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Amended and
Restated
AGREEMENT OF
CLUB
AS OF
SEPTEMBER 21, 1998
We, whose names are hereunto subscribed, do
by this agreement re-associate ourselves together as of this
21st day of September 1998, hereby continuing the existence
of the club without interruption and ratifying all past acts
taken in accordance with any prior version of this agreement
or any bylaws adopted pursuant thereto.
Name 1. The name by which this club shall be
known is MACANUDO
INVESTMENT CLUB.
Place 2. The place of business shall be in
the City of Boston, Massachusetts.
Purpose 3. The purposes of which this club is
formed are investment for experience and profit and
exchange and discussion of ideas.
Members and
shares 4. There
shall be a maximum of 15 members. Except as otherwise
expressly provided herein where votes by share (as opposed
to member) and super-majorities are required, all members
shall have equal voting powers. As of the date hereof, each
member has one share in the club and shares equally in
assets, profits, and losses. After the date hereof, the club
may by vote provide for splits or reverse splits of its
shares for such purposes as it deems proper, including
without limitation for the purpose of reducing the net asset
value per share and thus facilitating the admission of new
members, who must purchase at least one full share. After
any such split or reverse split, a member's interest in
assets, profits, and losses will be determined according to
the number of shares he holds. Any member who, at the time
he becomes such, purchases fewer than the number of shares
then held by the member or members holding the largest
number of shares held by any single member (the "Maximum
Interest") shall have five years from the date of his
admission to purchase, at any time of his choosing, such
number of additional shares as will give him a Maximum
Interest. For purposes of making such purchase, such
purchasing member shall notify the club in writing of his
intent to make such purchase (the date such notice is
received being the "Article 4 Notice Date"), and the
net asset value per share to be paid will be calculated as
of the close of business of the last day, preceding the date
of the next regular meeting (the "Regular Meeting Date")
following the Article 4 Notice Date, on which the New
York Stock Exchange was open. Such purchasing member's
payment must be received by the club within three business
days of the Regular Meeting Date, after which time the club
shall be under no obligation to sell any shares to such
member. If such purchase of a Maximum Interest is not made
within five years of admission, the club shall thereafter
have the option, exercisable at any time and in the club's
sole discretion, of treating such member as having withdrawn
and being therefore subject to the provisions of Article
10(C).
Meetings 5. There will be a regular meeting at
least once a month on the last Monday of each month or on
such other date as may be designated by the President or
agreed upon by majority vote of the members; provided,
however, that if the last Monday of any month shall be a
holiday, then the regular meeting in such month will be on
the immediately following Monday of the next month. Any
member may request additional meetings upon timely
notification to the other members.
Voting 6. The attendance of a quorum of members
shall be necessary to conduct a regular or duly noticed
special meeting. A quorum shall be 50 percent of the total
membership, provided that if this formula yields a mixed
number, the next higher whole number of members shall
constitute a quorum. A majority vote of those members
present at any meeting shall be required and sufficient for
any decision of the club, except as otherwise expressly
provided herein. A majority vote means more yeas than nays
and shall be binding on all the members.
Officers 7. There shall be a President, Vice
President, a Treasurer, a Clerk, and an Accountant
designated by the members, each of whom shall hold office
until his successor is designated. There shall also be a
Steward. The President when present shall preside at all
meetings. In the absence of the President, the Vice
President shall preside at meetings, and in his absence, the
Treasurer or such other member as the members may designate,
in that order. The Clerk shall keep a record of the votes
and proceedings of the club. The Treasurer shall have the
duties set forth in Article 9 hereof. The Accountant shall
maintain the capital and other accounts referred to in
Article 8 hereof. The Steward shall be responsible for
arrangements for food, beverages and entertainment. All the
foregoing officers will have such additional duties as the
members by bylaw or otherwise may designate. The club may
from time to time create such other offices and assign to
them such duties as it may deem advisable. A member may hold
more than one office at a time.
Capital and
Earnings 8. (A)(A)
Each member becoming such after the date hereof shall
contribute the net asset value (as defined in Article 11) of
the number of shares he purchases. The net asset value per
share to be paid by any member who becomes such after the
date hereof will be determined as of the close of business
of the last day, preceding the date of the meeting at which
such member's admission is voted by the club, on which the
New York Stock Exchange was open.
(B) Distributions of earnings or
capital shall require a two-thirds vote of the total shares
outstanding.
(C) There will be an annual fee
of two hundred dollars ($200) which must be paid to the
Treasurer in a timely fashion, such annual fee being due at
the time of any annual meeting of the club, and if for any
reason no annual meeting is held, no later than
September 30 of each year.
(D) Individual capital accounts
and other books of account will be maintained in accordance
with standards and procedures set forth in the bylaws or
otherwise adopted by the club. All books of account will at
all times be available and open to inspection and
examination by any member. Each calendar year, a full and
complete account of the condition of the club shall be made
to the members.
Investments and
Prohibited Acts 9.
The Treasurer shall be responsible for the custody of all
monies and securities of the club; he will retain monies in
a separate account and securities in the name of a nominee
or in a street name and shall buy and sell securities for
the club only as directed by majority vote of the members.
In addition to the Treasurer and in his absence, each
officer of the club, i.e., President, Vice President and
Clerk, acting singly, shall have the authority to buy and
sell securities for the club, but no officer shall place any
order to buy or sell securities except as directed by
majority vote of the members. Neither the Treasurer nor any
other member shall have the right or authority to borrow on
the credit of the club, nor to pledge the credit or assets
of the club, nor to make loans with the assets of the club,
nor to contract for the purchase of any property for the
club at a price in excess of the balance in the club's
account, nor to bind or obligate the club to any extent
whatsoever with respect to any matter outside the scope of
the club business, nor to use the club name, credit or
property for other than club purposes, nor to do any act
detrimental to the interests of the club or which would make
it impossible to carry on the business or affairs of the
club. The primary consideration in making investments should
be the appreciation of capital, placing equal importance on
decisions as to when to buy or sell and what to buy or
sell.
Termination of
Membership 10. (A)
Any member may resign or withdraw from the club by
delivering or causing to be delivered written notice to the
members at a regular meeting. In the event of the death or
incapacity of a member, receipt by the club of notice
thereof shall be treated as notice of such member's
withdrawal. Regardless of when notice of withdrawal is
actually received, the notice date for purposes of this
Article 10 (the "Article 10 Notice Date") shall be
deemed to be the date of the regular meeting next following
the date of such receipt.
(B) Delinquency by any member in
his quarterly payment in excess of 30 days shall result in
the termination of his membership, unless (i) such
delinquent member has made arrangements satisfactory to a
majority of non-delinquent members to cure such delinquency,
or (ii) a majority of non-deliquent members vote to extend
the time in which such delinquent payment may be made. In
the event of termination, the notice date shall be deemed to
be the date of the first regular meeting following the
thirty-first day of delinquency.
(C) When any member ceases to be
a member, by withdrawal, termination of membership, death or
incapacity, he or his personal representative shall be
deemed to have assigned all his right, title and interest as
a member to the club and at the time of the next regular
meeting following the notice date, he or his personal
representative shall receive and accept in full payment
therefor an amount equal to 90 percent of the net asset
value (as defined in Article 11) of such member's shares, or
shall pay to the club if the liabilities exceed the assets,
an amount equal to the net asset value (as defined in
Article 11) of such member's shares computed as of the
valuation date and less any amounts owed by him and overdue
to the club; provided, however, that during the first twelve
(12) months of membership, such member shall not receive
more than his total contribution. For purposes of this
Article 10, the valuation date shall be the close of
business on the last day, preceding the Article 10
Notice Date on which the New York Stock Exchange was
open.
Net Asset
Value 11. The term
"net asset value" shall mean the value of all the assets and
liabilities of the club determined in the following
manner:
(A)(A) Securities listed on an
exchange shall be appraised on the basis of the latest
reported sale thereof reasonably available as of the
valuation date. In the event there shall be no reported
sale of any particular security on such date, then the
reported closing bid price shall be used.
(B) Securities not so listed
and all other assets shall be valued by such method as
shall be deemed by the Treasurer to reflect their fair
market value, subject to approval of such method by
majority vote of the members.
(C) From the sum total of the
assets so computed, there shall be deducted all
liabilities and expenses chargeable to the club
account.
(D) The resulting amount
divided by the total number of shares outstanding shall
be the net asset value per share.
Bylaws 12. The members may by majority vote
adopt bylaws to provide for any additional officers,
rules, etc., as they may deem necessary for the more
efficient management of the business, but no bylaw in
conflict with or in derogation of these articles of the
club shall have any force or effect.
Amendments 13. This agreement may be amended or
terminated by affirmative vote of two-thirds of the total
shares outstanding. This agreement shall be effective
until so terminated.
Assigns,etc.
14. Except as provided in Article 10(C), a member may not
assign, pledge or otherwise transfer or encumber his
interest (or any part thereof) as a member without the
written consent of two-thirds of the total shares
outstanding (exclusive of the share(s) of the assigning
member). This agreement shall be binding on each member's
heirs, successors and assigns and shall be construed in
accordance with the laws of the Commonwealth of
Massachusetts.
In witness whereof, each of the
undersigned has hereunto set his hand and seal as of the day
and year first set forth above.
PRIOR
AMENDMENTS TO BYLAWS
Guest
Policy - adopted February 3, 1986
When a member wishes to have a
guest, whom he intends to propose for membership, attend a
regular meeting of the club, the member will so advise the
club at a regular meeting, and the club by majority vote
shall decide the date of the regular meeting to which the
guest shall be invited, taking into account the earliest
time at which the club would want any proffered membership
to be effective. Only one guest to be considered for
membership shall be invited to any regular meeting. No more
than two guests shall attend any regular meeting. Any member
who wishes to have a guest, who is not to be considered for
membership, attend a regular meeting, shall so notify the
president as far in advance of such meeting as
possible.
Admission of New Members -
adopted June 2, 1993
The vote on a candidate for
admission to the Club shall be conducted at a regularly
scheduled meeting in accordance with normal voting
procedures; provided, however, that no candidate shall be
voted on if before the meeting at which the vote on his
admission is to be held, three members object to his
admission. Any member wishing to object to a candidacy
should do so well before the meeting when the vote is to be
held and should convey such objection to the President and
the member proposing the candidate.
454114_4.WP6
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Macanudo Investment Club (a Mass. general
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