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8-K
CALAMOS ASSET MANAGEMENT, INC. /DE/ filed this Form 8-K on 01/16/2009
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FORM 8-K
Table of Contents

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Form 8-K
 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): January 12, 2009
 
Calamos Asset Management, Inc.
(Exact Name of Registrant as Specified in Charter)
 
         
Delaware   0-51003   32-0122554
(State or Other Jurisdiction   (Commission File Number)   (I.R.S. Employer
of Incorporation)       Identification No.)
     
2020 Calamos Court    
Naperville, Illinois   60563
(Address of Principal Executive Offices)   (Zip Code)
REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE: (630) 245-7200
Not Applicable
(Former Name and Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 


Table of Contents

Item 1.01. Entry into a Material Definitive Agreement.
     Calamos Asset Management, Inc. (“Corporation”) is a member and the sole manager of Calamos Holdings LLC pursuant to a Second Amended and Restated Limited Liability Agreement of Calamos Holdings, as amended. Concurrent with the effective dates discussed in Item 5.03 for our Second Amended and Restated Certificate of Incorporation and our Second Amended and Restated By-laws, the Corporation will enter into a Third Amended and Restated Limited Liability Company Agreement of Calamos Holdings with Calamos Family Partners, Inc. and John P. Calamos, Sr. Mr. Calamos is our Chairman, Chief Executive Officer and Co-Chief Investment Officer and controls Calamos Family Partners. The current Limited Liability Agreement is being amended primarily to: (i) eliminate the 1 to 1 ratio of Class A common stock of the Corporation to membership units of Calamos Holdings; and (ii) de-unitize Calamos Holdings.
     This summary is qualified in its entirety by reference to the full text of the Third Amended and Restated Limited Liability Company Agreement of Calamos Holdings, which is attached as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
     By written consent on January 12, 2009, the Corporation’s stockholders owning a majority of the combined voting power of the outstanding shares of our Class A and Class B common stock approved amendments to our Amended and Restated Certificate of Incorporation. A definitive Information Statement was filed with the Securities and Exchange Commission on January 12, 2009 and is incorporated herein by reference. The amendments will be effective no earlier than February 3, 2009, or 20 days after the first date the Corporation’s Information Statement was first mailed to our stockholders and after filing a Second Amended and Restated Certificate of Incorporation with the Delaware Secretary of State. The changes were primarily to: (i) revise the formula pursuant to which the Class B voting rights are determined; and (ii) amend the exchange ratio governing the amount of Class A common stock shares issued upon exchange of the limited liability interests of Calamos Holdings.
     In conjunction with the amendments to our Amended and Restated Certificate of Incorporation, the Corporation’s By-laws were amended primarily to change “Membership Unit” references to “Ownership Interest” due to the de-unitization of Calamos Holdings. These changes will be concurrent with the amendments to our Amended and Restated Certificate of Incorporation.
     This summary is qualified in its entirety by reference to the full text of the Second Amended and Restated Certificate of Incorporation and Second Amended and Restated By-laws, which are attached as Exhibits 3.1 and 3.2 to this Form 8-K, respectively, and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
     (c) Exhibits
  3.1   Second Amended and Restated Certificate of Incorporation of the Corporation.
 
  3.2   Second Amended and Restated By-laws of the Corporation.
 
  10.1   Third Amended and Restated Limited Liability Company Agreement of Calamos Holdings LLC by and among Calamos Family Partners, Inc., John P. Calamos, Sr. and the Corporation.
 
  99.1   Information Statement pursuant to Section 14(c) of the Securities Exchange Act of 1934, as amended (incorporated by reference and filed with the Securities and Exchange Commission on January 12, 2009).

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Table of Contents

SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  CALAMOS ASSET MANAGEMENT, INC.
 
 
Date: January 16, 2009  By:   /s/ James J. Boyne    
    James J. Boyne
Senior Vice President,
General Counsel and Secretary 
 

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Table of Contents

         
Exhibit Index
     
Exhibit Number   Description
3.1
  Second Amended and Restated Certificate of Incorporation of the Corporation.
 
   
3.2
  Second Amended and Restated By-laws of the Corporation.
 
   
10.1
  Third Amended and Restated Limited Liability Company Agreement of Calamos Holdings LLC by and among Calamos Family Partners, Inc., John P. Calamos, Sr. and the Corporation.
 
   
99.1
  Information Statement pursuant to Section 14(c) of the Securities Exchange Act of 1934, as amended (incorporated by reference and filed with the Securities and Exchange Commission on January 12, 2009).

EX-3.1
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALAMOS ASSET MANAGEMENT, INC.
          Calamos Asset Management, Inc., a Delaware corporation (the “Corporation”) certifies as follows:
          1. The name of the corporation is Calamos Asset Management, Inc. The original certificate of incorporation and amended and restated certificate of incorporation were filed with the Secretary of State of the State of Delaware on July 23, 2004 and October 27, 2004, respectively.
          2. This Second Amended and Restated Certificate of Incorporation amends and restates in its entirety the Corporation’s Amended and Restated Certificate of Incorporation and has been duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”) and by written consent of the stockholders of the Corporation and duly executed and acknowledged by the officers of the Corporation in accordance with Section 103 of the DGCL.
          3. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:
ARTICLE I
Name
          The name of the corporation is Calamos Asset Management, Inc. (the “Corporation”).
ARTICLE II
Registered Office and Registered Agent
          The address of the registered office of the Corporation in the State of Delaware is Corporation Services Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of the registered agent of the Corporation at such address is Corporation Services Company.

 


 

ARTICLE III
Corporate Purpose
          The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE IV
Capital Stock
          Section 1. Shares, Classes and Series Authorized. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 606,001,000 shares, consisting of: (a) 600,000,000 shares of Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”); (b) 1,000 shares of Class B Common Stock, par value $0.01 per share (the “Class B Common Stock”); and (c) 6,000,000 shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”), issuable in one or more series as hereinafter provided. The Class A Common Stock and the Class B Common Stock shall hereinafter collectively be called the “Common Stock”. The number of authorized shares of any class or classes of capital stock of the Corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the Common Stock, voting together as a single class, irrespective of the provisions of Section 242(b)(2) of the DGCL or any corresponding provision hereinafter enacted.
          Section 2. Preferred Stock. Authority is hereby expressly vested in the Board of Directors of the Corporation (the “Board”), subject to the provisions of this Article IV and to the limitations prescribed by law, without shareholder action, to authorize the issue from time to time of one or more series of Preferred Stock and with respect to each such series to fix by resolution or resolutions adopted by the affirmative vote of the Board providing for the issue of such series the voting powers, full or limited, if any, of the shares of such series and the designations, preferences and relative, participating, optional or other special rights and the qualifications, limitations or restrictions thereof. The authority of the Board with respect to each series shall include, but not be limited to, the determination or fixing of the following:
     (i) the designation and number of shares of such series;
     (ii) the dividend rate of such series, the conditions and dates upon which such dividends shall be payable, the relation which such dividends shall bear to the dividends payable on any other class or classes or series of the Corporation’s capital stock, and whether such dividends shall be cumulative or non-cumulative;
     (iii) whether the shares of such series shall be subject to redemption for cash, property or rights, including securities of the Corporation or of any other corporation, by the Corporation at the option of either the Corporation or the holder or both or upon the happening of a specified event, and, if made subject to any such redemption, the times or events, prices and other terms and conditions of such redemption;

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     (iv) the terms and amount of any sinking fund provided for the purchase or redemption of the shares of such series;
     (v) whether or not the shares of such series shall be convertible into, or exchangeable for, at the option of either the holder or the Corporation or upon the happening of a specified event, shares of any other class or classes or of any other series of the same or any other class or classes of the Corporation’s capital stock, and, if provision be made for conversion or exchange, the times or events, prices, rates, adjustments and other terms and conditions of such conversions or exchanges;
     (vi) the restrictions, if any, on the issue or reissue of any additional Preferred Stock;
     (vii) the rights of the holders of the shares of such series upon the voluntary or involuntary liquidation, dissolution or winding-up of the Corporation; and
     (viii) the provisions, if any, as to voting (which may be one or more votes per share or a fraction of a vote per share), optional and/or other special rights and preferences, if any.
          Section 3. Common Stock; Voting; Directors. (a) Rights and Privileges; Voting Rights. (i) All shares of Common Stock will be identical in all respects and will entitle the holders thereof to the same rights and privileges, except as otherwise provided in this Second Amended and Restated Certificate of Incorporation or as otherwise provided by law.
     (ii) The shares of Common Stock shall entitle the holders thereof to the following voting rights:
     (1) Each share of Class A Common Stock shall entitle the holder thereof to one (1) vote in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation.
     (2) Each share of Class B Common Stock shall entitle the holder thereof to the following number of votes in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation: ten (10) multiplied by the sum of (A) the aggregate number of shares of Class B Common Stock held by such holder and (B) (I) the product of (x) the Ownership Interest, as such term is defined in the Calamos Holdings LLC (“CHLLC”) Limited Liability Company Agreement as amended (the “LLC Agreement”) (any such Ownership Interest, an “Ownership Interest”), of such holder, taken to eight decimal places, and (y) 100,000,000, divided by (II) the number of shares of Class B Common Stock owned by such holder. In the event the Class B Common Stock is subdivided (by any stock split, stock dividend, reclassification, recapitalization or otherwise) or combined (by reverse stock split, reclassification, recapitalization or otherwise) the factor in subclause (y) of this provision shall be proportionately adjusted.

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     (3) For so long as Class B Common Stock remains issued and outstanding, the holders of the Class B Common Stock, voting separately as a class, shall be entitled to elect such number of directors of the Board as set out in the by-laws of the Corporation, which shall in no event be less than two (2) directors (each a “Class B Director”), and all remaining directors shall be elected by the vote of the holders of the Common Stock, voting together as a single class.
     (4) Except as otherwise required in this Second Amended and Restated Certificate of Incorporation or the by-laws of the Corporation or by applicable law, the holders of shares of Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders of the Corporation (or if any holders of shares of Preferred Stock are entitled to vote together with the holders of Common Stock, as a single class with such holders of shares of Preferred Stock).
     (b) Dividends and Distributions.
     (i) Subject to the preferences applicable to Preferred Stock, if any, outstanding at any time, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Corporation’s Board from time to time out of assets or funds of the Corporation legally available therefor; provided that, subject to the provisions of this Section, the Corporation shall not pay dividends or make distributions to any holders of any class of Common Stock unless simultaneously with such dividend or distribution, as the case may be, the Corporation makes the same dividend or distribution with respect to each outstanding share of Common Stock regardless of class.
     (ii) In the case of dividends or other distributions payable in Class A Common Stock or Class B Common Stock including distributions pursuant to stock splits or divisions of Class A Common Stock or Class B Common Stock which occur after the first date upon which the Corporation has issued any shares of Class A Common Stock or Class B Common Stock, only shares of Class A Common Stock shall be distributed with respect to Class A Common Stock and only shares of Class B Common Stock shall be distributed with respect to Class B Common Stock. In the case of any such dividend or distribution payable in shares of Class A Common Stock or Class B Common Stock, the number of shares of each class of Common Stock payable per share of such class of Common Stock shall be equal in number.
     (iii) In the case of dividends or other distributions consisting of other voting securities of the Corporation or of voting securities of any corporation which is a wholly owned subsidiary of the Corporation, the Corporation shall declare and pay such dividends in two separate classes of such voting securities, identical in all respects,

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except that: (1) the voting rights of each such security paid to the holders of Class B Common Stock, when compared to the voting rights of each such security paid to the holders of Class A Common Stock, shall have voting rights determined pursuant to the same formula as provided in Article IV, Section 3(a)(ii)(2) above; and (2) such security paid to the holders of Class B Common Stock shall convert into the security paid to the holders of Class A Common Stock upon the same terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of Class B Common Stock.
     (iv) In the case of dividends or other distributions consisting of securities convertible into, or exchangeable for, voting securities of the Corporation or voting securities of another corporation which is a wholly owned subsidiary of the Corporation, the Corporation shall provide that such convertible or exchangeable securities and the underlying securities be identical in all respects (including, without limitation, the conversion or exchange rate), except that: (1) the voting rights of each security underlying the convertible or exchangeable security paid to the holders of Class B Common Stock, when compared to the voting rights of each security underlying the convertible or exchangeable security paid to the holders of the Class A Common Stock, shall have voting rights determined pursuant to the same formula as provided in Article IV, Section 3(a)(ii)(2) above; and (2) such securities underlying the convertible or exchangeable securities paid to the holders of the Class B Common Stock shall convert into the securities underlying the convertible or exchangeable securities paid to the holders of Class A Common Stock upon the same terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of the Class B Common Stock.
     (c) Conversion of Class B Common Stock; Exchange of Ownership Interests.
     (i) Each holder of Class B Common Stock shall be entitled to convert, at any time and from time to time, any or all of the shares of such holder’s Class B Common Stock, on a one-for-one basis, into the same number of fully paid and non-assessable shares of Class A Common Stock. Such right shall be exercised by the surrender to the Corporation of the certificate or certificates representing the shares of Class B Common Stock to be converted at any time during normal business hours at the principal executive offices of the Corporation or at the office of the Corporation’s transfer agent (the “Transfer Agent”), accompanied by a written notice of the holder of such shares stating that such holder desires to convert such shares, or a stated number of the shares represented by such certificate or certificates, into an equal number of shares of Class A Common Stock, and (if so required by the Corporation or the Transfer Agent) by instruments of transfer, in form satisfactory to the Corporation and to the Transfer Agent, duly executed by such holder or such holder’s duly authorized attorney, and transfer tax stamps or funds therefor, if required pursuant to Article IV, Section 3(c)(ix) below.

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     (ii) Subject to adjustment as provided in Article IV, Section 3(d) below, each holder (other than the Corporation) of an Ownership Interest (an “Exchanging Holder”) shall be entitled to exchange, at any time and from time to time, any or all of such holder’s Ownership Interests, into the number of fully paid and non-assessable shares of Class A Common Stock determined by:
  (1)   Multiplying:
 
      (a)  the sum of (i) number of outstanding shares of Class A Common Stock and (ii) the number of outstanding shares of Class B Common Stock, by
 
      (b)  the fair market value of a share of class A Common Stock which shall be determined for purposes of this subsection as follows: (i) at such time as the shares of the Class A Common Stock are traded through the Nasdaq Stock Market or a national stock exchange (an “Exchange”), fair market value shall, except as otherwise determined by a majority of the independent directors of the Board, be equal to the closing price (without reference to after hours or extended hours trading) on the determination date for sales made and reported through the Exchange on which the shares are then listed and which constitutes the principal market for the shares or, if no sales of shares shall have been so reported with respect to that day, on the next preceding day with respect to which sales were reported; or (ii) at such time as the shares are not so traded through an Exchange, fair market value shall be equal to such amount as a majority of the independent directors of the Board, in their sole discretion, shall determine (the “FMV Per Share”);
 
      with the product being the Corporation’s total market value (the “Total Market Value”);
 
  (2)   Subtracting from the Total Market Value the value of the net assets of the Corporation other than its Ownership Interest, as determined by a majority of the independent directors of the Board, provided that if such value is less than zero, then the value of said net assets shall be zero for purposes of this subsection;
 
      with the result being the imputed CHLLC portion of the Corporation’s Total Market Value (the “CAM Imputed CHLLC Value”);
 
  (3)   Dividing the CAM Imputed CHLLC Value by the Corporation’s Ownership Interest, taken to eight decimal places, to arrive at the total imputed CHLLC enterprise value (the “Imputed CHLLC Enterprise Value”);

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  (4)   Multiplying the Imputed CHLLC Enterprise Value by the Ownership Interest, taken to eight decimal places, being exchanged by the Exchanging Holder to arrive at the value of the exchanged interest (the “CHLLC Exchanged Interest Value ”); and
 
  (5)   Dividing the CHLLC Exchanged Interest Value by the FMV Per Share as determined in Section (3)(c)(ii)(1)(b) above with the absolute value of the quotient being the number of shares of Class A Common Stock into which the exchanged Ownership Interest shall be exchanged (the “Class A Shares Number”).
     In the event the CHLLC Exchanged Interest Value determined above is a negative number, the Exchanging Holder shall also be obligated to deliver to the Corporation cash or other assets (including shares of Class A Common Stock) in an amount equal to two (2) times the dollar amount of the absolute value of CHLLC Exchanged Interest Value along with the Ownership Interest being exchanged, in return for that number of shares of Class A Common Stock of the Corporation equal to the Class A Shares Number.
     (iii) Such right shall be exercised by the surrender to the Corporation of the certificate or certificates representing the Ownership Interest to be exchanged at any time during normal business hours at the principal executive offices of the Corporation or at the office of the Transfer Agent, accompanied by a written notice of the Exchanging Holder stating that such Exchanging Holder desires to exchange such Ownership Interest, or a stated portion of such Ownership Interests represented by such certificate or certificates, into of shares of Class A Common Stock, funds (if applicable), and by instruments of transfer to the Corporation, in form satisfactory to the Corporation and to the Transfer Agent, duly executed by such Exchanging Holder or such Exchanging Holder ‘s duly authorized attorney, and transfer tax stamps or funds if required pursuant to Article IV, Section 3(c)(ix) below.
     (iv) Each share of Class B Common Stock transferred by one or more CFP Permitted Transferees (as defined below) to one or more persons or entities other than CFP Permitted Transferees shall automatically convert into one (1) fully paid and non-assessable share of Class A Common Stock upon such disposition; provided that no such conversion shall occur solely as a result of the pledge or hypothecation of any Class B Common Stock by a CFP Permitted Transferee or the pledge, hypothecation, short sale, put, call, option or other contract or arrangement in connection with any hedging or other derivative transaction with respect to any Class B Common Stock by a CFP Permitted Transferee. “CFP Permitted Transferee” shall have the meaning ascribed thereto in the LLC Agreement.
     (v) If at any time the sum of (1) the aggregate Ownership Interests owned by the holders of the Class B Common Stock and (2) the product of (A) (I) the sum of (x) the number of shares of Class B Common Stock outstanding and (y) the number of shares of Class A Common Stock held by the holders of such Class B Common Stock, divided by (II) the total number of shares of Class A Common Stock and Class B Common Stock outstanding; and (B) the Ownership Interest owned by the Corporation, constitutes less than fifteen percent (15%) of all then existing Ownership Interests, then each share of Class B Common Stock then issued and outstanding shall thereupon be

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converted automatically as of such date into one (1) fully paid and non-assessable share of Class A Common Stock. Upon the determination by the Corporation that such automatic conversion has occurred, notice of such automatic conversion shall be given by the Corporation by means of a press release and written notice to all holders of Class B Common Stock, and shall be given as soon as practicable, and the Secretary of the Corporation shall be instructed to, and shall promptly, request from each holder of Class B Common Stock that each such holder promptly deliver, and each such holder shall promptly deliver, the certificate representing each such share of Class B Common Stock to the Corporation for exchange hereunder, together with instruments of transfer, in form satisfactory to the Corporation and the Transfer Agent, duly executed by such holder or such holder’s duly authorized attorney, together with transfer tax stamps or funds if required pursuant to Article IV, Section 3(c)(ix) below. The Class B Directors shall remain on the Board until the next annual meeting of stockholders following the automatic conversion of the Class B Common Stock at which meeting the Class B Directors may be replaced by directors elected by the vote of the holders of the Common Stock, voting together as a single class, or the Board may reduce the size of the Board. If a Class B Director resigns upon or following such automatic conversion of the Class B Common Stock and prior to such annual meeting, the vacancy may be filled by the Board, without the approval of the other Class B Director, or the Board may reduce the size of the Board by such resignation.
     (vi) As promptly as practicable following the surrender for conversion of a certificate representing shares of Class B Common Stock in the manner provided in Article IV, Section 3(c)(i),(iv) or (v) above, or the surrender for exchange of a certificate representing Ownership Interests in the manner provided in Article IV, Section 3(c)(iii) above, as applicable, and the payment in cash of any amount required by the provisions of Article IV, the Corporation shall deliver or cause to be delivered at the office of the Transfer Agent, a certificate or certificates representing the number of shares of Class A Common Stock issuable upon such conversion or exchange, issued in such name or names as such holder may direct. Such conversion or exchange shall be deemed to have been effected immediately prior to the close of business on the date of the surrender of the certificate or certificates representing shares of Class B Common Stock or Ownership Interests, as the case may be, which date shall be the determination date for purposes of Section 3(c)(iii) above. Upon the date any such conversion or exchange is made or effected, all rights of the holder of such shares of Class B Common Stock or Ownership Interests as such holder shall cease, and the person or persons in whose name or names the certificate or certificates representing the shares of Class A Common Stock are to be issued shall be treated for all purposes as having become the record holder or holders of such shares of Class A Common Stock; provided, however, that if any such surrender and payment occurs on any date when the stock transfer books of the Corporation shall be closed, the person or persons in whose name or names the certificate or certificates representing shares of Class A Common Stock are to be issued shall be deemed the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which the stock transfer books are open.

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     (vii) In the event of a reclassification or other similar transaction as a result of which the shares of Class A Common Stock are converted into another security, then a holder of Class B Common Stock or Ownership Interests shall be entitled to receive upon conversion or exchange the amount of such security that such holder would have received if such conversion or exchange had occurred immediately prior to the effective date of such reclassification or other similar transaction. No adjustments in respect of dividends shall be made upon the conversion or exchange of any share of Class B Common Stock or Ownership Interests; provided, however, that if a share of Class B Common Stock or Ownership Interests shall be converted or exchanged subsequent to the record date for the payment of a dividend or other distribution on shares of Class B Common Stock or Ownership Interests but prior to the date of such payment, then the registered holder of such share or Ownership Interests at the close of business on such record date shall be entitled to receive the dividend or other distribution payable on such share or Ownership Interests on such payment date notwithstanding the conversion or exchange thereof or the default in payment of the dividend or distribution due on such payment date.
     (viii) The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of issuance upon conversion or exchange of the outstanding shares of Class B Common Stock or Ownership Interests, such number of shares of Class A Common Stock that shall be issuable upon the conversion of all such outstanding shares of Class B Common Stock and the exchange of all such outstanding Ownership Interests; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion or exchange of the outstanding shares of Class B Common Stock or Ownership Interests by delivery of purchased shares of Class A Common Stock which are held in the treasury of the Corporation. The Corporation covenants that if any shares of Class A Common Stock require registration with or approval of any governmental authority under any federal or state law before such shares of Class A Common Stock may be issued upon conversion or exchange, the Corporation shall cause such shares to be duly registered or approved, as the case may be. The Corporation shall use commercially reasonable efforts to list the shares of Class A Common Stock required to be delivered upon conversion or exchange prior to such delivery upon each national securities exchange or inter-dealer quotation system upon which the outstanding Class A Common Stock is listed or traded at the time of such delivery. The Corporation covenants that all shares of Class A Common Stock that shall be issued upon conversion or exchange of the shares of Class B Common Stock or Ownership Interests will, upon issue, be validly issued, fully paid and non-assessable.
     (ix) The issuance of certificates for shares of Class A Common Stock upon conversion or exchange of shares of Class B Common Stock or Ownership Interests shall be made without charge to the holders of such shares or Ownership Interests for any stamp or other similar tax in respect of such issuance; provided, however, that if any such certificate is to be issued in a name other than that of the holder of the share or shares of Class B Common Stock converted or the Ownership Interests exchanged, then the person or persons requesting the issuance thereof shall pay to the Corporation the amount of any tax that may be payable in respect of any transfer involved in such issuance or shall establish to the satisfaction of the Corporation that such tax has been paid or is not payable.

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     (x) Shares of Class B Common Stock that are converted into shares of Class A Common Stock as provided herein shall continue to be authorized shares of Class B Common Stock, and available for reissue by the Corporation; provided, however, that no shares of Class B Common Stock shall be reissued except as expressly permitted by Article IV, Section 3(b) above and Article IV, Section 3(d) below.
          (d) Stock Splits, Stock Dividends and Reclassifications. The Corporation shall not in any manner subdivide (by any stock split, stock dividend, reclassification, recapitalization or otherwise) or combine (by reverse stock split, reclassification, recapitalization or otherwise) the outstanding shares of one class of Common Stock unless the outstanding shares of all classes of Common Stock shall be proportionately subdivided or combined.
     (e) Options, Rights or Warrants.
     (i) The Corporation shall not make any offering of options, rights or warrants to subscribe for shares of Class B Common Stock. If the Corporation makes an offering of options, rights or warrants to subscribe for shares of any class or classes of capital stock, other than Class B Common Stock, to all holders of a class of Common Stock, then the Corporation shall simultaneously make an identical offering to all holders of the other class of Common Stock other than to any class of Common Stock the holders of which, voting as a separate class, determine that such offering need not be made to such class. All such options, rights or warrants offerings shall offer the respective holders of Class A Common Stock and Class B Common Stock the right to subscribe at the same rate per share.
     (ii) Subject to Article IV, Sections 3(c)(v) and 3(e)(i) above, the Corporation shall have the power to create and issue, whether or not in connection with the issue and sale of any shares of stock or other securities of the Corporation, rights or options entitling the holders thereof to purchase from the Corporation any shares of its capital stock of any class or classes at the time authorized (other than Class B Common Stock), such rights or options to have such terms and conditions, and to be evidenced by or in such instrument or instruments, as shall be approved by the Board.
          (f) Mergers, Consolidation, Etc. In the event that the Corporation shall enter into any consolidation, merger, combination or other transaction in which shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then, and in such event, the shares of each class of Common Stock shall be exchanged for or changed into the same amount of stock, securities, cash and/or any other property, as the case may be, into which or for which each share of any other class of Common Stock is exchanged or changed; provided, however, that if shares of Common Stock are exchanged for or changed into shares of capital stock, such shares so exchanged for or changed into may differ to the extent and only to the extent that the Class A Common Stock and the Class B Common Stock differ as provided herein.
          (g) Liquidation Rights. In the event of any dissolution, liquidation or winding-up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation and after making

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provision for the holders of each series of Preferred Stock, if any, the remaining assets and funds of the Corporation, if any, shall be divided among and paid ratably to the holders of the shares of the Class A Common Stock and the Class B Common Stock treated as a single class.
          (h) No Preemptive Rights. Except as provided in Article IV, Section 3(e) above, the holders of shares of Common Stock are not entitled to any preemptive right to subscribe for, purchase or receive any part of any new or additional issue of stock of any class, whether now or hereafter authorized, or of bonds, debentures or other securities convertible into or exchangeable for stock.
ARTICLE V
Directors
          Section 1. Removal of Directors. Any director (other than a Class B Director) may be removed from office for cause at any time by the affirmative vote of the holders of record of outstanding shares representing at least a majority of the voting power of the Common Stock and the Preferred Stock, voting together as a single class. Any Class B Director may be removed from office at any time, with or without cause, by the affirmative vote of the holders of record of outstanding shares of Class B Common Stock representing at least a majority of the voting power of the Class B Common Stock, voting separately as a class.
          Section 2. Vacancies in the Board. Any vacancy on the Board resulting from death, resignation, disqualification, removal or other causes with respect to any director (other than a Class B Director), and any newly created directorships resulting from any increase in the number of directors (other than Class B Directors), shall be filled by the affirmative vote of a majority of the remaining directors (even if less than a quorum of the Board), subject to the approval of the Class B Directors. Subject to Article IV, Section 3(c)(v), any vacancy on the Board resulting from the death, resignation, disqualification, removal or other causes with respect to a Class B Director shall be filled only by the affirmative vote of the remaining Class B Directors then in office or by the sole remaining Class B Director. In the absence of a sole remaining Class B Director, such vacancies shall be filled by a majority vote of the holders of the Class B Common Stock, voting separately as a class. Any director elected in accordance with the preceding sentences shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been duly elected and qualified. A vacancy in the Board shall be deemed to exist in the case of the death, removal or resignation of any director.
ARTICLE VI
Limitation of Directors’ Liability; Indemnification by Corporation; Insurance
          Section 1. Limitation of Directors’ Liability. (a) No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except, to the extent provided by applicable law, for liability (i) for breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of

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law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is hereafter amended to authorize corporate action further limiting or eliminating the personal liability of directors, then the liability of each director of the Corporation shall be limited or eliminated to the full extent permitted by the DGCL as so amended from time to time.
          (b) Neither the amendment nor repeal of this Article VI, Section 1, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article VI, Section 1, shall eliminate or reduce the effect of this Article VI, Section 1, in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VI, Section 1, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
          Section 2. Indemnification by Corporation. (a) Subject to Article VI, Section 2(d) below, the Corporation shall indemnify any person 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 Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s 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 the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
          (b) Subject to Article VI, Section 2(d) below, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including reasonable attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

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          (c) To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Article VI, Sections 2(a) and (b), or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
          (d) Any indemnification under Article VI, Sections 2(a) and (b) (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in Article VI, Sections 2(a) and (b). Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation. Such determination shall be made, with respect to former directors, officers, employees and agents, by any person or persons having the authority to act on the matter on behalf of the Corporation.
          (e) Expenses (including reasonable attorneys’ fees) incurred by an officer, director, employee or agent in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation pursuant to this Article VI. Such expenses (including reasonable attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
          (f) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
          (g) For purposes of this Article VI, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.

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          (h) For purposes of this Article VI, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves service by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VI.
          (i) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
          Section 3. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of Section 145 of the DGCL.
ARTICLE VII
By-laws
          The Board shall have the power to adopt, amend or repeal by-laws of the Corporation in accordance with the terms of the by-laws.
ARTICLE VIII
Reorganization
          Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the DGCL or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the DGCL order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the

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said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
ARTICLE IX
Business Combination Statute
     Section 1. Business Combinations. The Corporation hereby elects not to be governed by Section 203 of the DGCL.
ARTICLE X
Corporate Opportunity and Conflict of Interest Policies
          Section 1. Overview. In recognition that (i) Calamos Family Partners (or one or more of John P. Calamos, Sr., Nick P. Calamos and John P. Calamos, Jr. beneficially) is expected to remain a substantial shareholder of the Corporation, (ii) the CAM Group, Calamos Family Partners and other Calamos Persons may engage in the same areas of corporate opportunities, and (iii) benefits shall be derived by the CAM Group through its continued contractual, corporate and business relations with Calamos Family Partners and other Calamos Persons (including possible services of officers and directors of Calamos Family Partners or any other Calamos Person, as officers and directors of the Corporation), the provisions of this Article X are set forth to regulate and define the conduct of certain affairs of the CAM Group as they may involve a Calamos Person and their officers and directors, and the powers, rights, duties and liabilities of the CAM Group and its officers, directors and stockholders in connection therewith.
          Section 2. Definitions. For purposes of these provisions:
          “Calamos Family Partners” means Calamos Family Partners, Inc.
          “Calamos Person” means (i) Calamos Family Partners, (ii) each of John P. Calamos, Sr., Nick P. Calamos and John P. Calamos, Jr., (iii) any member of the immediate families of John P. Calamos, Sr., Nick P. Calamos and John P. Calamos, Jr. who is at the time an officer or director of the Corporation, (iv) each of the John P. Calamos 1985 Trust dated August 21, 1985 and The John P. Calamos, Jr. NonGST Trust dated November 17, 2004, and (v) any Person in which one or more of the Persons qualifying as a Calamos Person pursuant to clauses (i), (ii), (iii) or (iv) above beneficially own a controlling interest in the outstanding voting securities or comparable interests.
          “CAM Group” means the Corporation, Calamos Holdings LLC and their respective Subsidiaries.
          “control” means, with respect to the relationship between or among two or more Persons, the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise.

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          “Corporate Opportunities” means, with respect to opportunities potentially allocable to the CAM Group, business opportunities that (i) the CAM Group is financially able to undertake, (ii) are, from their nature, in the line or lines of business of a member of the CAM Group and are of practical advantage to a member of the CAM Group, and (iii) are ones in which a member of the CAM Group has an interest or a reasonable expectancy; provided, however, that “Corporate Opportunities” do not include (i) transactions in which the CAM Group or a Calamos Person is permitted to participate pursuant to any agreement between the CAM Group and such Calamos Person that is entered into with the affirmative vote of a majority of the independent directors of the Board or of any committee thereof, even if the independent directors are less than a quorum, and (ii) passive investments.
          “Person” means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
          “Subsidiaries” means, with respect to any Person, any and all corporations, partnerships, limited liability companies, joint ventures, associations and other entities controlled by such Person directly or indirectly through one or more intermediaries.
          Section 3. Corporate Opportunity Policy. (a) If a Calamos Person acquires knowledge of a potential transaction or a matter which is a Corporate Opportunity, such Calamos Person shall have a duty to communicate that Corporate Opportunity to the Corporation, in which case the Corporate Opportunity shall belong to the CAM Group.
          (b) In the event that a director or officer of the CAM Group (other than a Calamos Person) who is also a director or officer of an entity which is at the time a Calamos Person acquires knowledge of a potential transaction or matter which may be a Corporate Opportunity for both a Calamos Person and the CAM Group, such Corporate Opportunity shall belong to the CAM Group, unless the Corporate Opportunity is expressly offered to such individual primarily in his or her capacity as a director or officer of such entity which is at the time a Calamos Person, in which case the Corporate Opportunity shall belong to such Calamos Person to the same extent as if the Corporate Opportunity came directly to such Calamos Person.
          (c) Any director or officer of the CAM Group (other than a Calamos Person) who acts in accordance with the foregoing policies (i) shall be deemed fully to have satisfied his or her fiduciary duties, including the duty of loyalty, to the CAM Group and its stockholders with respect to such Corporate Opportunity and not to have derived an improper benefit therefrom; (ii) shall not be liable to the CAM Group or its stockholders for any breach of fiduciary duty by reason of the fact that a Calamos Person pursues or acquires such Corporate Opportunity or directs such Corporate Opportunity to another Person or does not communicate information regarding such Corporate Opportunity to the CAM Group; and (iii) shall be deemed to have acted in good faith and in a manner he or she reasonably believes to be in the best interests of the CAM Group.

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          (d) Any Corporate Opportunity that belongs to a Calamos Person or to the CAM Group pursuant to the foregoing policy shall not be pursued by the other (or directed by the other to another Person) unless and until such Calamos Person or the CAM Group, as the case may be, determines not to pursue the Corporate Opportunity. In the case of the CAM Group, any determination not to pursue a Corporate Opportunity must be approved by a majority of the independent directors of the Board or of any committee thereof, even if the independent directors are less than a quorum. If the party to whom the Corporate Opportunity belongs does not, however, within a reasonable period of time, begin to pursue, or thereafter continue to pursue, such Corporate Opportunity diligently and in good faith, the other party may pursue such Corporate Opportunity (or direct it to another Person).
          (e) Notwithstanding anything in this Second Amended and Restated Certificate of Incorporation to the contrary, the foregoing provisions of this Article X shall expire on the date that all Calamos Persons cease to own beneficially Common Stock representing, in the aggregate, at least 30% of the total voting power of all classes of outstanding voting stock of the Corporation, voting together as a single class.
          Section 4. Conflict of Interests Policy. No contract, agreement, arrangement or transaction, or any amendment, modification or termination thereof, or any waiver of any right thereunder, entered into, made, effected or given after the date on which this Second Amended and Restated Certificate of Incorporation becomes effective (each, a “Transaction”) between the CAM Group and (i) a Calamos Person, (ii) any entity in which a director of the CAM Group has a financial interest (a “Related Entity”), or (iii) one or more of the directors or officers of the CAM Group or any Related Entity; shall be voidable solely because any of the Persons listed in (i) through (iii) above are parties thereto, if the standard specified below is satisfied. Further, no Transaction shall be voidable solely because any such directors or officers are present at or participate in the meeting of the Board or committee thereof that authorizes the Transaction or because their votes are counted for such purpose, if the standard specified is satisfied. That standard shall be satisfied, and such Calamos Person, the Related Entity, and the directors and officers of the CAM Group or the Related Entity (as applicable) shall be deemed to have acted reasonably and in good faith (to the extent such standard is applicable to such Person’s conduct) and to have fully satisfied any fiduciary duties, including the duty of loyalty, they may have to the CAM Group and its stockholders with respect to such Transaction if any of the following three requirements are met:
     (i) the material facts as to the relationship or interest and as to the Transaction are disclosed or known to the Board or the committee thereof that authorizes the Transaction, and the Board or such committee in good faith approves the Transaction by the affirmative vote of a majority of the independent directors of the Board or of such committee, even if the independent directors are less than a quorum;
     (ii) the material facts as to the relationship or interest and as to the Transaction are disclosed or known to the holders of voting stock of the Corporation entitled to vote thereon, and the Transaction is specifically approved by the vote of the holders of a majority of the voting power of the then outstanding voting stock of the Corporation not owned by such Calamos Person or such Related Entity, voting together as a single class; or

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     (iii) the Transaction is effected pursuant to guidelines that are in good faith approved by a majority of the independent directors of the Board or of the applicable committee thereof or by vote of the holders of a majority of the voting power of the then outstanding voting stock of the Corporation not owned by such Calamos Person or such Related Entity, voting together as a single class.
          Such Transaction authorized, approved or effected, and each of such guidelines so authorized or approved, as described in (i), (ii) or (iii) above, shall be deemed to be entirely fair to the CAM Group and its stockholders, except that, if such authorization or approval is not obtained, or such Transaction is not so effected, no presumption shall arise that such Transaction or guideline is not fair to the CAM Group and its stockholders.
ARTICLE XI
Amendment
          The affirmative vote of the holders of at least a majority of the issued and outstanding Common Stock, voting together as a single class, shall be required to amend or repeal this Second Amended and Restated Certificate of Incorporation; provided, however, that no such amendment shall adversely affect the rights of the holders of Class A Common Stock or Class B Common Stock, respectively, unless the holders of such Class A Common Stock or Class B Common Stock, as the case may be, voting separately as a class, shall by majority vote approve such amendment.

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          IN WITNESS WHEREOF, this Second Amended and Restated Certificate of Incorporation which restates, integrates and amends the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, and which has been duly adopted in accordance with Sections 228, 242 and 245 of the DGCL, has been executed by an authorized officer of the Corporation this            day of February, 2009.
         
  CALAMOS ASSET MANAGEMENT, INC.
 
 
  By:      
    Name:      
    Title:      
 
     
ATTEST:
   
 
   
 
Name:
   
Title:
   

EX-3.2
Exhibit 3.2
SECOND AMENDED AND RESTATED
BY-LAWS
OF
CALAMOS ASSET MANAGEMENT, INC.
ARTICLE I
OFFICES
          SECTION 1.01. Registered Office. The registered office of Calamos Asset Management, Inc. (the “Corporation”) in the State of Delaware shall be at the principal office of Corporation Service Company in the City of Wilmington, County of New Castle, and the registered agent in charge thereof shall be Corporation Service Company.
          SECTION 1.02. Other Offices. The Corporation may also have an office or offices at any other place or places within or without the State of Delaware as the Board of the Corporation (the “Board”) may from time to time determine or the business of the Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
          SECTION 2.01. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors of the Corporation, and for the transaction of such other business as may properly come before such meeting, shall be held at such place, date and time as shall be fixed by the Board and designated in the notice or waiver of notice of such annual meeting.
          SECTION 2.02. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time only by the Chairman of the Board, by a committee that is duly designated by the Board as set forth in Section 4 hereof or by the Board pursuant to a resolution duly adopted by a majority of the then authorized number of directors, to be held at such place, date and time as shall be designated in the notice or waiver of notice thereof. Only business within the purposes described in the notice required by Section 2.03 may be conducted at the special meeting. The ability of the stockholders to call a special meeting of stockholders of the Corporation is specifically denied.
          SECTION 2.03. Notice and Business of Meetings. (a) General. Except as otherwise provided by law, written notice of each meeting of stockholders shall be given either by delivering a notice personally or mailing a notice to each stockholder of record entitled to vote thereat. If mailed, the notice shall be directed to the stockholder in a postage-prepaid envelope at the stockholder’s address as it appears on the stock books of the Corporation unless, prior to the time of mailing, the stockholder shall have filed with the Secretary a written request that notices intended for the stockholder be mailed to some other address, in which case it shall

 


 

be mailed to the address designated in such request. Notice of each meeting of stockholders shall be in such form as is approved by the Board and shall state the purpose or purposes for which the meeting is called, the date and time when and the place where it is to be held, and shall be delivered personally or mailed not more than sixty (60) days and not less than ten (10) days before the day of the meeting. Except as otherwise provided by law, the business which may be transacted at any special meeting of stockholders shall consist of and be limited to the purpose or purposes so stated in such notice. The Secretary or an Assistant Secretary or the transfer agent of the Corporation shall, after giving such notice, make an affidavit stating that notice has been given, which shall be filed with the minutes of such meeting.
          (b) Advance Notice Provisions for Business to be Transacted at Annual Meeting. (i) No business may be transacted at an annual meeting of stockholders, other than business that is either (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (B) otherwise properly brought before the annual meeting by or at the direction of the Board (or any duly authorized committee thereof) or (C) otherwise properly brought before the annual meeting by any stockholder of the Corporation who (1) is a stockholder of record on both (x) the date of the giving of the notice provided for in this Section 2.03 and (y) the record date for the determination of stockholders entitled to vote at such annual meeting and (2) complies with the notice procedures set forth in this Section 2.03(b).
          (ii) In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
     (A) To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the first anniversary of the preceding year’s annual meeting.
     (B) To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (1) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and record address of such stockholder, (3) the class or series and number of shares of capital stock of the Corporation which are beneficially owned or owned of record by such stockholder, (4) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (5) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. As used in these by-laws, “beneficially owned” means all shares which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

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          (iii) No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.03, provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.03 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
          (c) Advance Notice Provisions for Election of Directors. (i) In addition to any other applicable requirements, for a nomination for election of a director to be made by a stockholder of the Corporation, such stockholder must (A) be a stockholder of record on both (1) the date of the giving of the notice provided for in this Section 2.03 and (2) the record date for the determination of stockholders entitled to vote at such annual meeting and (B) have given timely notice thereof in proper written form to the Secretary of the Corporation. If a stockholder is entitled to vote only for a specific class or category of directors at a meeting of the stockholders, such stockholder’s right to nominate one or more persons for election as a director at the meeting shall be limited to such class or category of directors.
          (ii) To be timely in connection with the annual meeting of the stockholders, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the first anniversary of the preceding year’s annual meeting. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any stockholder entitled to vote for the election of such director(s) at such meeting and satisfying the requirements specified in Section 2.03(c)(i) may nominate a person or persons (as the case may be) for election to such position(s) as are specified in the Corporation’s notice of such meeting, but only if the stockholder notice required by Section 2.03(c)(iii) hereof shall be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the tenth (10th) day following the first day on which the date of the special meeting and either the names of all nominees proposed by the Board to be elected at such meeting or the number of directors to be elected shall have been publicly announced.
          (iii) To be in proper written form, a stockholder’s notice to the Secretary must set forth (A) as to each person whom the stockholder proposes to nominate for election as a director (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) the class or series and number of shares of capital stock of the Corporation, if any, which are beneficially owned or owned of record by the person and (4) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (B) as to the stockholder giving notice (1) the name and record address of such stockholder, (2) the class or series and number of shares of capital stock of the Corporation which are beneficially owned or owned of record by such stockholder, (3) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (4) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to nominate the person(s) named in its notice and (5) any other information relating to such stockholder that would be required to be

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disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
          (iv) No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.03(c). If the chairman of an annual meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
          (v) This Section 2.03(c) shall not apply to any nomination of a director in an election in which only the holders of one or more series of preferred stock of the Corporation (“Preferred Stock”) issued pursuant to Article IV of the Second Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) are entitled to vote (unless otherwise provided in the terms of such series of Preferred Stock).
          (d) Adjournment. In no event shall the adjournment of an annual or special meeting of the stockholders, or any announcement thereof, commence a new period for the giving of notice under this Section 2.03.
          SECTION 2.04. Waiver of Notice. Notice of any annual or special meeting of stockholders need not be given to any stockholder who files a written waiver of notice with the Secretary, signed by the person entitled to notice, whether before or after such meeting. Neither the business to be transacted at, nor the purpose of, any meeting of stockholders need be specified in any written waiver of notice thereof. Attendance of a stockholder at a meeting, in person or by proxy, shall constitute a waiver of notice of such meeting, except when such stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the grounds that the notice of such meeting was inadequate or improperly given.
          SECTION 2.05. Adjournments. Whenever a meeting of stockholders, annual or special, is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote thereat. At the adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
          SECTION 2.06. Quorum. Except as otherwise provided by law or the Certificate of Incorporation, the record holders of shares having a majority of the voting power of the shares entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, whether annual or special. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly

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called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, all action taken by the holders of a majority of the vote cast, excluding abstentions, at any meeting at which a quorum is present shall be valid and binding upon the Corporation; provided, however, that directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the Certificate of Incorporation or these By-laws, the record holders of shares having a majority of the voting power of the shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and, except where otherwise provided by the statute or by the Certificate of Incorporation or these By-laws, the affirmative vote of the majority (plurality, in the case of the election of directors) of the votes cast, including abstentions, by the holders of shares of such class or classes or series shall be the act of such class or classes or series.
          SECTION 2.07. Proxies and Voting. Except as otherwise provided in a resolution of the Board adopted pursuant to the Certificate of Incorporation and these By-laws establishing a series of Preferred Stock, at each meeting of stockholders, each holder of shares of the Corporation’s Class A Common Stock, par value $0.01 per share (“Class A Common Stock”), shall be entitled to one (1) vote for each such share, and each holder of the Corporation’s Class B Common Stock, par value $0.01 per share (“Class B Common Stock”, and together with the Class A Common Stock, the “Common Stock”), shall be entitled to the respective number of votes as set forth in the Certificate of Incorporation, in each case determined with reference to the number of shares of Common Stock and Ownership Interests (as such term is defined in the Certificate of Incorporation) in Calamos Holdings LLC, a Delaware limited liability company, standing in such holder’s name on the stock records of the Corporation maintained in accordance with Section 7.02 hereof (i) at the time fixed pursuant to Section 7.07 of these By-laws as the record date for the determination of stockholders entitled to vote at such meeting, or (ii) if no such record date shall have been fixed, then at the close of business on the day next preceding the day on which notice thereof shall be given. At each meeting of stockholders, all matters (except as otherwise provided in these By-laws and except in cases where a larger vote is required by law or by the Certificate of Incorporation or these By-laws) shall be decided by a majority of the votes cast at such meeting by the holders of shares of capital stock present or represented by proxy and entitled to vote thereon, a quorum being present. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Section 2.07 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. All voting, including on the election of directors but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefore by a stockholder entitled to vote or by such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting.

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          SECTION 2.08. Action Without Meeting. For so long as shares of Class B Common Stock are issued and outstanding, any action required to be taken at any annual or special meeting of the stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing (or deemed to be in writing under applicable law), setting forth the action so taken, shall be signed by stockholders (or deemed to be signed by stockholders under applicable law) representing not less than the minimum number of votes that would be necessary to authorize or take such actions at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered and dated as required by law. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. The Secretary shall file such consents with the minutes of the meetings of the stockholders. Immediately following such time, if any, as when there cease to be shares of Class B Common Stock issued and outstanding, (i) no action may be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these By-laws, and (ii) no action may be taken by the stockholders by written consent without a meeting.
          SECTION 2.09. Organization. (a) At every meeting of stockholders, the Chairman of the Board, or, if a Chairman has not been appointed or is absent, the Chief Executive Officer, or, if the Chief Executive Officer is absent, a chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in his or her absence, an Assistant Secretary directed to do so by the Chief Executive Officer, shall act as secretary of the meeting.
          (b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the Corporation and their duly authorized and constituted proxies and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.

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ARTICLE III
BOARD OF DIRECTORS
          SECTION 3.01. Powers. (a) The business and affairs of the Corporation shall be managed by the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these By-laws directed or required to be exercised or done by stockholders. The Board may, subject to the approval procedures of this Sections 3.01 and except as otherwise required by law, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power:
          (i) to declare dividends from time to time in accordance with law;
          (ii) to purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine;
          (iii) to authorize the creation, making and issuance, in such form as it may determine, of written obligations of every kind, negotiable or non-negotiable, secured or unsecured, and to do all things necessary in connection therewith;
          (iv) to remove any officer of the Corporation with or without cause, and from time to time to devolve the powers and duties of any officer upon any other person for the time being;
          (v) to adopt from time to time such stock, option, stock purchase, bonus or other compensation plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine;
          (vi) to adopt from time to time such insurance, retirement and other benefit plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; and
          (vii) to adopt from time to time regulations, not inconsistent with these By-laws, for the management of the Corporation’s business and affairs.
          (b) Without limiting the powers of the Board set forth in Section 3.01(a), the Corporation shall not, and shall not permit any Subsidiary (as defined in Section 3.01(e) below) to, and no officer, employee or agent of the Corporation or any Subsidiary shall, take any of the following actions without the prior approval of the Board:
          (i) any merger, consolidation, dissolution or liquidation of the Corporation or any Subsidiary or any transaction having the same effect;
          (ii) except pursuant to the conversion or exchange rights set forth in the Certificate of Incorporation, the Limited Liability Company Agreement of Calamos Holdings LLC, as amended (the “LLC Agreement”) or similar constitutive documents of any other Subsidiary and issuances pursuant to the Calamos Asset Management, Inc. Incentive

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Compensation Plan, (A) the authorization of any equity security of the Corporation or any Ownership Interests (as defined in the Certificate of Incorporation) or other equity interest in any Subsidiary (including, without limitation, in each case, any security convertible or exchangeable for such an equity security or interest), (B) the issuance, cancellation, alteration, modification, redemption or any change in, of, or to, any equity security of the Corporation (other than any Class B Common Stock) or any Ownership Interests (as defined in the Certificate of Incorporation) or other equity interest in any Subsidiary (including, without limitation, in each case, any security convertible or exchangeable for such an equity security or interest), or (C) the authorization, issuance, cancellation, alteration, modification, redemption or any change in, of, or to, any right, option, put, call or warrant with respect to the equity securities or other equity interest referred to in clause (B);
          (iii) the transfer or other disposition (other than inventory or obsolete assets of the Corporation or any Subsidiary) of, or placing any encumbrance (other than encumbrances arising by operation of law) on, any material asset of the Corporation or any Subsidiary, except Permitted Encumbrances (as defined in the LLC Agreement);
          (iv) except for transactions for the Corporation’s investment portfolio executed in accordance with the Corporation’s investment policy statement; the acquisition of any interest in, or the making of any loan or extension of credit to, another person or entity by the Corporation or any Subsidiary for or in an amount in excess of $10,000,000; any capital expenditure (or series of related capital expenditures) by the Corporation or any Subsidiary in excess of $10,000,000; or any debt, loan or borrowing of the Corporation or any Subsidiary (other than borrowings under revolving credit facilities approved by the Board) exceeding $10,000,000 outstanding in the aggregate at any time, or any revolving credit facility of the Corporation or any Subsidiary permitting aggregate borrowings at any one time outstanding to exceed $10,000,000;
          (v) the adoption and approval of any business plan for the Corporation or any Subsidiary; and
          (vi) the adoption of any incentive or other employee benefit plan by the Corporation or any Subsidiary or any material amendment to any such existing plan.
          (c) Notwithstanding anything to the contrary contained in Articles III and IV hereof, the following actions shall require the approval of the Class B Directors (as defined in the Certificate of Incorporation):
          (i) any merger, consolidation, dissolution or liquidation of the Corporation or any Subsidiary or any transaction having the same effect; and
          (ii) except pursuant to the conversion or exchange rights set forth in the Certificate of Incorporation, the LLC Agreement or similar constitutive documents of any Subsidiary and issuances pursuant to the Calamos Asset Management, Inc. Incentive Compensation Plan, (A) the authorization of any equity security of the Corporation or any Ownership Interests (as defined in the Certificate of Incorporation) or other equity interest in any Subsidiary (including, without limitation, in each case, any security convertible or exchangeable

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for such an equity security or interest), (B) the issuance, cancellation, alteration, modification, redemption or any change in, of, or to, any equity security of the Corporation (other than any Class B Common Stock) or any Ownership Interests (as defined in the Certificate of Incorporation) or other equity interest in any Subsidiary (including, without limitation, in each case, any security convertible or exchangeable for such an equity security or interest), or (C) the authorization, issuance, cancellation, alteration, modification, redemption or any change in, of, or to, any right, option, put, call or warrant with respect to the equity securities or other equity interest referred to in clause (B).
          (d) Notwithstanding anything to the contrary contained in Articles III and IV hereof, the following actions shall require the approval of the Class B Directors (as defined in the Certificate of Incorporation) and a majority of the independent members of the Board:
          (i) any amendment, change or other modification or restatement to the Certificate of Incorporation of the Corporation, the By-laws of the Corporation, the Limited Liability Company Agreement of Calamos Holdings LLC, as amended, or similar constitutive document of any Subsidiary of the Corporation or Calamos Holdings LLC (other than any amendment required to effect a merger, consolidation or any transaction having the same effect approved in accordance with the terms herein);
          (ii) the conduct by the Corporation or any Subsidiary of any business other than the investment advisory or investment management business and any ancillary or related business or the establishment of a new entity to conduct any such business; and
          (iii) the authorization, issuance, cancellation, alteration, modification, redemption or any change in, of, or to, any Class B Common Stock or any right, option, put, call or warrant with respect to any Class B Common Stock.
          (e) For the purposes of this Section 3.01, “Subsidiary” shall mean Calamos Holdings LLC, the Delaware limited liability company in which the Corporation is the sole Manager, or any successor entity thereto, and any other corporation, limited liability company, partnership or other entity in which the Corporation or Calamos Holdings LLC (or any successor entity thereto), directly or indirectly, has a controlling equity interest.
          SECTION 3.02. Nominations. Nominations for the election of directors may be made by the Board or a committee appointed by the Board, or by any stockholder entitled to vote generally in the election of directors who complies with the notice procedures set forth in Section 2.03(c). Directors shall be at least 21 years of age. Directors need not be stockholders. At each meeting of stockholders for the election of directors at which a quorum is present, the persons receiving a plurality of the votes cast shall be elected directors. All nominations by stockholders shall be made pursuant to timely notice in proper written form to the Secretary of the Corporation.
          SECTION 3.03. Number. The Board shall consist of not less than three (3) nor more than nine (9) persons. The Class B Directors (as defined in the Certificate of Incorporation, and in the absence of a sole remaining Class B Director, such determination shall be made by a majority vote of the holders of Class B Common Stock, voting separately as a class) shall have

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the right, but not the obligation, to appoint one additional Class B Director for each newly created directorship (other than a directorship for a Class B Director); provided however that at all times the Board shall consist of a majority of independent directors.
          SECTION 3.04. Vacancies; Newly Created Directorships. Any vacancies on the Board resulting from death, resignation, disqualification, removal or other cause, and any newly created directorships resulting from an increase in the number of directors, shall be filled in the manner provided in the Certificate of Incorporation.
          SECTION 3.05. Resignation. Any director may resign at any time by delivering his written resignation to the Secretary, such resignation to specify whether it will be effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board. If no such specification is made, it shall be deemed effective at the pleasure of the Board.
          SECTION 3.06. Meetings. (a) Annual Meetings. The annual meeting of the Board shall be held immediately before or after the annual meeting of stockholders and may be at the place where such meeting is held. No notice of an annual meeting of the Board shall be necessary and such meeting shall be held for the purpose of electing officers and transacting such other business as may lawfully come before it.
          (b) Regular Meetings. Except as hereinafter otherwise provided, regular meetings of the Board shall be held in the office of the Corporation required to be maintained pursuant to Section 1.02 hereof. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board may also be held at any place within or without the State of Delaware which has been designated by resolution of the Board or the written consent of all directors. Regular meetings of the Board shall be held not less frequently than quarterly.
          (c) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board may be held at any time and place within or without the State of Delaware whenever called by the Chairman of the Board or a majority of the then authorized number of directors.
          (d) Telephone Meetings. Any member of the Board, or of any committee thereof, may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
          (e) Notice of Meetings. Notice of the time and place of all special meetings of the Board shall be orally or in writing, by telephone, facsimile, electronic mail, telegraph or telex, during normal business hours, at least twenty-four (24) hours before the date and time of the meeting, or sent in writing to each director by first class mail, charges prepaid, at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends the meeting for the express purpose of objecting at the beginning of the meetings to the transaction of any business because the meeting is not lawfully called or convened.

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          (f) Waiver of Notice. The transaction of all business at any meeting of the Board, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present shall sign a written waiver of notice. All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting.
          (g) Quorum and Manner of Acting. A majority of the total number of directors then in office shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board, except as otherwise expressly required by law, the Certificate of Incorporation or these By-laws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present.
          (h) Organization. At each meeting of the Board, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
          (i) the Chairman;
          (ii) the Chief Executive Officer;
          (iii) any director chosen by a majority of the directors present.
The Secretary or, in the case of his absence, any person (who shall be an Assistant Secretary, if an Assistant Secretary is present) whom the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof.
          SECTION 3.07. Directors’ Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing or by electronic transmission, setting forth the action so taken, shall be signed by all the members of the Board or such committee and such consent or electronic transmission or transmissions is filed with the minutes of the proceedings of the Board or such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
          SECTION 3.08. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board may determine the compensation of directors. In addition, as determined by the Board, directors may be reimbursed by the Corporation for their expenses, if any, in the performance of their duties as directors. No such compensation or reimbursement shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

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ARTICLE IV
COMMITTEES OF THE BOARD
          SECTION 4.01. Appointment and Powers of Audit Committee. The Board shall establish an Audit Committee of the Board, which shall consist of such number of members as the Board shall determine. The Audit Committee shall oversee: (i) the quality and integrity of the Corporation’s financial statements; (ii) the quality and integrity of the Corporation’s financial reporting processes; (iii) the quality and integrity of the Corporation’s systems of internal controls; (iv) the Corporation’s compliance with legal and regulatory requirements; (v) the independent auditor’s qualifications and independence; and (vi) the performance of the Corporation’s internal audit function and independent auditor. The Audit Committee may determine its manner of acting and fix the time and place of its meetings, unless the Board shall otherwise provide. A majority of the members of the Audit Committee shall constitute a quorum for the transaction of business by the committee and the act of a majority of the members of the committee present at a meeting at which a quorum shall be present shall be the act of the committee.
          SECTION 4.02. Appointment and Powers of Nominating and Corporate Governance Committee. The Board shall establish a Nominating and Corporate Governance Committee for purposes of selecting nominees to be recommended by the Board for election as directors. The Nominating and Corporate Governance Committee shall also recommend to the Board the directors to serve on each of the committees established by the Board. The Nominating and Corporate Governance Committee may determine its manner of acting and fix the time and place of its meetings, unless the Board shall otherwise provide. A majority of the members of the Nominating and Corporate Governance Committee shall constitute a quorum for the transaction of business by the committee and the act of a majority of the members of the committee present at a meeting at which a quorum shall be present shall be the act of the committee.
          SECTION 4.03. Appointment and Powers of Compensation Committee. The Board shall establish a Compensation Committee for purposes of developing and overseeing the implementation of the Corporation’s philosophy with respect to the compensation of the Corporation’s officers and directors. The Compensation Committee may determine its manner of acting and fix the time and place of its meetings, unless the Board shall otherwise provide. A majority of the members of the Compensation Committee shall constitute a quorum for the transaction of business by the committee and the act of a majority of the members of the committee present at a meeting at which a quorum shall be present shall be the act of the committee.
          SECTION 4.04. Other Committees. The Board may, by resolution adopted by the affirmative vote of a majority of the authorized number of directors, designate members of the Board to constitute such other committees of the Board as the Board may determine. Such committees shall in each case consist of such number of directors as the Board may determine, and shall have and may exercise, to the extent permitted by law, such powers as the Board may delegate to them in the respective resolutions appointing them. Each such committee may determine its manner of acting and fix the time and place of its meetings, unless the Board shall

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otherwise provide. A majority of the members of any such committee shall constitute a quorum for the transaction of business by the committee and the act of a majority of the members of such committee present at a meeting at which a quorum shall be present shall be the act of the committee.
          SECTION 4.05. Action by Consent; Participation by Telephone or Similar Equipment. Unless the Board shall otherwise provide, any action required or permitted to be taken by any committee may be taken without a meeting if all members of the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the committee shall be filed with the minutes of the proceedings of the committee. Unless the Board shall otherwise provide, any one or more members of any such committee may participate in any meeting of the committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation by such means shall constitute presence in person at a meeting of the committee.
          SECTION 4.06. Resignations; Removals. Any member of any committee may resign at any time by giving notice to the Corporation; provided, however, that notice to the Board, the Chairman of the Board, the Chief Executive Officer of the Corporation, the chairman of such committee or the Secretary of the Corporation shall be deemed to constitute notice to the Corporation. Such resignation shall take effect upon receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. Any member of any such committee may be removed at any time, either with or without cause, by the affirmative vote of a majority of the authorized number of directors at any meeting of the Board called for that purpose. Any vacancies on any committee of the Board shall be filled in the manner set forth above in respect of the appointment of such committee.
ARTICLE V
OFFICERS
          SECTION 5.01. Officers. The officers of the Corporation shall be the Chairman, the Chief Executive Officer, one or more Vice Presidents, the Secretary and a Treasurer and may include one or more Vice Presidents and one or more Assistant Secretaries and one or more Assistant Treasurers. Any two or more offices may be held by the same person.
          SECTION 5.02. Authority and Duties. All officers shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-laws or, to the extent not so provided, by resolution of the Board.
          SECTION 5.03. Term of Office, Resignation and Removal. (a) The officers of the Corporation shall, on an annual basis, be appointed by the Board, except for the Chairman and the Chief Executive Officer who will be appointed by the Class B Directors (as defined in the Certificate of Incorporation), subject to the approval of a majority of the other members of the Board. The Board may require any officer to give security for the faithful performance of his duties.

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          (b) Any officer may resign at any time by giving written notice to the Board, the Chairman, the Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board, the Chairman, the Chief Executive Officer or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
          (c) All officers and agents shall be subject to removal, with or without cause, at any time by the Board or by the action of the record holders of shares having a majority of the voting power of the shares entitled to vote thereon.
          SECTION 5.04. Vacancies. Any vacancy occurring in any office of the Corporation, for any reason, shall be filled by action of the Board. Unless earlier removed pursuant to Section 5.03 hereof, any officer appointed by the Board to fill any such vacancy shall serve only until such time as the unexpired term of his predecessor expires unless reappointed by the Board.
          SECTION 5.05. The Chairman. The Chairman shall have the power to call special meetings of stockholders, to call special meetings of the Board and, if present, to preside at all meetings of stockholders and all meetings of the Board. The Chairman shall perform all duties incident to the office of Chairman of the Board and all such other duties as may from time to time be assigned to him by the Board or these By-laws.
          SECTION 5.06. The Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation and shall have general and active management and control of the business and affairs of the Corporation, subject to the control of the Board, and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and all such other duties as may from time to time be assigned to him by the Board or these By-laws.
          SECTION 5.07. Vice Presidents. Vice Presidents, if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Chief Executive Officer and perform such other duties as the Board or the Chief Executive Officer shall prescribe, and in the absence or disability of the Chief Executive Officer, shall perform the duties and exercise the powers of the Chief Executive Officer.
          SECTION 5.08. The Secretary. The Secretary shall, to the extent practicable, attend all meetings of the Board and all meetings of stockholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform the same duties for any committee of the Board when so requested by such committee. He shall give or cause to be given notice of all meetings of stockholders and of the Board, shall perform such other duties as may be prescribed by the Board, the Chairman or the Chief Executive Officer and shall act under the supervision of the Chairman. He shall keep in safe custody the seal of the Corporation and affix the same to any instrument that requires that the seal be affixed to it and which shall have been duly authorized for signature in the name of the Corporation and, when so affixed, the seal shall be attested by his signature or by the signature of the Treasurer of the Corporation (the “Treasurer”) or an Assistant Secretary or Assistant Treasurer of the

14


 

Corporation. He shall keep in safe custody the certificate books and stockholder records and such other books and records of the Corporation as the Board, the Chairman or the Chief Executive Officer may direct and shall perform all other duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Board, the Chairman or the Chief Executive Officer.
          SECTION 5.09. Assistant Secretaries. Assistant Secretaries of the Corporation (“Assistant Secretaries”), if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Secretary and perform such other duties as the Board or the Secretary shall prescribe, and, in the absence or disability of the Secretary, shall perform the duties and exercise the powers of the Secretary.
          SECTION 5.10. The Treasurer. The Treasurer shall have the care and custody of all the funds of the Corporation and shall deposit such funds in such banks or other depositories as the Board, or any officer or officers, or any officer and agent jointly, duly authorized by the Board, shall, from time to time, direct or approve. He shall disburse the funds of the Corporation under the direction of the Board and the Chief Executive Officer. He shall keep a full and accurate account of all moneys received and paid on account of the Corporation and shall render a statement of his accounts whenever the Board, the Chairman or the Chief Executive Officer shall so request. He shall perform all other necessary actions and duties in connection with the administration of the financial affairs of the Corporation and shall generally perform all the duties usually appertaining to the office of treasurer of a corporation. When required by the Board, he shall give bonds for the faithful discharge of his duties in such sums and with such sureties as the Board shall approve.
          SECTION 5.11. Assistant Treasurers. Assistant Treasurers of the Corporation (“Assistant Treasurers”), if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Treasurer and perform such other duties as the Board or the Treasurer shall prescribe, and, in the absence or disability of the Treasurer, shall perform the duties and exercise the powers of the Treasurer.
ARTICLE VI
CHECKS, DRAFTS, NOTES, AND PROXIES
          SECTION 6.01. Checks, Drafts and Notes. All checks, drafts and other orders for the payment of money, notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall be determined, from time to time, by resolution of the Board.
          SECTION 6.02. Execution of Proxies. The Chairman or the Chief Executive Officer, or, in the absence or disability of both of them, any Vice President, may authorize, from time to time, the execution and issuance of proxies to vote shares of stock or other securities of other corporations held of record by the Corporation and the execution of consents to action taken or to be taken by any such corporation. All such proxies and consents, unless otherwise authorized by the Board, shall be signed in the name of the Corporation by the Chairman, the Chief Executive Officer or any Vice President.

15


 

ARTICLE VII
SHARES AND TRANSFERS OF SHARES
          SECTION 7.01. Certificates Evidencing Shares. Shares shall be evidenced by certificates in such form or forms as shall be approved by the Board; provided that the Board may provide by resolution or resolutions that some or all of any class or classes or series of stock shall be uncertified shares; provided further that any such resolution shall not apply to any shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, upon request, every holder of uncertified shares shall be entitled to have a certificate signed by or in the name of the Corporation (as provided below) representing the number of shares in registered certificate form. Certificates shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by the Chairman, the Vice Chairman, the Chief Executive Officer or any Vice President and by the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In the event any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to hold such office, transfer agent or registrar or to be employed by the Corporation before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such officer had held such office on the date of issue. Certificates representing shares of stock of the Corporation may bear such legends regarding restrictions on transfer or other matters as any officer or officers of the Corporation may determine to be lawful or appropriate. The Corporation shall not have the power to issue a certificate in bearer form.
          SECTION 7.02. Stock Ledger. A stock ledger in one or more counterparts setting forth a complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares of the Corporation, and the amount of Ownership Interests (as such term is defined in the Certificate of Incorporation) of Calamos Holdings LLC, which are registered in such stockholder’s name, shall be maintained by the Corporation. Except as otherwise expressly required by law, the person in whose name shares stand on the stock ledger of the Corporation shall be deemed the owner and record holder thereof for all purposes.
          SECTION 7.03. Transfers of Shares. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

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          SECTION 7.04. Addresses of Stockholders. Each stockholder shall designate to the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to such stockholder, and, if any stockholder shall fail to so designate such an address, corporate notices may be served upon such stockholder by mail directed to the mailing address, if any, as the same appears in the stock ledger of the Corporation or at the last known mailing address of such stockholder.
          SECTION 7.05. Lost, Destroyed and Mutilated Certificates. Each record holder of shares shall promptly notify the Corporation of any loss, destruction or mutilation of any certificate or certificates evidencing any share or shares of which he is the record holder. The Board may, in its discretion, cause the Corporation to issue a new certificate in place of any certificate theretofore issued by it and alleged to have been mutilated, lost, stolen or destroyed, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft or destruction, and the Board may, in its discretion, require the record holder of the shares evidenced by the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify the Corporation against any claim made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
          SECTION 7.06. Regulations. The Board may make such other rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of certificates evidencing shares, including, without limitation, appointing one or more transfer agents and one or more registrars.
          SECTION 7.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other such action. A determination of the stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE VIII
SEAL
          SECTION 8.01. Seal. The Board may approve and adopt a corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation, the year of its incorporation and the words “Corporate Seal Delaware”.

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ARTICLE IX
FISCAL YEAR
          SECTION 9.01. Fiscal Year. The fiscal year of the Corporation shall end on the thirty-first day of December of each year unless changed by resolution of the Board.
ARTICLE X
INDEMNIFICATION AND INSURANCE
          SECTION 10.01. Indemnification. (a) The Corporation shall indemnify any person 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 Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s 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 the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
          (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

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          (c) To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 10.01(a) and (b) of these By-laws, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
          (d) Any indemnification under Sections 10.01(a) and (b) of these By-laws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in Sections 10.01(a) and (b) of these By-laws. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation.
          (e) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation pursuant to this Article X. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
          (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article X shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
          (g) For purposes of this Article X, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IX with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
          (h) For purposes of this Article X, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the

19


 

Corporation which imposes duties on, or involves service by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article X.
          (i) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article X shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
          SECTION 10.02. Insurance for Indemnification. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of Section 145 of the General Corporation Law.
ARTICLE XI
AMENDMENTS
          SECTION 11.01. Amendments. These By-laws may be altered, amended or repealed (a) at any annual meeting of stockholders, or at any special meeting of holders of shares of stock entitled to vote thereon by a vote of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote thereon or (b) (except as otherwise expressly provided in any by-law adopted by the stockholders) by the Board subject to the provisions in Section 3.01.

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EX-10.1
Exhibit 10.1
     
 
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT

OF
CALAMOS HOLDINGS LLC
Effective as of February ___, 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
    7  
SECTION 2.06. Business Purpose
    7  
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

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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 February ___, 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”).
W I T N E S S E T H:
          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”).
          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 undischarged or unstayed for an aggregate period of ninety (90) days (whether or not consecutive); or

2


 

     (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.
     “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

3


 

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.
     “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.

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     “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;
 
  (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;

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  (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, as filed on February ___, 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.
     “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.

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     “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.
          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

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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 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

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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, 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.

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          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.

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          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.

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          (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

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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.

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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 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.

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          (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

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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

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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 FEBRUARY ___, 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.

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          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.

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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

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     (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

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

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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
          (d) If to CAM, to:

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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, 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.

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          (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.

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          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.

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          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:      
    Name:      
    Title:      
 
     
     
  John P. Calamos, Sr.   
     
 
  CALAMOS ASSET MANAGEMENT, INC.
 
 
  By:      
    Name:      
    Title:      
 

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SCHEDULE I
MEMBERS; OWNERSHIP INTERESTS; CAPITAL ACCOUNTS
                 
                          Member   Ownership Interests   Capital Account
Calamos Asset Management, Inc.
    %     $    
Calamos Family Partners, Inc.
    %     $    
John P. Calamos, Sr.
    %     $    

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