The business, property and affairs of the Company shall
be managed under the exclusive direction of the Manager, which may from time to time by resolution
delegate authority to officers or to others to act on behalf of the Company.




          (b) Without limiting the foregoing provisions of this Section 3.01, the Manager shall have the
general power to manage or cause the management of the Company within the scope of the business
purpose set forth in Section 2.06, including the following powers which may, subject to any
limitations set forth in this Agreement, be delegated to officers of the Company:





     (i) to have developed and prepared a business plan each year which will set forth the
operating goals and plans for the Company;




     (ii) to execute and deliver or to authorize the execution and delivery of contracts,
deeds, leases, licenses, instruments of transfer and other documents in the ordinary course
of business on behalf of the Company;




     (iii) to employ, retain, consult with and dismiss such personnel as may be required for
accomplishment of the business purpose set forth in Section 2.06;




     (iv) to establish and enforce limits of authority and internal controls with respect to
all personnel and functions;




     (v) to engage attorneys, consultants and accountants for the Company;




     (vi) to develop or cause to be developed accounting procedures for the maintenance of
the Company’s books of account; and




     (vii) to do all such other acts as shall be specifically authorized in this Agreement
or by the Members in writing from time to time.



          (c) Notwithstanding anything to the contrary contained in this Agreement, including Section
2.06, (i) the transactions and agreements described in and authorized, adopted,




9









 







approved and
ratified in the Written Consent of the Members and Manager of the Company, dated as of November 2,
2004, are hereby confirmed as authorized, adopted, approved and ratified by the Company, the
Members and the Manager, and (ii) such Written Consent shall continue in full force and effect
notwithstanding the adoption of this Agreement and the amendment and restatement of the Amended
Agreement in its entirety.




          SECTION 3.02. Compensation. The Manager shall not be entitled to compensation for
services rendered to the Company in its capacity as Manager.




          SECTION 3.03. Reimbursements. Except as set forth in this Agreement or otherwise
agreed upon by the Members, the Company shall reimburse the Manager for any expenses incurred by
the Manager.




          SECTION 3.04. Authority of Members. Except as expressly provided herein, Ownership
Interests do not confer any rights upon the Members to participate in the control and management of
the business of the Company described in this Agreement, which conduct, control and management
shall be vested exclusively in the Manager. Except as otherwise expressly provided herein, in all
matters relating to or arising out of the conduct of the operation of the Company, the decision of
the Manager shall be the decision of the Company. Except as required by Law, or expressly provided
herein or by separate agreement with the Company, no Member who is not also a Manager (and acting
in such capacity) shall take any part in the control or management of the operation or business of
the Company in its capacity as a Member, nor shall any Member who is not also a Manager (and acting
in such capacity) have any right, authority or power to act for or
on behalf of or bind the Company in his or its capacity as a Member in any respect or assume
any obligation or responsibility of the Company or of any other Member. Notwithstanding the
foregoing, the Company may employ one or more Members from time to time, and such Members, in their
capacity as employees of the Company, may take part in the control and management of the business
of the Company to the extent such authority and power to act for or on behalf of the Company has
been delegated to them by the Manager.




          SECTION 3.05. Voting Power. Except as otherwise specifically set forth herein,
Members shall have no voting rights whatsoever.




          SECTION 3.06. Action by Written Consent. Any action required or permitted to be
taken by the Members pursuant to this Agreement shall be taken if all Members whose consent is
required consent thereto in writing.




ARTICLE IV

OFFICERS




          SECTION 4.01. Officers. The officers of the Company (the “Officers”) shall
at all times be identical to the then officers of CAM. Any changes in the officers of CAM, whether
by election, resignation, removal, death or otherwise, shall automatically and concurrently take
effect with respect to the Officers of the Company. No Officer may resign unless such Officer
concurrently resigns as an officer of CAM. Any resignation by an Officer shall constitute such
Officer’s concurrent resignation as an officer of CAM.




10









 








          SECTION 4.02. Management Policies. The Officers and employees of the Company shall
develop and implement management policies consistent with the general policies and programs
established by the Manager, as approved, in accordance with the By-laws.




ARTICLE V

DISTRIBUTIONS




          SECTION 5.01. Distributions. (a) The Manager, in its discretion, may authorize
distributions by the Company to the Members pro rata in accordance with their respective Ownership
Interests.




          (b)(i) Notwithstanding the foregoing, if the Manager reasonably determines that the Net
Profits of the Company for a Fiscal Year will give rise to net taxable income for the Members
(after giving effect to cumulative Net Losses from prior Fiscal Years available to offset
such Net Profits), the Manager shall cause the Company to distribute available cash for purposes of
allowing the Members to fund their respective income tax liabilities (the “Tax Advances”).
The Tax Advances payable with respect to any Fiscal Year shall be computed based upon the Manager’s
estimate of the net taxable income attributable to Net Profits of the Company for such Fiscal Year
(after giving effect to cumulative Net Losses from prior Fiscal Years available to offset such Net
Profits), multiplied by the highest combined tax rate (federal, state and local, taking into
account any deductions of state or local taxes against federal tax liability) applicable to any
Member or, in the case of CFP, any of its shareholders, taking into account the character of the
taxable income for tax purposes (the “Tax Amount”). For purposes of computing the Tax
Amount, the effect of any benefit to a Member under Section 743 of the Code, if any, will be
ignored. Tax Advances shall be distributed to the Members on a pro rata basis in accordance with
their respective Ownership Interests, but in no event shall the distributed amount exceed the
available cash of the Company, as determined in the reasonable discretion of the Manager.




          (ii) Tax Advances shall be calculated and paid no later than one day prior to each quarterly
due date for the payment of estimated taxes under the Code in the following manner: (i) for the
first quarterly period, 25% of the Tax Amount, (ii) for the second quarterly period, 50% of the Tax
Amount, less the prior Tax Advances for the Fiscal Year, (iii) for the third quarterly period, 75%
of the Tax Amount, less the prior Tax Advances for the Fiscal year and (iv) for the fourth
quarterly period, 100% of the Tax Amount, less the prior Tax Advances for the Fiscal Year.
Following each Fiscal Year, and no later than one day prior to the due date for the payment by
individuals or corporations, whichever is earlier, of income taxes for such Fiscal Year under the
Code, the Manager shall make a final calculation of the Tax Amount for such Fiscal Year (the
“Final Tax Amount”), and shall cause the Company to distribute a Tax Advance, subject to
the availability of cash, to the extent that the Final Tax Amount so calculated exceeds the
cumulative Tax Advances previously made by the Company in respect of such Fiscal Year. If the
Final Tax Amount is less than the cumulative Tax Advances previously made by the Company in respect
of the relevant Fiscal Year, then the difference (the “Credit Amount”) shall be applied
against, and shall reduce, the amount of Tax Advances made to the Members for subsequent Fiscal
Years. Any Credit Amount applied against future Tax Advances shall be treated as an amount
actually distributed pursuant to this Section 5.01(b) for purposes of the computations herein.




11









 








          (iii) Any Tax Advances made to a Member pursuant to this Section 5.01(b) shall be repaid to
the Company by reducing the amount of the next succeeding distribution or distributions which would
otherwise have been made to such Member pursuant to Section 5.01(a) or 9.03 hereof.




          SECTION 5.02. Liquidation Distribution. Distributions made upon liquidation of the
Company shall be made as provided in Section 9.03.




          SECTION 5.03. Withholding. (a) Each Member hereby authorizes the Company to
withhold from or pay on behalf of or with respect to such Member any amount of federal, state,
local or foreign taxes that
the Manager determines that the Company is required to withhold or pay with respect to any
amount distributable or allocable to such Member pursuant to this Agreement, including any taxes
required to be withheld by the Company pursuant to Sections 1441, 1442, 1445 or 1446 of the Code.
Any amount paid on behalf of or with respect to a Member shall constitute a loan by the Company to
such Member, which loan shall be repaid by such Member within fifteen (15) days after notice from
the Manager that such payment must be made unless (i) the Company withholds such payment from a
distribution which would otherwise be made to such Member or (ii) the Manager determines, in its
sole discretion, that such payment may be satisfied out of the available funds of the Company which
would, but for such payment, be distributed to such Member. Any withheld amounts described in
clauses (i) and (ii) of the preceding sentence shall be treated as having been distributed to such
Member.




          (b) A Member shall not have the status of, and is not entitled to the remedies available to, a
creditor of the Company with regard to distributions that such Member becomes entitled to receive
pursuant to this Agreement and the Act.




          SECTION 5.04. Limitations on Distribution. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution to any Member on
account of its Ownership Interests if such distribution would violate Section 18-607 of the Act or
other applicable Law.




ARTICLE VI

CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; TAX ALLOCATIONS; TAX

MATTERS




          SECTION 6.01. Initial Capital Contributions. The Members have made, on or prior to the
date hereof, Capital Contributions and hold Ownership Interests as specified opposite their
respective names on Schedule I.




          SECTION 6.02. Additional Capital Contributions. Except as otherwise provided herein,
no Member shall be required or permitted to make additional Capital Contributions to the Company
without the consent of all of the Members.




          SECTION 6.03. Ownership Interests. All Ownership Interests shall have identical
rights in all respects as all other Ownership Interests except as otherwise specified in this
Agreement. Each Member hereby agrees that its interest in the Company and its Ownership Interests
shall for all purposes be personal property. Schedule I to this Agreement may be




12









 







updated from time
to time to reflect changes in the information set forth therein accomplished in accordance with
this Agreement, and any such update shall not constitute an amendment to this Agreement and shall
not be subject to Section 11.12 hereof. Ownership Interests in the Company shall constitute a
“security” within the meaning of (i) Article 8 of the Uniform Commercial Code (including
Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and
(ii) the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter
substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law
Institute and the National Conference of Commissioners on Uniform State Laws and approved by the
American Bar Association on February 14, 1995.




          SECTION 6.04. Members’ Capital Accounts. No Member shall have any right to withdraw
any portion of its Capital Account, except as otherwise provided herein. No interest shall be paid
to any Member with respect to its Capital Contributions. Each Member’s initial Capital Account is
set forth on Schedule I, which initial Capital Accounts apply the principles of Regulation Section
1.704-1(b)(2)(iv)(d) and thereafter such Capital Accounts shall be adjusted as follows:





     (a) The Capital Account of each Member shall be increased by:




     (i) The amount of any Net Profits (and any items of income or gain), allocated to such
Member;




     (ii) The amount, if any, of any Company liabilities assumed by such Member or taken
subject to or in connection with the distribution of property to such Member by the Company;




     (iii) The amount of any cash contributed by the Member to the Company; and




     (iv) The initial Asset Value of property contributed to the Company by such Member.




     (b) The Capital Account of each Member shall be decreased by:




     (i) The amount of cash distributed to such Member by the Company;




     (ii) The amount of any Net Losses (and any items of deduction or loss) allocated to
such Member;




     (iii) The Asset Value of any property distributed to such Member by the Company; and




     (iv) The amount of any liabilities of such Member assumed by the Company or taken
subject to or in connection with the contribution of property by such Member to the Company.


The foregoing provisions and the other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations under Section 704(b) of the Code


13









 






and, to
the extent not inconsistent with the provisions of this Agreement, shall be interpreted and applied
in a manner consistent with such Regulations.




          SECTION 6.05. Allocations of Net Profits and Net Losses. Subject to the special allocations set forth in Sections 6.06 and 6.09 below, Net Profits
and Net Losses for each Fiscal Year shall be allocated among the Members pro rata in accordance
with their respective Ownership Interests.




          SECTION 6.06. Special Allocations. (a) Minimum Gain Chargeback. Except as
otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of
this Article VI, if there is a net decrease in partnership minimum gain during any Fiscal Year,
each Member shall be specially allocated items of Company income and gain for the Fiscal Year (and,
if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net
decrease in partnership minimum gain, determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Member pursuant thereto. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations.
This Section 6.06(a) is intended to comply with the minimum gain chargeback requirement in Section
1.704-2(f) of the Regulations and shall be interpreted consistently therewith.




          (b) Partner Minimum Gain Chargeback. Except as otherwise provided in Section
1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article VI, if there
is a net decrease in partner nonrecourse debt minimum gain attributable to a partner nonrecourse
debt during any Fiscal Year, each Member who has a share of the partner nonrecourse debt minimum
gain attributable to such partner nonrecourse debt, determined in accordance with Section
1.704-2(i)(5) of the Regulations, shall be specifically allocated items of Company income and gain
for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such
Member’s share of the net decrease in partner nonrecourse debt minimum gain attributable to such
partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(4) of the Regulations.
Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This
Section 6.06(b) is intended to comply with the minimum gain chargeback requirement in Section
1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.




          (c) Qualified Income Offset. In the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and
gain shall be specially allocated to each such Member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such
Member as quickly as possible, provided that an allocation pursuant to this Section 6.06(c) shall
be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit
after all other allocations provided for in this Article VI have been tentatively made as if this
Section 6.06(c) were not in the Agreement.




14









 








          (d) Gross Income Allocation. In the event any Member has a deficit Capital Account at
the end of any Fiscal Year which is in excess of the sum of (i) the amount such
Member is obligated to restore pursuant to any provision of this Agreement, and (ii) the
amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of
Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially
allocated items of Company income and gain in the amount of such excess as quickly as possible;
provided that an allocation pursuant to this Section 6.06(d) shall be made only if and to
the extent that such Member would have an Adjusted Capital Account Deficit in excess of such sum
after all other allocations provided for in this Article VI have been made as if Section 6.06(c)
and this Section 6.06(d) were not in the Agreement.




          (e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year shall be
allocated to the Members pro rata in accordance with their respective Ownership Interests.




          (f) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any Fiscal
Year shall be specially allocated to the Member who bears the economic risk of loss, or to the
Members in the proportions in which they bear the economic risk of loss, with respect to the
partner nonrecourse debt to which such Partner Nonrecourse Deductions are attributable in
accordance with Regulation Section 1.704-2(i).




          (g) Section 754 Adjustments. To the extent that an adjustment to the adjusted tax
basis of any Company asset under Code Section 734(b) or Code Section 743(b) is required, pursuant
to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account
in determining Capital Accounts as the result of a distribution to a Member in complete liquidation
of the Membership Interest of such Member, the amount of such adjustment to Capital Accounts shall
be treated as an item of gain (if the adjustment increases the adjusted tax basis of the asset) or
loss (if the adjustment decreases the adjusted tax basis of the asset), and such gain or loss shall
be specially allocated to the Members in accordance with their Percentage Interests if Regulations
Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made if
Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.




          SECTION 6.07. Tax Allocations. (a) In accordance with Code Section 704(c) and the
Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed
to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as
to take account of any variation between the adjusted basis of such property to the Company for
federal income tax purposes and its initial Asset Value (computed in accordance with the definition
of Asset Value).




          (b) In the event the Asset Value of any Company asset is adjusted pursuant to subparagraph
(ii) of the definition of Asset Value, subsequent allocations of income, gain, loss, and deduction
with respect to such asset shall take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Asset Value in the same manner as under Code Section
704(c) and the Regulations thereunder.




          (c) Any elections or other decisions relating to allocations under this Section 6.07 shall be
made by the Tax Matters Member in any manner that reasonably reflects the purpose and intention of
this Agreement. Allocations pursuant to this Section 6.07 are solely for




15









 







purposes of federal,
state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account, share of Net Profit, Net Loss or
distributions pursuant to any provision of this Agreement.




          SECTION 6.08. Tax Decisions. CAM shall be the initial “tax matters partner” within
the meaning of Section 6231(a)(7) of the Code (the “Tax Matters Member”). The Company
shall file as a partnership for federal, state and local income tax purposes, except where
otherwise required by Law. All elections required or permitted to be made by the Company, and all
other tax decisions and determinations relating to federal, state or local tax matters of the
Company, shall be made by the Tax Matters Member, in consultation with the Company’s attorneys
and/or accountants. Tax audits, controversies and litigations shall be conducted under the
direction of the Tax Matters Member. The Tax Matters Member shall keep the other Members
reasonably informed as to any tax actions, examinations or proceedings relating to the Company and
shall submit to the other Members, for their review and comment, any settlement or compromise offer
with respect to any disputed item of income, gain, loss, deduction or credit of the Company. As
soon as reasonably practicable after the end of each Fiscal Year, the Company shall send to each
Member a copy of IRS Schedule K-1, and any comparable statements required by applicable state or
local income tax Law, with respect to such Fiscal Year. The Company also shall provide the Members
with such other information as may be reasonably requested for purposes of allowing the Members to
prepare and file their own tax returns.




          SECTION 6.09. Curative Allocations. The allocations set forth in Section 6.06 (the
“Regulatory Allocations”) are intended to comply with certain requirements of the
Regulations. It is the intent of the Members that, to the maximum extent possible, all Regulatory
Allocations shall be offset either with other Regulatory Allocations or with special allocations of
other items of Company income, gain, loss or deduction pursuant to this Section 6.09. Accordingly,
notwithstanding any other provision of this Article VI (other than the Regulatory Allocations), the
Manager shall make such offsetting special allocations of Company income, gain, loss or deduction
in whatever manner the Manager determines appropriate so that, after such offsetting allocations
are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital
Account balance such Member would have had if the Regulatory Allocations were not part of this
Agreement and all Company items were allocated pursuant to this Article VI without regard to the
Regulatory Allocations. In exercising its discretion under this Section 6.09, the Manager shall
take into account future Regulatory Allocations under Section 6.06 that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Section 6.06.




ARTICLE VII

BOOKS AND RECORDS; REPORTS




          SECTION 7.01. Books and Records. At all times during the continuance of the Company,
the Company shall prepare and maintain separate books of account for the Company that shall show a
true and accurate record of all costs and expenses incurred, all charges made, all credits made and
received and all income derived in connection with the operation of the Company business in accordance with
GAAP. Such books of account shall at all times be




16









 







maintained at the principal place of business of
the Company and shall, solely to the extent required under applicable Law, be open to inspection
and examination at reasonable times by each Member and its duly authorized representatives.
Without limiting the foregoing, the Company shall keep at its principal office the following:




          (a) a current list of the full name and the last known street address of each Member;




          (b) a copy of the Certificate of Formation and this Agreement and all amendments thereto;




          (c) copies of the Company’s federal, state and local income tax returns and reports, if any,
for the three most recent years;




          (d) copies of any financial statements, if any, of the Company for the six most recent Fiscal
Years; and




          (e) such other documents with respect to the Company’s business as may reasonably be required
from time to time by the Manager.




ARTICLE VIII

CERTIFICATES; OWNERSHIP INTERESTS; RESTRICTIONS ON TRANSFER




          SECTION 8.01. Certificates. Ownership Interest in the Company shall be represented
by a certificate or certificates, setting forth upon the face thereof that the Company is a limited
liability company formed under the laws of the State of Delaware, the name of the Member to which
it is issued and Ownership Interests which such certificate represents. Such certificates shall be
entered in the books of the Company as they are issued, and shall be signed by the Chairman, Chief
Executive Officer or General Counsel of the Company. Upon any Transfer permitted under this
Agreement, the transferring Member shall surrender to the Company the certificates representing the
Ownership Interests transferred for cancellation and the Company shall issue to the transferee
certificates representing the Ownership Interests transferred and shall issue to the transferring
Member certificates representing the remaining Ownership Interests held by such transferring Member
after taking into account such Transfer and represented by such cancelled certificates. Each
certificate issued by the Company representing Ownership Interests shall contain the language in
the last sentence of Section 6.03.




          SECTION 8.02. Legend. The Company shall affix to each certificate issued by the
Company on or after the date hereof evidencing Ownership Interests issued to Members a legend in
substantially the following form:





“THE OWNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 OR AN



17









 






EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS.




THE OWNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN A THIRD AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT DATED AS OF MARCH
1, 2009, AS IT MAY BE AMENDED FROM TIME TO TIME, AND A STOCKHOLDERS’
AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF EACH OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
NO REGISTRATION OF TRANSFER OF OWNERSHIP INTERESTS WILL BE MADE ON
THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL
HAVE BEEN COMPLIED WITH.”



          SECTION 8.03. Lost or Destroyed Certificates. The Company may issue a new
certificate for Ownership Interests in place of any certificate or certificates theretofore issued
by it, alleged to have been lost or destroyed, upon the making of an affidavit of that fact, and
providing an indemnity in form and substance reasonably satisfactory to the Manager, by the Person
claiming the certificate to be lost or destroyed.




          SECTION 8.04. Reserved.




          SECTION 8.05. Incentive Plans. At any time CAM issues a share of Class A Common
Stock pursuant to an Incentive Plan (whether pursuant to the exercise of a stock option or the
grant of a restricted share award or otherwise), the following shall occur, notwithstanding
anything to the contrary contained herein: (i) CAM shall be deemed to have transferred such share
of Class A Common Stock to the Company as a capital contribution; (ii) the value of the capital
contribution shall be equal to the fair market value of shares of Class A Common Stock contributed;
(iii) the Class A Common Stock shall be deemed transferred to the appropriate employee pursuant to
the Incentive Plan; and (iv) the net proceeds of any such issuance of stock shall remain with the
Company.




          SECTION 8.06. Reserved.




          SECTION 8.07. Registered Members. The Company shall be entitled to recognize the
exclusive right of a Person registered on its records as the holder of the Ownership Interests for
all purposes and shall not be bound to recognize any equitable or other claim to or interest in
such Ownership Interests on the part of any other Person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the Act.




18









 








          SECTION 8.08. Restrictions on Transfer. Any Transfer of Beneficial Ownership of any
Ownership Interest by CFP or any CFP Permitted Transferee shall be subject to Sections 8.09 and
8.10.




          SECTION 8.09. Permitted Transfers. Notwithstanding anything in this Agreement to the
contrary, each of CFP and any CFP Permitted Transferee may Transfer record or Beneficial Ownership
of some or all of the Ownership Interests Beneficially Owned by it (and any rights it may have
under this Agreement):




          (a) to a CFP Permitted Transferee;




          (b) to CAM in exchange for Class A Common Stock in accordance with the Second Amended and
Restated Certificate of Incorporation; or




          (c) in the case of a CFP Permitted Transferee that is a trustee or other fiduciary,
pursuant to applicable Law or the terms of the trust agreement governing the applicable
trust;



provided, however, that the Manager is reasonably satisfied that the Transfer will
not cause the Company to qualify as a “publicly traded partnership,” as that term is defined in
Section 7704 of the Code; and, provided, further, that neither CFP nor any CFP
Permitted Transferee shall be prohibited from Transferring some or all of the Ownership Interests
held by it (and any rights it may have under this Agreement) in connection with any merger or
consolidation of CAM or the Company, or any transaction having the same effect, that is approved in
accordance with the By-Laws.




          SECTION 8.10. Transfers to Persons other than CFP Permitted Transferees. In the
event that Beneficial Ownership of Ownership Interests is Transferred to any Person that is not a
CFP Permitted Transferee (other than to CAM in exchange for Class A Common Stock in accordance with
the Second Amended and Restated Certificate of Incorporation), until such time, if any, that such
Ownership Interests become Beneficially Owned by a CFP Permitted Transferee, (a) the record holder
of such Transferred Ownership
Interests shall cease to exercise any rights or powers of a Member (other than as a third
party beneficiary with respect to Section 8.04) and (b) such Transferred Ownership Interests shall
not be deemed held by the record holder thereof (and such Ownership Interests shall not be taken
into account) for purposes of determining the number of votes to which such holder is entitled
pursuant to the Second Amended and Restated Certificate of Incorporation or By-laws;
provided that such record holder shall continue to be entitled to share in all profits and
losses (including Net Profits and Net Losses), to receive such distribution or distributions, and
to receive such allocation of income, gain, loss, deduction or credit or similar item to which the
record holder of such Ownership Interests was entitled prior to such Transfer; provided,
further, that nothing in this Section 8.10 shall be deemed to limit any rights that such
record holder of Ownership Interests may have under the Second Amended and Restated Certificate of
Incorporation (other than Section 3(a) of the Second Amended and Restated Certificate of
Incorporation) or By-laws.




19









 








ARTICLE IX

DISSOLUTION, LIQUIDATION AND TERMINATION




          SECTION 9.01. No Dissolution. The Company shall not be dissolved by the admission of
additional Members in accordance with the terms of this Agreement.




          SECTION 9.02. Events Causing Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of any of the following events (each, a
“Dissolution Event”):





     (a) the written consent of all Members;




     (b) the entry of a decree of judicial dissolution under Section 18-802 of the Act;




     (c) any event which makes it unlawful for the business of the Company to be carried on
by the Members;




     (d) any other event not inconsistent with any provision hereof causing a dissolution of
a limited liability company under the Act; or




     (e) the Bankruptcy of any Member; provided, however, that upon any such
event, the Company shall be deemed dissolved, but such dissolution shall not cause the
termination of the Company, it being understood and agreed that, upon any such dissolution,
the remaining Members may elect to continue to carry on the Company business pursuant to,
and subject to, all of the terms and provisions of this Agreement.



          SECTION 9.03. Distribution upon Dissolution. Upon dissolution, the Company shall
continue until the winding up of the affairs of the Company is completed. Upon the dissolution of
the Company, the Manager, or any other Person designated by the Manager (the “Liquidation
Agent”), shall take full account of the assets
and liabilities of the Company and shall, unless the Members agree otherwise, liquidate the
assets of the Company as promptly as is consistent with obtaining the fair value thereof. The
proceeds of any liquidation shall be applied and distributed in the following order:





     (a) First, to the payment of debts and liabilities of the Company (including payment of
all indebtedness to Members and/or their Affiliates, to the extent permitted by Law),
including the expenses of liquidation;




     (b) Second, to the establishment of any reserve which the Liquidation Agent shall deem
reasonably necessary for any contingent or unforeseen liabilities or obligations of the
Company (“Contingencies”). Such reserve may be paid over by the Liquidation Agent
to any attorney-at-law, or acceptable party, as escrow agent, to be held for disbursement in
payment of any Contingencies and, at the expiration of such period as shall be deemed
advisable by the Liquidation Agent for distribution of the balance in the manner hereinafter
provided in this Section 9.03; and



20









 






     (c) The balance, if any, to the holders of Ownership Interests, pro rata, in accordance
with their positive Capital Account balances (as determined after giving effect to all
allocations set forth in Article VI).



          SECTION 9.04. Time for Liquidation. A reasonable amount of time shall be allowed for the
orderly liquidation of the assets of the Company and the discharge of liabilities to creditors so
as to enable the Liquidation Agent to minimize the losses attendant upon such liquidation.




          SECTION 9.05. Termination. The Company shall terminate when all of the assets of the
Company, after payment of or due provision for all debts, liabilities and obligations of the
Company, shall have been distributed to the holders of Ownership Interests in the manner provided
for in this Article IX, and the Certificate of Formation shall have been cancelled in the manner
required by the Act.




          SECTION 9.06. Claims of the Members. The Members shall look solely to the Company’s
assets for the return of their Capital Contributions, and if the assets of the Company remaining
after payment of or due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members shall have no recourse against the
Company or any other Member or any other Person. No Member with a negative balance in such
Member’s Capital Account shall have any obligation to the Company or to the other Members or to any
creditor or other Person to restore such negative balance upon dissolution or termination of the
Company or otherwise.




ARTICLE X

LIABILITY AND INDEMNIFICATION




          SECTION 10.01. Liability of Members. Except as otherwise provided under the Act, the
debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company and neither any Member nor
the Manager shall be obligated or liable for any such debt, obligation or liability of the Company.
Except as otherwise provided by the laws of the State of Delaware, the debts, obligations and
liabilities of any Member, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liability of such Member and neither any other Member, the Manager (in its
capacity as such) nor the Company shall be obligated or liable for any such debt, obligation or
liability of such Member.




          SECTION 10.02. Indemnification by the Company. (a) The Company shall indemnify,
defend and hold harmless any Member, the Manager or other Person (and any of their respective
officers, directors, managers, employees and agents), who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of the Company)
by reason of the fact that he, she or it is or was a Member, the Manager, or an officer, director,
manager, employee or agent of the Company, the Manager or any Member, or is or was serving at the
request of the Company as a director, officer, manager, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, from and against




21









 







expenses (including
attorneys’ fees and expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Person in connection with such claim, action, suit or proceeding if
such Person acted in good faith and in a manner such Person reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to any criminal sanction or
proceeding, had no reasonable cause to believe that his, her or its conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Person did not act in good faith and in a manner which he, she or it reasonably believed to be in,
or not opposed to, the best interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his, her or its conduct was unlawful.




          (b) Expenses incurred in defending a civil or criminal action, suit or proceeding shall be
paid by the Company in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of any Member, the Manager, or any officer, director,
manager, employee or agent of the Company, the Manager or any Member to repay such amount if it
shall be ultimately determined by a court of competent jurisdiction from which no further appeal
may be taken or the time for appeal has lapsed that such Person is not entitled to be indemnified
by the Company pursuant to the terms and conditions of this Section 10.02.




          (c) The Company shall maintain insurance on behalf of any Person who is or was a Member, the
Manager, or an officer, director, employee or agent of the Company, the Manager or any Member, or
is or was serving at the request of the Company as an officer, director, manager, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against and incurred by such Person in any such capacity, or arising out of such Person’s
status as such, whether or not the Company would have the power to indemnify such Person against
such liability under this Section 10.02.




          (d) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 10.02 shall continue as to a Person who has ceased to be a Member, the Manager, or any
officer, director, manager, employee or agent of the Company, the Manager or any Member, and shall
inure to the benefit of the heirs, executors, administrators and other legal successors of such
Person.




          (e) The indemnification provided by this Section 10.02 shall not be deemed exclusive of any
other rights to indemnification to which those seeking indemnification may be entitled under any
agreement, determination of Members or otherwise.




          (f) Any indemnification hereunder shall be satisfied only out of the assets of the Company
(including insurance and any agreements pursuant to which the Company and indemnified Persons are
entitled to indemnification), and the Members shall not, in such capacity, be subject to personal
liability by reason of these indemnification provisions.




          (g) No Person shall be denied indemnification in whole or in part under this Section 10.02
because such Person had an interest in the transaction with respect to which the




22









 







indemnification
applies if the transaction was otherwise permitted by the terms of this Agreement.




ARTICLE XI

MISCELLANEOUS




          SECTION 11.01. Severability. If any term or other provision of this Agreement is
held to be invalid, illegal or incapable of being enforced by any rule of Law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions is not affected in any manner
materially adverse to any party. Upon a determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.




          SECTION 11.02. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be deemed to have been
duly given upon receipt)
by delivery in person, by courier service, by fax or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specification notice given in accordance with this
Section 11.02:





     (a) If to the Company, to:


Calamos Holdings LLC

2020 Calamos Court

Naperville, Illinois 60563

Attention: General Counsel

Fax: (630) 245-7511





     (b) If to John P. Calamos, Sr., to:


John P. Calamos

2020 Calamos Court

Naperville, Illinois 60563

Fax: (630) 245-7511





     (c) If to CFP, to:


Calamos Family Partners, Inc.

2020 Calamos Court

Naperville, Illinois 60563

Attention: John P. Calamos, Sr.

Fax: (630) 245-7511




23









 









     (d) If to CAM, to:


Calamos Asset Management, Inc.

2020 Calamos Court

Naperville, Illinois 60563

Attention: General Counsel

Fax: (630) 245-7511




          SECTION 11.03. Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or
waive its right to use any or all other remedies. Said rights and remedies are given in addition
to any other rights the parties may have by Law.




          SECTION 11.04. Binding Effect. This Agreement shall be binding upon and inure to the benefit of all of the parties and, to
the extent permitted by this Agreement, their successors, executors, administrators, heirs, legal
representatives and assigns.




          SECTION 11.05. Interpretation. Throughout this Agreement, nouns, pronouns and verbs
shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be
applicable. Unless otherwise specified, all references herein to “Articles,” “Sections” and
paragraphs shall refer to corresponding provisions of this Agreement.




          SECTION 11.06. Counterparts. This Agreement may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed and delivered shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement. Copies of executed
counterparts transmitted by telecopy or other electronic transmission service shall be considered
original executed counterparts for purposes of this Section 11.06.




          SECTION 11.07. Further Assurances. Each party shall perform all other acts and
execute and deliver all other documents as may be necessary or appropriate to carry out the
purposes and intent of this Agreement.




          SECTION 11.08. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.




          SECTION 11.09. Governing Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL. (a)
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware.




          (b) Any claim, action, suit or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions contemplated hereby
shall be heard and determined in any Delaware State or federal court sitting in the State of
Delaware, and each of the parties hereto hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom in any such claim, action, suit or
proceeding) and irrevocably waives, to the fullest extent permitted by law, any objection which it
may now or hereafter have to the laying of venue of any such claim, action,




24









 







suit or proceeding in
any such court or that any such claim, action, suit or proceeding which is brought in any such
court has been brought in an inconvenient forum.




          (c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF.




          SECTION 11.10. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties hereto shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at Law or in equity.




          SECTION 11.11. Expenses. Except as otherwise specified in this Agreement, all costs
and expenses, including, without limitation, fees and disbursements of counsel, financial advisors
and accountants, incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.




          SECTION 11.12. Amendments and Waivers. (a) Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by the all of the Members, or in the case of a waiver, by the party or parties
against whom the waiver is to be effective; provided however, that Schedule I to
this Agreement shall be deemed amended from time to time to reflect the admission of a new Member,
the withdrawal or resignation of a Member and the adjustment of the Ownership Interests resulting
from any Transfer or other disposition of Ownership Interests, in each case that is made in
accordance with the provisions hereof.




          (b) No failure or delay by any party in exercising any right, power or privilege hereunder
(other than a failure or delay beyond a period of time specified herein) shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies provided by Law.




          SECTION 11.13. No Third Party Beneficiaries. This Agreement shall be binding upon
and inure solely to the benefit of the parties hereto and their permitted assigns and successors
and except as provided in Section 8.10 nothing herein, express or implied, is intended to or shall
confer upon any other Person or entity, any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, any
obligation of the Members to make Capital Contributions to the Company under this Agreement is an
agreement only between the Members and no other person or entity, including the Company, shall have
any rights to enforce such obligations.




          SECTION 11.14. Headings. The headings and subheadings in this Agreement are included
for convenience and identification only and are in no way intended to describe, interpret, define
or limit the scope, extent or intent of this Agreement or any provision hereof.




25









 








          SECTION 11.15. Construction. Each party hereto acknowledges and agrees it has had
the opportunity to draft, review and edit the language of this Agreement and that no presumption
for or against any party arising out of drafting all or any part of this Agreement will be applied
in any dispute relating to, in connection with or involving this Agreement. Accordingly, the
parties hereby waive the benefit of any rule of Law or any legal decision which would require that
in cases of uncertainty, the language of a contract should be interpreted most strongly against the
party who drafted such language.




26









 








          IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this
Agreement to be duly executed by their respective authorized officers, in each case as of the date
first above stated.




	 	 	 	 	 
	 	CALAMOS FAMILY PARTNERS, INC.

 	 
	 	By:  	/s/ Cristina Wasiak
 	 
	 	 	Name:  	Cristina Wasiak 	 
	 	 	Title:  Senior Vice President, Chief Financial


Officer and Treasurer 	 
	 



	 	 	 	 	 
	 

	 	/s/ John P. Calamos, Sr.	 	 
	 

	 	 

John P. Calamos, Sr.
	 	 






	 	 	 	 	 
	 	CALAMOS ASSET MANAGEMENT, INC.

 	 
	 	By:  	/s/ James J. Boyne
 	 
	 	 	Name:  	James J. Boyne 	 
	 	 	Title:  Senior Vice President, General
Counsel 

and Secretary 	 



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SCHEDULE I




MEMBERS; OWNERSHIP INTERESTS; CAPITAL ACCOUNTS




	 	 	 	 	 	 	 	 	 
	Member 	 	Ownership Interests	 	Capital Account
	 	 	(as of 3/1/09)	 	(as of 12/31/07)
	Calamos Asset Management, Inc.
	 	 	21.43	%	 	$	450,973,775	 
	Calamos Family Partners, Inc.
	 	 	78.37	%	 	$	422,740,213	 
	John P. Calamos, Sr.
	 	 	0.2	%	 	$	3,873,427