Exhibit 77Q(1)(a)
ASGI AURORA OPPORTUNITIES FUND, LLC
(A Delaware Limited Liability Company)
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of January 1, 2013
TABLE OF CONTENTS Page
ARTICLE I: DEFINITIONS 4
ARTICLE II: ORGANIZATION; ADMISSION OF MEMBERS 7
2.1 FORMATION OF LIMITED LIABILITY COMPANY 7
2.2 NAME 7
2.3 PRINCIPAL AND REGISTERED OFFICE 7
2.4 DURATION 8
2.5 BUSINESS OF THE FUND 8
2.6 BOARD OF MANAGERS 10
2.7 MEMBERS 10
2.8 BOTH MANAGERS AND MEMBERS 11
2.9 LIMITED LIABILITY 11
ARTICLE III: MANAGEMENT 12
3.1 MANAGEMENT AND CONTROL 12
3.2 ACTIONS BY THE BOARD OF MANAGERS 13
3.3 OFFICERS 13
3.4 MEETINGS OF MEMBERS 14
3.5 CUSTODY OF THE FUND'S ASSETS 15
3.6 OTHER ACTIVITIES OF MEMBERS AND MANAGERS 15
3.7 DUTY OF CARE 16
3.8 INDEMNIFICATION 16
3.9 FEES, EXPENSES AND REIMBURSEMENT 18
ARTICLE IV: TERMINATION OF STATUS OF MANAGERS, TRANSFERS AND
REPURCHASES 19
4.1 TERMINATION OF STATUS OF A MANAGER 19
4.2 REMOVAL OF THE MANAGERS 19
4.3 TRANSFER OF SHARES OF MEMBERS 20
4.4 REPURCHASE OF SHARES 21
ARTICLE V: SHARES 23
5.1 SHARES 23
5.2 RIGHTS OF MEMBERS 24
5.3 ISSUANCE OF SHARES 25
5.4 REGISTER OF SHARES 25
5.5 WITHHOLDING 25
5.6 RESERVES 26
ARTICLE VI: DISSOLUTION AND LIQUIDATION 26
6.1 DISSOLUTION 26
6.2 LIQUIDATION OF ASSETS 26
ARTICLE VII: ACCOUNTING, VALUATIONS, AND BOOKS AND RECORDS 27
7.1 ACCOUNTING AND REPORTS 27
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS 28
7.3 VALUATION OF ASSETS 28
7.4 DISTRIBUTIONS TO MEMBERS. 28
7.5 POWER TO MODIFY FOREGOING PROCEDURES 29
7.6 DIVIDEND REINVESTMENT PLAN 29
ARTICLE VIII: MISCELLANEOUS PROVISIONS 30
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT 30
8.2 SPECIAL POWER OF ATTORNEY 31
8.3 NOTICES 32
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS 32
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2 32
8.6 CHOICE OF LAW 32
8.7 NOT FOR BENEFIT OF CREDITORS 33
8.8 THIRD-PARTY BENEFICIARIES 33
8.9 MERGER AND CONSOLIDATION 33
8.10 PRONOUNS 33
8.11 CONFIDENTIALITY 33
8.12 SEVERABILITY 34
8.13 FILING OF RETURNS 35
8.14 USE OF NAMES "ALTERNATIVE STRATEGIES GROUP, INC.,"
"ASGI" AND "ASGI AURORA OPPORTUNITIES FUND, LLC" 35
8.15 ACKNOWLEDGMENT BY THE PARTIES 35
ASGI AURORA OPPORTUNITIES FUND, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of ASGI Aurora Opportunities Fund, LLC (the "Fund") is dated
as of January 1, 2013 by and among the Board of Managers and
the Members, and those Persons hereinafter admitted as
Members.
WHEREAS, the Fund has heretofore been formed as a limited
liability company under the Delaware Limited Liability Company
Act pursuant to an initial Certificate of Formation (the
"Certificate") dated and filed with the Secretary of State of
Delaware on November 19, 2010;
WHEREAS, the Board of Managers has approved this amendment and
restatement of the Limited Liability Company Agreement by
resolutions duly adopted at a meeting of the Managers on [ ], 2012;
NOW, THEREFORE, for and in consideration of the foregoing and
the mutual covenants hereinafter set forth, it is hereby
agreed as follows:
ARTICLE I: DEFINITIONS
For purposes of this Agreement:
"1940 ACT" - The Investment Company Act of 1940, as amended,
and the rules, regulations and orders thereunder, as amended
from time to time, or any successor law.
"ADVISERS ACT" - The Investment Advisers Act of 1940, as
amended, and the rules, regulations, and orders thereunder, as
amended from time to time, or any successor law.
"AFFILIATE" - An affiliated person of a person as such term
is defined in the 1940 Act.
"AGREEMENT" - This Amended and Restated Limited Liability
Company Agreement, as further amended from time to time.
"ASGI" - Alternative Strategies Group, Inc., a North Carolina
corporation, or any successor thereof.
"BOARD" - The Board of Managers established pursuant to
Section 2.6.
"BUSINESS DAY" - A day on which banks are ordinarily open for
normal banking business in New York or such other day or days
as the Board may determine in its sole and absolute
discretion.
"CERTIFICATE" - The Certificate of Formation of the Fund and
any amendments thereto as filed with the office of the
Secretary of State of the State of Delaware.
"CLASS" - A class (within the meaning of Section 18-302 of the
Delaware Act) of Shares created pursuant to Section 3.1(e).
"CODE" - The United States Internal Revenue Code of 1986, as
amended from time to time, or any successor law.
"CONVERSION" - The conversion of the Fund from classification
as a partnership to classification as a corporation for U.S.
federal income tax purposes, electing to be treated as a
regulated investment company under Subchapter M of the Code.
"CONVERSION DATE" - The effective date of the Fund's election
to be classified as a corporation for federal income tax
purposes.
"DELAWARE ACT" - The Delaware Limited Liability Company Act,
as amended from time to time, or any successor law.
"FISCAL PERIOD" - The period commencing on the Conversion
date, and thereafter each period commencing on the day
immediately following the last calendar day of the preceding
Fiscal Period, and ending at the close of business on the
first to occur of the following dates:
1) the last day of each Fiscal Year;
2) the last day of each Taxable Year; or
3) any day on which the Fund values any Shares of any
Member in connection with the issuance or repurchase of
such Shares.
"FISCAL YEAR" - The period commencing on the Conversion date
and ending on the next succeeding March 31, and thereafter
each period commencing on April 1 of each year and ending on
the immediately following March 31 (or on the date of the
final distribution pursuant to Section 6.2 hereof), unless and
until the Board shall elect another fiscal year for the Fund.
"FORM N-2" - The Fund's Registration Statement on Form N-2
filed with the Securities and Exchange Commission, as amended
from time to time.
"FUND" - The limited liability company governed hereby.
"INDEMNITEES" - Each Manager of the Fund and the directors,
officers and employees of the Fund (including his or her
respective executors, heirs, assigns, successors, or other
legal representatives).
"INDEPENDENT MANAGERS" - Those Managers who are not
"interested persons" of the Fund as such term is defined by
the 1940 Act.
"INVESTMENT FUNDS" - Investment funds in which the Fund's
assets are invested.
"INVESTMENT MANAGERS" - The organizations that manage and
direct the investment activities of Investment Funds or are
retained to manage and invest designated portions of the
Fund's assets.
"MANAGER" - An individual designated as a Manager of the Fund
pursuant to the provisions of Section 2.6 of the Agreement and
who serves on the Board of the Fund.
"MEMBER" - Any Person who shall have been admitted to the Fund
as a member (including any Manager in such Person's capacity
as a member of the Fund but excluding any Manager in such
Person's capacity as a Manager of the Fund) until such Person
ceases to be a Member in accordance with the terms hereof and
the Delaware Act; such term includes ASGI (and any Affiliate
of ASGI to the extent such Affiliate makes an investment in
the Fund and shall have been admitted to the Fund as a Member.
"NET ASSETS" - The total value of all assets of the Fund, less
an amount equal to all accrued debts, liabilities and
obligations of the Fund, calculated before giving effect to
any repurchases of Shares. With respect to any Class of
Shares, the total value of the portion of all assets of the
Fund attributable to such Class, less an amount equal to the
portion of all accrued debts, liabilities and obligations of
the Fund attributable to such Class, calculated before giving
effect to any repurchases of Shares of such Class, in
accordance with the Fund's multi-class share plan adopted
pursuant to Rule 18f-3 under the 1940 Act as in effect from
time to time. The Net Assets of the Fund will be computed as
of the close of business on the last calendar day of each
Fiscal Period. In computing Net Assets, the Fund will value
its assets in accordance with Section 7.3. Expenses of the
Fund and its liabilities (including the amount of any
borrowings) are taken into account for purposes of computing
Net Assets.
"NET ASSET VALUE" - With respect to any Share, Net Assets of
the applicable Class of Shares divided by the number of Shares
of such Class outstanding at the applicable date.
"PERSON" - Any individual, limited partnership, corporation,
association, limited liability company or partnership, estate,
trust, governmental authority or other legal entity and his,
her or its heirs, executors, administrators, legal
representatives, successors and assigns where the context
requires.
"PRIOR LIMITED LIABILITY COMPANY AGREEMENT" - The Fund's
Limited Liability Company Agreement dated as of November 9,
2010, as amended in 2011.
"REGULATIONS" - Treasury Regulations promulgated under the
Code.
"SECURITIES" - Securities (including, without limitation,
equities, debt obligations, options, and other "securities" as
that term is defined in Section 2(a)(36) of the 0000 Xxx) and
any contracts for forward or future delivery of any security,
debt obligation, currency, commodity, any type of derivative
instrument and financial instrument and any contract based on
any index or group of securities, debt obligations,
currencies, commodities, any options thereon and any
interests, units or shares issued by an Investment Fund.
"SHARES" - The Shares of undivided limited liability company
interest, each representing an ownership interest in the Fund,
including the rights and obligations of a Member under this
Agreement and the Delaware Act and further including fractions
of Shares. Shares include those Shares issued as a result of
the redenomination of the "Interests" previously issued by the
Company under the Prior Limited Liability Company Agreement,
such redenomination having been effected in connection with
the Conversion. Shares of any Class shall be issued at the
Net Asset Value for such Class as of the date of issuance.
"TAXABLE YEAR" - The period commencing on the Conversion date
and ending on the next succeeding October 31, and thereafter
each period commencing on November 1 of each year and ending
on the immediately following October 31 (or on the date of the
final distribution pursuant to Section 6.2 hereof), unless and
until the Board shall elect another taxable year for the Fund.
"TRANSFER" - The assignment, transfer, sale, encumbrance,
pledge, or other disposition of a Share, including any right
to receive any distributions attributable to such Share, and
"TRANSFEROR" and "TRANSFEREE" mean the respective parties to a
Transfer.
"VALUATION DATE" - The date as of which the Fund values Shares
for purposes of determining the price at which Shares are to
be repurchased by the Fund pursuant to an offer made by the
Fund pursuant to Section 4.4 hereof.
ARTICLE II: ORGANIZATION; ADMISSION OF MEMBERS
2.1 FORMATION OF LIMITED LIABILITY COMPANY
The Fund has been formed as a limited liability company by the
filing of the Certificate. The Board shall cause the
execution and filing in accordance with the Delaware Act of
any amendment to the Certificate and shall cause the execution
and filing with applicable governmental authorities of any
other instruments, documents, and certificates that, in the
opinion of the Fund's legal counsel, may from time to time be
required by the laws of the United States of America, the
State of Delaware, or any other jurisdiction in which the Fund
shall determine to do business, or any political subdivision
or agency thereof, or as such legal counsel may deem necessary
or appropriate to effectuate, implement, and continue the
valid existence and business of the Fund.
2.2 NAME
The Fund's name shall be "ASGI Aurora Opportunities Fund, LLC"
or such other name as the Board may hereafter adopt upon (i)
causing an appropriate amendment to the Certificate to be
filed in accordance with the Delaware Act and (ii) taking such
other actions as may be required by law.
2.3 PRINCIPAL AND REGISTERED OFFICE
The Fund shall have its principal office c/o ASGI, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such
other place as may be designated from time to time by the
Board.
The Fund shall have its registered office in Delaware at
Corporation Service Company and shall have Corporation Service
Company as its registered agent for service of process in
Delaware, unless a different registered office or agent is
designated from time to time by the Board.
2.4 DURATION
The term of the Fund commenced on the filing of the
Certificate with the Secretary of State of Delaware and shall
continue until the Fund is dissolved pursuant to Section 6.1
hereof.
2.5 BUSINESS OF THE FUND
(a) The business of the Fund is, either directly or
indirectly, through one or more other pooled investment
vehicles, to purchase, sell (including short sales), invest,
and trade in Securities, on margin or otherwise, to engage in
any financial or derivative transactions relating thereto or
otherwise, and to invest in one or more other Investment Funds
as a fund of funds. The Fund may execute, deliver, and perform
all contracts, agreements, subscription documents, and other
undertakings and engage in all activities and transactions as
may in the opinion of the Board be necessary or advisable to
carry out its objective or business.
(b) The Fund shall operate as a closed-end, non-
diversified, management investment company in accordance with
the 1940 Act and subject to any fundamental policies and
investment restrictions as may be adopted by the Board and the
Members, to the extent required by the 1940 Act. The Fund may
register its Shares under the Securities Act of 1933, as
amended, but need not so register Shares.
(c) In furtherance of the Fund's business, the Board shall
have the authority to take the following actions, and to
delegate such portion or all of such authority to such
officers of the Fund as the Board may elect:
(1) To engage in the Conversion.
(2) To acquire or buy, and invest the Fund's property
in, own, hold for investment or otherwise, and to sell or
otherwise dispose of, all types and kinds of securities
and investments of any kind including, but not limited
to, interests, shares or units of Investment Funds,
stocks, profit-sharing interests or participations and
all other contracts for or evidences of equity interests,
bonds, debentures, warrants and rights to purchase
securities, and interests in loans, certificates of
beneficial interest, bills, notes and all other contracts
for or evidences of indebtedness, money market
instruments including bank certificates of deposit,
finance paper, commercial paper, bankers' acceptances and
other obligations, and all other negotiable and non-
negotiable securities and instruments, however named or
described, issued by corporations, trusts, associations
or any other Persons, domestic or foreign, or issued or
guaranteed by the United States of America or any agency
or instrumentality thereof, by the government of any
foreign country, by any State, territory or possession of
the United States, by any political subdivision or agency
or instrumentality of any state or foreign country, or by
any other government or other governmental or quasi-
governmental agency or instrumentality, domestic or
foreign; to acquire and dispose of interests in domestic
or foreign loans made by banks and other financial
institutions; to deposit any assets of the Fund in any
bank, trust company or banking institution or retain any
such assets in domestic or foreign cash or currency; to
purchase and sell gold and silver bullion, precious or
strategic metals, and coins and currency of all
countries; to engage in "when issued" and delayed
delivery transactions; to enter into repurchase
agreements, reverse repurchase agreements and firm
commitment agreements; to employ all types and kinds of
hedging techniques and investment management strategies;
and to change the investments of the Fund.
(3) To acquire (by purchase, subscription or
otherwise), to hold, to trade in and deal in, to acquire
any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any of the
Fund's property or any of the foregoing securities,
instruments or investments; to purchase and sell options
on securities, currency, precious metals and other
commodities, indices, futures contracts and other
financial instruments and assets and enter into closing
and other transactions in connection therewith; to enter
into all types of commodities contracts, including,
without limitation, the purchase and sale of futures
contracts on securities, currency, precious metals and
other commodities, indices and other financial
instruments and assets; to enter into forward foreign
currency exchange contracts and other foreign exchange
and currency transactions of all types and kinds; to
enter into interest rate, currency and other swap
transactions; and to engage in all types and kinds of
hedging and risk management transactions.
(4) To exercise all rights, powers and privileges of
ownership or interest in all securities and other assets
included in the Fund property, including, without
limitation, the right to vote thereon and otherwise act
with respect thereto; and to do all acts and things for
the preservation, protection, improvement and enhancement
in value of all such securities and assets.
(5) To acquire (by purchase, lease or otherwise) and
to hold, use, maintain, lease, develop and dispose of (by
sale or otherwise) any type or kind of property, real or
personal, including domestic or foreign currency, and any
right or interest therein.
(6) To borrow money and in this connection issue
notes, commercial paper or other evidence of
indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security all or any
part of the Fund property; to endorse, guarantee, or
undertake the performance of any obligation or engagement
of any other Person; to lend all or any part of the
Fund's property to other Persons; and to issue general
unsecured or other obligations of the Fund, and enter
into indentures or agreements relating thereto.
(7) To aid, support or assist by further investment or
other action any Person, any obligation of or interest
which is included in the Fund's property or in the
affairs of which the Fund has any direct or indirect
interest; to do all acts and things designed to protect,
preserve, improve or enhance the value of such obligation
or interest; and to guarantee or become surety on any or
all of the contracts, securities and other obligations of
any such Person.
(8) To join other security holders in acting through a
committee, depositary, voting trustee or otherwise, and
in that connection to deposit any security with, or
transfer any security to, any such committee, depositary
or trustee, and to delegate to them such power and
authority with relation to any security (whether or not
so deposited or transferred) as the Board shall deem
proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee,
depositary or trustee as the Board shall deem proper.
(9) To carry on any other business in connection with
or incidental to any of the foregoing powers referred to
in this Agreement, to do everything necessary,
appropriate or desirable for the accomplishment of any
purpose or the attainment of any object or the
furtherance of any power referred to in this Agreement,
either alone or in association with others, and to do
every other act or thing incidental or appurtenant to or
arising out of or connected with such business or
purposes, objects or powers.
2.6 BOARD OF MANAGERS
(a) The Board may, subject to the provisions of this
Section 2.6 with respect to the number of and vacancies in the
position of Manager and the provisions of Section 3.3 hereof
with respect to the election of Managers to the Board by
Members, designate any Person who shall agree to be bound by
all of the terms of this Agreement as a Manager. The names
and mailing addresses of the Managers shall be set forth in
the books and records of the Fund. The number of Managers
shall be fixed from time to time by the Board.
(b) Each Manager shall serve on the Board for the duration
of the term of the Fund, unless his or her status as a Manager
shall be sooner terminated pursuant to Section 4.1 or Section
4.2 hereof. In the event of any vacancy in the position of
Manager, the remaining Managers may appoint an individual to
serve in such capacity, so long as immediately after such
appointment at least two-thirds (2/3) of the Managers then
serving would have been elected by the Members. The Board may
call a meeting of Members to fill any vacancy in the position
of Manager, and shall do so within 60 days after any date on
which Managers who were elected by the Members cease to
constitute a majority of the Managers then serving on the
Board.
(c) In the event that no Manager remains to continue the
business of the Fund, ASGI shall promptly call a meeting of
the Members, to be held within 60 days after the date on which
the last Manager ceased to act in that capacity, for the
purpose of determining whether to continue the business of the
Fund and, if the business shall be continued, of electing the
required number of Managers to the Board. If the Members shall
determine at such meeting not to continue the business of the
Fund or if the required number of Managers is not elected
within 60 days after the date on which the last Manager ceased
to act in that capacity, then the Fund shall be dissolved
pursuant to Section 6.1 hereof and the assets of the Fund
shall be liquidated and distributed pursuant to Section 6.2
hereof.
2.7 MEMBERS
The Fund may offer Shares for purchase by investors (including
through exchange) in such manner and at such times as may be
determined by the Board. Each subscription for Shares is
subject to the receipt by the Fund or its custodian of cleared
funds on or before the acceptance date for such subscription
in the full amount of such subscription or such other
consideration as the Board may consider appropriate or on such
other terms as may be set forth in the Fund's registration
statement on Form N-2. Subject to the foregoing, a Person may
be admitted to the Fund as a Member upon approval of the
Board, subject to the condition that such Person shall execute
and deliver a subscription agreement, application,
certification or other document specified by the Board
pursuant to which such Member agrees to be bound by all the
terms and provisions of this Agreement. The Board may, in its
sole and absolute discretion, reject any subscription for
Shares. The Board may, in its sole and absolute discretion,
suspend the offering of the Shares at any time. The admission
of any Person as a Member shall be effective upon the revision
of the books and records of the Fund to reflect the name and
the purchase price paid by such Member for such Member's
Shares.
2.8 BOTH MANAGERS AND MEMBERS
A Member may also be a Manager for purposes of the Delaware
Act, in which event such Member's rights and obligations in
each capacity shall be determined separately in accordance
with the terms and provisions of this Agreement or as provided
in the Delaware Act.
2.9 LIMITED LIABILITY
Except as provided under the Delaware Act or the 1940 Act, a
Member shall not be liable for the Fund's debts, obligations,
and liabilities in any amount in excess of such Member's
investment in the Fund. Except as provided under the Delaware
Act or the 1940 Act, a Manager and any Officer shall not be
liable for the Fund's debts, obligations or liabilities, and
any such officer or agent shall be deemed to be a Manager
within the meaning of Sections 18-101(10) and 18-303(a) of the
Delaware Act and of this Section 2.9.
ARTICLE III: MANAGEMENT
3.1 MANAGEMENT AND CONTROL
(a) Management and control of the business of the Fund
shall be vested in the Board, which shall have the right,
power, and authority, on behalf of the Fund and in its name,
to exercise all rights, powers, and authority of managers
under the Delaware Act and to do all things necessary and
proper to carry out the objective and business of the Fund and
their duties hereunder. No Manager shall have the authority
individually to act on behalf of or to bind the Fund except
within the scope of such Manager's authority as delegated by
the Board. The parties hereto intend that, except to the
extent otherwise expressly provided herein, (i) each Manager
shall be vested with the same powers, authority, and
responsibilities on behalf of the Fund as are customarily
vested in each director of a Delaware stock corporation
organized under the Delaware General Corporation Law, (ii)
each Manager shall be vested with the same powers, authority
and responsibilities on behalf of the Fund as are customarily
vested in each director of a closed-end management investment
company registered under the 1940 Act that is organized as a
Delaware stock corporation, and (iii) each Independent Manager
shall be vested with the same powers, authority and
responsibilities on behalf of the Fund as are customarily
vested in each director of a closed-end management investment
company registered under the 1940 Act that is organized as a
Delaware stock corporation who is not an "interested person"
of such company, as such term is defined by the 1940 Act.
During any period in which the Fund shall have no Managers,
ASGI or its assignee shall have the authority to manage the
business and affairs of the Fund and to bind it.
(b) Subject to the last sentence of Section 3.1(a),
Members, in their capacity as Members, shall have no right to
participate in and shall take no part in the management or
control of the Fund's business and shall have no right, power
or authority to act for or bind the Fund. Members shall have
the right to vote on any matters only as provided in this
Agreement or on any matters that require the approval of the
holders of voting securities under the 1940 Act or as
otherwise required in the Delaware Act.
(c) The Board may create one or more committees consisting
of one or more Board members, and it may delegate to any other
Person any rights, power and authority vested by this
Agreement in the Board to the extent permissible under
applicable law, and may appoint Persons to serve as officers
of the Fund, with such titles and authority as may be
determined by the Board consistent with applicable law and
with this Agreement.
(d) The Board shall have full power and authority to adopt
By-Laws providing for the conduct of the business of the Fund
and containing such other provisions as they deem necessary,
appropriate or desirable, subject to the voting powers of one
or more Classes created pursuant to this Section 3.1, to amend
and repeal such By-Laws; provided, however, that, to the
extent the By-Laws are inconsistent with the terms or
provisions of this Agreement, the terms and provisions of this
Agreement shall control. Unless the By-Laws specifically
require that Members authorize or approve the amendment or
repeal of a particular provision of the By-Laws or otherwise
required by the 1940 Act, any provision of the By-Laws may be
amended or repealed by the Board without Member authorization
or approval.
(e) The Board shall have the full power and authority,
without Member approval, subject to applicable law, to
authorize one or more Classes of Shares; Shares of each such
Class having such preferences, voting powers and special or
relative rights or privileges (including conversion rights, if
any) as the Board may determine and as shall be set forth in a
resolution adopted in accordance with this Agreement and, if
applicable, the By-Laws. The Board may, without Member
approval, amend this Agreement to provide for the terms of
such Class or Classes or provide for the terms of such Class
or Classes in a written plan adopted by the Board pursuant to
Rule 18f-3 under the 1940 Act.
3.2 ACTIONS BY THE BOARD OF MANAGERS
(a) Except as otherwise required by the 1940 Act and unless
provided otherwise in this Agreement, the Board shall act
only: (i) by the affirmative vote of a majority of the
Managers (including the vote of a majority of the Independent
Managers if required by the 0000 Xxx) present at a meeting
duly called at which a quorum of the Managers shall be present
(in person or, if in person attendance is not required by the
1940 Act, by telephone or other electronic means by which all
persons entitled to vote at the meeting may hear one another)
or (ii) by written consent of a majority of the Managers
without a meeting, if permissible under the 1940 Act.
(b) The Board may designate from time to time a Principal
Manager or chair who shall preside at all meetings of the
Board. Meetings of the Board may be called by the Principal
Manager or by any two Managers, and may be held on such date
and at such time and place as the Board shall determine. Each
Manager shall be entitled to receive written notice of the
date, time and place of such meeting within a reasonable time
in advance of the meeting. Except as otherwise required by the
1940 Act, notice need not be given to any Manager who shall
attend a meeting without objecting to the lack of notice or
who shall execute a written waiver of notice with respect to
the meeting. Managers may attend and participate in any
meeting by telephone or other electronic means except where in
person attendance at a meeting is required by the 1940 Act. A
majority of the Managers shall constitute a quorum at any
meeting.
3.3 OFFICERS
(a) The Board of Managers may elect one or more Officers.
The Board of Managers may also delegate to an Officer the
authority to appoint, remove or fix the duties, compensation
or terms of office of, one or more other Officers as the Board
of Managers shall at any time and from time to time deem to be
advisable. A person holding more than one office may not act
in more than one capacity to execute, acknowledge or verify on
behalf of the Fund any instrument required by law to be
executed, acknowledged and verified by more than one Officer.
No Officer need also be a Director.
(b) Each Officer shall hold office until his successor is
elected or appointed or until his earlier displacement from
office by resignation, removal or otherwise; provided, that if
the term of office of any Officer shall have been fixed by the
Board of Managers, or by an Officer acting under authority
delegated by the Board of Managers, such Officer shall cease
to hold such office no later than the date of expiration of
such term, regardless of whether any other person shall have
been elected or appointed to succeed him. Any Officer may
resign at any time by written notice to the Fund. Any Officer
may be removed at any time by the Board of Managers or by an
Officer acting under authority delegated by the Board of
Managers if in its or his judgment the best interest of the
Fund would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an Officer
shall not of itself create contract rights between the Fund
and such Officer.
(c) If the office of any Officer becomes vacant for any
reason, the vacancy may be filled by the Board of Managers or
by another Officer acting under authority delegated by the
Board of Managers. Each Officer elected or appointed to fill
a vacancy shall hold office for the balance of the term for
which his predecessor was elected or appointed.
(d) All Officers as between themselves and the Fund shall
have such powers, perform such duties and be subject to such
restrictions, if any, in the management of the Fund as may be
provided in this Agreement or, to the extent not so provided,
as may be prescribed by the Board of Managers or by the
Officer acting under authority delegated by the Board of
Managers.
3.4 MEETINGS OF MEMBERS
(a) Actions requiring the vote of the Members may be taken
at any duly constituted meeting of the Members at which a
quorum is present. Meetings of the Members may be called by
the Board (or by ASGI in accordance with Section 2.6(c)) or by
Members holding 25% or more of the issued and outstanding
Shares, and may be held at such time, date and place as the
Board (or ASGI, if applicable under Section 2.6(c)) shall
determine. The Board (or ASGI in accordance with Section
2.6(c)) shall arrange to provide written notice of the
meeting, stating the date, time, and place of the meeting and
the record date therefor, to each Member entitled to vote at
the meeting at least 10 days prior thereto. Failure to
receive notice of a meeting on the part of any Member shall
not affect the validity of any act or proceeding of the
meeting, so long as a quorum shall be present at the meeting,
except as otherwise required by applicable law. Only matters
set forth in the notice of a meeting may be voted on by the
Members at a meeting. The presence in person or by proxy of
Members holding 40% or more of all issued and outstanding
Shares as of the record date shall constitute a quorum at any
meeting. In the absence of a quorum, a meeting of the Members
may be adjourned by the Board, by ASGI (in connection with a
meeting under Section 2.6(c)), or by action of the Members
holding a majority of the Shares present in person or by proxy
without additional notice to the Members. Except as otherwise
required by any provision of this Agreement or of the 1940
Act, (i) those candidates receiving a plurality of the votes
cast at any meeting of Members shall be elected as Managers
and (ii) all other actions of the Members taken at a meeting
shall require the affirmative vote of Members holding a
majority of the total number of votes eligible to be cast by
those Members who are present in person or by proxy at such
meeting. In the event the Fund invests in another registered
investment company pursuant to Section 12(d)(1)(F) of the 1940
Act, and such other registered investment company holds a
meeting (other than to vote on the termination of such
registered investment company's business, which may be
determined by the Board), the Fund shall either seek
instructions from its Members with regard to the voting of all
proxies with respect to such Security and to vote such proxies
only in accordance with such instructions, or to vote the
shares held by it in the same proportion as the vote of all
other holders of such Security.
(b) Each Member shall be entitled to cast at any meeting of
Members a number of votes equal to the number of Shares of
such Member as of the record date for such meeting. The Board
shall establish a record date not less than 10 days nor more
than 90 days prior to the date of any meeting of Members as
the record date for determining eligibility to vote at such
meeting and the number of votes that each Member will be
entitled to cast at the meeting, and shall maintain for each
such record date a list setting forth the name of each Member
and the number of votes that each Member will be entitled to
cast at the meeting.
(c) A Member may vote at any meeting of Members by a proxy,
provided that such proxy is authorized to act by (i) a written
instrument properly executed by the Member and filed with the
Fund before or at the time of the meeting or (ii) such
electronic, telephonic, computerized or other alternative
means as may be approved by a resolution adopted by the Board.
A proxy may be suspended or revoked, as the case may be, by
the Member executing the proxy by a later writing delivered to
the Fund at any time prior to exercise of the proxy or if the
Member executing the proxy shall be present at the meeting and
decide to vote in person. Any action of the Members that is
permitted to be taken at a meeting of the Members may be taken
without a meeting if consents in writing, setting forth the
action taken, are signed by Members having not less than the
minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all Shares entitled
to vote thereon were present and voted. The Board may
establish a record date for such vote not less than 2 days nor
more than 90 days prior to the date such request for consent
is first mailed as the record date for determining eligibility
to consent and the number of votes that each Member will be
entitled to give its consent with respect to, and shall
maintain for each record date a list setting forth the name of
each Member and the number of votes that each Member will be
entitled to give its consent with respect to.
3.5 CUSTODY OF THE FUND'S ASSETS
The physical possession of all funds, Securities, or other
properties of the Fund shall at all times, be held, controlled
and administered by one or more custodians retained by the
Fund in accordance with the requirements of the 1940 Act and
the rules thereunder.
3.6 OTHER ACTIVITIES OF MEMBERS AND MANAGERS
(a) The Managers and Officers shall not be required to
devote all of their time to the affairs of the Fund, but shall
devote such time as the Managers or Officers may reasonably
believe to be required to perform their obligations under this
Agreement.
(b) Any Member, Officer or Manager, and any Affiliate of
any Member, Officer or Manager, may engage in or possess an
interest in other business ventures or commercial dealings of
every kind and description, independently or with others,
including, but not limited to, acquiring and disposing of
Securities, providing of investment advisory or brokerage
services, serving as directors, officers, employees, advisors,
or agents of other companies, partners of any partnership,
managers of any limited liability company, or trustees of any
trust, or entering into any other commercial arrangements. No
Member, Officer or Manager shall have any rights in or to any
such activities of any other Member, Officer or Manager, or in
or to any profits derived therefrom.
3.7 DUTY OF CARE
(a) No Manager shall be liable to the Fund or to any of its
Members for any loss or damage occasioned by any act or
omission in the performance of a Manager's services pursuant
to any agreement, including this Agreement, between a Manager
and the Fund for the provision of services to the Fund unless
it shall be determined by final judicial decision on the
merits from which there is no further right to appeal that
such loss is due to an act or omission of the Manager
constituting willful misfeasance, bad faith, gross negligence,
or reckless disregard of the duties involved in the
performance of his services to the Fund.
(b) Members that are not in breach of any obligation
hereunder or under their subscription agreement, application
or certification or under any other document pursuant to which
Members agree to be bound by all the terms and provisions of
this Agreement shall be liable to the Fund, any other Member,
or third parties only as provided under the Delaware Act.
3.8 INDEMNIFICATION
(a) To the fullest extent permitted by law, the Fund shall,
subject to Section 3.8(b) hereof, indemnify each Indemnitee
against all losses, claims, damages, liabilities, costs, and
expenses, including, but not limited to, amounts paid in
satisfaction of judgments, in compromise, or as fines or
penalties, and reasonable counsel fees, incurred in connection
with the defense or disposition of any action, suit,
investigation, or other proceeding, whether civil or criminal,
before any judicial, arbitral, administrative, or legislative
body, in which such Indemnitee may be or may have been
involved as a party or otherwise, or with which such
Indemnitee may be or may have been threatened, while in office
or thereafter, by reason of being or having been a Manager of
the Fund or the past or present performance of services to the
Fund by such Indemnitee, except to the extent such loss,
claim, damage, liability, cost, or expense shall have been
finally determined in a decision on the merits in any such
action, suit, investigation, or other proceeding to have been
incurred or suffered by such Indemnitee by reason of willful
misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such
Indemnitee's offices. The rights of indemnification provided
under this Section 3.8 shall not be construed so as to provide
for indemnification of a Manager for any liability (including
liability under federal securities laws that, under certain
circumstances, impose liability even on Persons that act in
good faith) to the extent (but only to the extent) that such
indemnification would be in violation of applicable law, but
shall be construed so as to effectuate the applicable
provisions of this Section 3.8 to the fullest extent permitted
by law.
(b) Expenses so incurred by such Indemnitees, including,
but not limited to, reasonable counsel fees and accounting and
auditing expenses (but excluding amounts paid in satisfaction
of judgments, in compromise, or as fines or penalties), shall
be paid from time to time by the Fund in advance of the final
disposition of any such action, suit, investigation, or
proceeding upon receipt of an undertaking by or on behalf of
such Indemnitees to repay to the Fund amounts so paid if it
shall ultimately be determined that indemnification of such
expenses is not authorized under Section 3.8(a) hereof;
provided, however, that (i) such Indemnitees shall provide
security for such undertaking, (ii) the Fund shall be insured
by or on behalf of such Indemnitees against losses arising by
reason of such Indemnitees' failure to fulfill such
undertaking, or (iii) a majority of the Managers (excluding
any Manager who is either seeking advancement of expenses
hereunder or is or has been a party to any other action, suit,
investigation, or proceeding involving claims similar to those
involved in the action, suit, investigation, or proceeding
giving rise to a claim for advancement of expenses hereunder)
or independent legal counsel in a written opinion shall
determine based on a review of readily available facts (as
opposed to a full trial-type inquiry) that there is reason to
believe such Indemnitees ultimately will be entitled to
indemnification.
(c) As to the disposition of any action, suit,
investigation, or proceeding (whether by a compromise payment,
pursuant to a consent decree or otherwise) without an
adjudication or a decision on the merits by a court, or by any
other body before which the proceeding shall have been
brought, that an Indemnitee is liable to the Fund or its
Members by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in
the conduct of such Indemnitee's offices, indemnification
shall be provided pursuant to Section 3.8(a) hereof if (i)
approved as in the best interests of the Fund by a majority of
the Managers (excluding any Manager who is either seeking
indemnification hereunder or is or has been a party to any
other action, suit, investigation, or proceeding involving
claims similar to those involved in the action, suit,
investigation, or proceeding giving rise to a claim for
indemnification hereunder) upon a determination based upon a
review of readily available facts (as opposed to a full trial-
type inquiry) that such Indemnitee acted in good faith and in
the reasonable belief that such actions were in the best
interests of the Fund and that such Indemnitee is not liable
to the Fund or its Members by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the
duties involved in the conduct of such Indemnitee's offices,
or (ii) the Board secures a written opinion of independent
legal counsel based upon a review of readily available facts
(as opposed to a full trial-type inquiry) to the effect that
such indemnification would not protect such Indemnitee against
any liability to the Fund or its Members to which such
Indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such
Indemnitee's offices.
(d) Any indemnification or advancement of expenses made
pursuant to this Section 3.8 shall not prevent the recovery
from any Indemnitee of any such amount if such Indemnitee
subsequently shall be determined in a decision on the merits
in any action, suit, investigation or proceeding involving the
liability or expense that gave rise to such indemnification or
advancement of expenses to be liable to the Fund or its
Members by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in
the conduct of such Indemnitee's offices. In (i) any suit
brought by a Manager (or other Person entitled to
indemnification hereunder) to enforce a right to
indemnification under this Section 3.8, it shall be a defense
that, and (ii) any suit in the name of the Fund to recover any
indemnification or advancement of expenses made pursuant to
this Section 3.8, the Fund shall be entitled to recover such
expenses upon a final adjudication that, the Manager or other
Person claiming a right to indemnification under this Section
3.8 has not met the applicable standard of conduct set forth
in this Section 3.8. In any such suit brought to enforce a
right to indemnification or to recover any indemnification or
advancement of expenses made pursuant to this Section 3.8, the
burden of proving that the Manager or other Person claiming a
right to indemnification is not entitled to be indemnified, or
to any indemnification or advancement of expenses, under this
Section 3.8 shall be on the Fund (or any Member acting
derivatively or otherwise on behalf of the Fund or its
Members).
(e) The Indemnitees may not satisfy any right of
indemnification or advancement of expenses granted in this
Section 3.8 or to which such Indemnitees may otherwise be
entitled except out of the assets of the Fund, and no Member
shall be personally liable with respect to any such claim for
indemnification or advancement of expenses.
(f) The rights of indemnification provided hereunder shall
not be exclusive of or affect any other rights to which any
Person may be entitled by contract or otherwise under law.
Nothing contained in this Section 3.8 shall affect the power
of the Fund to purchase and maintain liability insurance on
behalf of any Manager or other Person.
3.9 FEES, EXPENSES AND REIMBURSEMENT
(a) The Board may cause the Fund to compensate each Manager
who is not an "interested person" of the Fund (as defined in
the 1940 Act), and such Manager may be reimbursed by the Fund
for reasonable travel and out-of-pocket expenses incurred by
him in performing his duties under this Agreement.
(b) The Fund ordinarily will bear all expenses incurred in
its business and operations. Costs and expenses borne by the
Fund include, but are not limited to, the following:
(1) the investment advisory fee paid to and certain
out-of-pocket expenses incurred by the Fund's investment
adviser;
(2) all costs and expenses directly related to
investment transactions and positions for the Fund's
account, including, but not limited to, advisory fees,
performance allocations, brokerage commissions, placement
fees, issue and transfer taxes, research fees (unless
otherwise agreed) and fees associated with certain
computer research tools exclusively utilized by or for
the Fund, interest and commitment fees on loans and debit
balances, borrowing charges on securities sold short,
dividends on securities sold but not yet purchased,
custodial fees, margin fees, transfer taxes and premiums,
taxes withheld on foreign dividends, and indirect
expenses from investments in Investment Funds;
(3) all costs and expenses associated with
organizational matters, the operation and registration of
the Fund, offering costs and the costs of compliance with
applicable federal and state laws, including any
regulatory filings;
(4) attorneys' fees and disbursements associated with
updating the Fund's registration statement, the private
placement memorandum and other offering related documents
(the "Offering Materials"); the costs of printing the
Offering Materials and, to the extent permitted under a
plan of distribution adopted pursuant to Rule 12b-1 under
the 1940 Act, the costs of distributing such materials to
prospective investors; and attorneys' fees and
disbursements associated with the preparation and review
thereof;
(5) the costs and expenses of holding meetings of the
Board and any meetings of Members, including costs
associated with the preparation and dissemination of
proxy materials;
(6) the fees and disbursements of the Fund's counsel,
legal counsel to the Independent Managers, if any,
auditing and accounting expenses and fees and
disbursements for independent accountants for the Fund,
and other consultants and professionals engaged on behalf
of the Fund, and any extraordinary expenses;
(7) all costs and expenses associated with the Fund's
repurchase offers;
(8) all fees paid to the Independent Managers as
compensation for serving in such capacity, including fees
and travel related expenses of the Independent Managers;
(9) the fees payable to custodians and other Persons
providing administrative services to the Fund and out of
pocket expenses they incur on the Fund's behalf;
(10) the costs of a fidelity bond and any liability
insurance obtained on behalf of the Fund, the Board or
Indemnitees;
(11) all costs and expenses of preparing, setting in
type, printing, filing and distributing reports, tax
information and other communications to Members;
(12) all expenses associated with computing the Fund's
Net Assets, including any equipment or services obtained
for these purposes;
(13) all taxes, membership dues, interest on
borrowings, nonrecurring and extraordinary expenses; and
(14) such other types of expenses as may be approved
from time to time by the Board.
(c) Subject to procuring any required regulatory approvals,
from time to time the Fund may, alone or in conjunction with
other registered or unregistered investment funds or other
accounts for which ASGI, or any Affiliate of ASGI, acts as
general partner, managing member, manager or investment
adviser (or the equivalent), purchase insurance in such
amounts, from such insurers and on such terms as the Board
shall determine.
ARTICLE IV: TERMINATION OF STATUS OF MANAGERS,
TRANSFERS AND REPURCHASES
4.1 TERMINATION OF STATUS OF A MANAGER
The status of a Manager shall terminate if the Manager (a)
shall die; (b) shall be adjudicated incompetent; (c) shall
voluntarily resign as a Manager; (d) shall be removed in
accordance with Section 4.2; (e) shall be certified by a
physician to be mentally or physically unable to perform his
or her duties hereunder; (f) shall be declared bankrupt by a
court with appropriate jurisdiction, file a petition
commencing a voluntary case under any bankruptcy law or make
an assignment for the benefit of creditors; (g) shall have a
receiver appointed to administer the property or affairs of
such Manager; or (h) shall otherwise cease to be a Manager of
the Fund under the Delaware Act.
4.2 REMOVAL OF THE MANAGERS
Any Manager may be removed either (a) with or without cause by
the vote or written consent of at least two thirds (2/3) of
the Managers not subject to the removal vote (but only if
there are at least three Managers serving on the Board at the
time of such vote or written consent) or (b) with or without
cause by, if at a meeting, a vote of the Members holding a
majority of the total number of votes present at such meeting
or, if by written consent, a vote of Members holding at least
two-thirds (2/3) of the total number of votes eligible to be
cast by all Members.
4.3 TRANSFER OF SHARES OF MEMBERS
(a) Shares of a Member may be Transferred only (i) by
operation of law pursuant to the death, divorce, bankruptcy,
insolvency, dissolution, or incompetency of such Member or
(ii) with the written consent of the Board (which may be
withheld in its sole and absolute discretion); provided,
however, that the Board may not consent to any Transfer other
than a Transfer (A) in which the tax basis of the Shares in
the hands of the Transferee is determined, in whole or in
part, by reference to its tax basis in the hands of the
Transferor (e.g., certain Transfers to affiliates, gifts, and
contributions to family partnerships), (B) to members of the
Member's immediate family (brothers, sisters, spouse, parents,
and children), (C) as a distribution from a qualified
retirement plan, or (D) a Transfer to which the Board may
consent pursuant to the following sentence. The Board may
consent to other pledges, Transfers, or assignments under such
other circumstances and conditions as it, in its sole and
absolute discretion, deems appropriate. In no event, however,
will any Transferee or assignee be admitted as a Member
without the consent of the Board, which may be withheld in its
sole and absolute discretion. Any pledge, Transfer, or
assignment not made in accordance with this Section 4.3 shall
be void.
(b) The Board may not consent to a Transfer of Shares of a
Member unless: (i) the Person to whom the Shares are
Transferred (or each of the Person's beneficial owners if such
a Person is a "private investment company" as defined in
paragraph (d)(3) of Rule 205-3 under the Advisers Act) is a
Person whom the Board believes is an "Eligible Investor" as
described in the Fund's Form N-2; and (ii) all the Shares of
the Member are Transferred to a single Transferee or, after
the Transfer of less than all the Member's Shares, the Net
Asset Value of the Shares of each of the Transferee and
Transferor is not less than the amount as may be fixed from
time to time by the Board as the Fund's minimum investment, if
any. Any Transferee that acquires Shares by operation of law
as the result of the death, divorce, bankruptcy, insolvency,
dissolution, or incompetency of a Member or otherwise, shall
be entitled to the distributions allocable to the Shares so
acquired and to Transfer such Shares in accordance with the
terms of this Agreement, but shall not be entitled to the
other rights of a Member unless and until such Transferee
becomes a substituted Member. If a Member Transfers Shares
with the approval of the Board, the Board shall promptly take
all necessary actions so that the Transferee to whom such
Shares are Transferred is admitted to the Fund as a Member.
Each Member effecting a Transfer and its Transferee agree to
pay all expenses, including attorneys' and accountants' fees,
incurred by the Fund in connection with such Transfer.
(c) Each Member shall indemnify and hold harmless the Fund,
the Managers, each other Member and any Affiliate of the
foregoing against all losses, claims, damages, liabilities,
costs, and expenses (including legal or other expenses
incurred in investigating or defending against any such
losses, claims, damages, liabilities, costs, and expenses or
any judgments, fines, and amounts paid in settlement), joint
or several, to which such Persons may become subject by reason
of or arising from (i) any Transfer made by such Member in
violation of this Section 4.3 and (ii) any misrepresentation
by such Member in connection with any such Transfer.
4.4 REPURCHASE OF SHARES
(a) Except as otherwise provided in this Agreement, no
Member or other Person holding Shares shall have the right to
withdraw or tender to the Fund for repurchase of those Shares.
The Board from time to time, in its sole and absolute
discretion and on such terms and conditions as it may
determine, may cause the Fund to repurchase Shares pursuant to
written tenders. In determining whether to cause the Fund to
repurchase Shares pursuant to written tenders, the Board shall
consider the following factors, among others:
(1) whether any Members have requested to tender
Shares to the Fund;
(2) the liquidity of the Fund's assets;
(3) the investment plans and working capital
requirements of the Fund;
(4) the relative economies of scale with respect to
the size of the Fund;
(5) the history of the Fund in repurchasing Shares;
and
(6) the economic condition of the securities markets.
The Board shall cause the Fund to repurchase Shares pursuant
to written tenders only on terms determined by the Board to be
fair to the Fund and to all Members (including Persons holding
Shares acquired from Members), as applicable, and otherwise in
a manner consistent with Sections 18-607 and 18-804 of the
Delaware Act, to the extent applicable.
(b) A Member who tenders for repurchase only a portion of
the Member's Shares will be required to continue to own Shares
having a Net Asset Value not less than such amount as may be
fixed from time to time by the Board as the Fund's minimum
investment, if any. If a Member tenders an amount that would
cause Net Asset Value of the Member's remaining Shares to fall
below the required minimum, the Fund reserves the right to
reduce the amount to be purchased from the Member so that the
required minimum balance is maintained or to repurchase all of
the tendering Member's Shares. A Member who tenders for
repurchase Shares initially purchased within a period
determined by the Board before such tender may, as determined
by the Board, be required to pay an early repurchase charge of
a percentage of the repurchase price for such Shares, which
charge will be withheld from the payment of the repurchase
price.
(c) The Board may cause the Fund to repurchase Shares of a
Member or any Person acquiring Shares from or through a Member
in the event that the Board determines or has reason to
believe that:
(1) such Shares have been Transferred in violation of
Section 4.3 hereof, or such Shares have vested in any
Person by operation of law as the result of the death,
divorce, bankruptcy, insolvency, dissolution, or
incompetency of a Member;
(2) ownership of such Shares by a Member or other
Person will cause the Fund to be in violation of, or
subject the Fund to additional registration or regulation
under, the securities laws of the United States or any
other relevant jurisdiction;
(3) continued ownership of such Shares may subject the
Fund or any of the Members to an undue risk of adverse
tax or other fiscal consequences;
(4) any of the representations and warranties made by
a Member in connection with the acquisition of Shares was
not true when made or has ceased to be true; or
(5) it would be in the best interests of the Fund, as
determined by the Board in its sole and absolute
discretion, for the Fund to repurchase such Shares.
(d) Provided that the Board shall have made a determination
to repurchase Shares, Shares will be valued for purposes of
determining their repurchase price as of any date chosen or
authorized by the Board, in its discretion, as the valuation
date for a repurchase offer (a "Valuation Date"). Shares to be
repurchased pursuant to subsection 4.4(c) shall be tendered by
the affected Members, and payment for such Shares shall be
made by the Fund, at such times as the Fund shall set forth in
its notice to the affected Members. Shares being tendered by
Members pursuant to subsection 4.4(a) generally will need to
be tendered by Members at least ninety-five (95) days prior to
the applicable Valuation Date. The Fund intends to make an
initial payment ("Initial Payment") for repurchased Shares as
follows: (A) for Members from whom the Fund accepts for
repurchase only a portion of their Shares, the Fund intends to
pay 100% of the estimated unaudited net asset value of the
Shares repurchased determined as of the applicable Valuation
Date; and (B) for Members from whom the Fund accepts for
repurchase all of their Shares, the Fund intends to pay 95% of
the estimated unaudited net asset value of the Shares
repurchased determined as of the applicable Valuation Date.
Payments in connection with tenders generally will be made as
of the later of (1) the 45th day after the Valuation Date, or
(2) in the sole discretion of the Fund, if the Fund has
requested withdrawals of its investment from any Investment
Funds in order to fund the repurchase of Shares, within ten
Business Days after the Fund has received at least 95% of the
aggregate amount so requested to be withdrawn by the Fund from
the Investment Funds. The Fund may establish an escrow to hold
funds or otherwise earmark funds (including investments)
reasonably determined by the Board to be needed to make both
the Initial Payment and, if the Initial Payment is less than
100% of the estimated unaudited net asset value of the Shares
repurchased, the balance of such estimated net asset value.
The Fund will pay the balance, if any, of the purchase price
based on the audited financial statements of the Fund for the
Fiscal Year in which such repurchase was effective. This
amount will be subject to adjustment upon completion of the
annual audit of the Fund's financial statements for the Fiscal
Year in which the repurchase is effected. (It is expected
that the Fund's annual audit will be completed within 60 days
after the end of each Fiscal Year.) The Board may, however,
pay a portion of the repurchase price in Securities having a
value, determined as of the applicable Valuation Date, equal
to the fair market value of such Securities. Members may be
compelled to accept any portion of the redemption price in
Securities without regard to the provisions of Section 18-605
of the Delaware Act.
ARTICLE V: SHARES
5.1 SHARES
(a) The interest of the Members hereunder shall be divided
into an unlimited number of Shares. Minimum initial and
additional investment amounts may be established by the Board,
in its sole and absolute discretion. Members may make
additional investments in the Fund effective as of such times
as the Board, in its sole and absolute discretion, may permit,
subject to Section 2.7 hereof, but no Member shall be
obligated to make any additional investments in the Fund.
Initial and any additional investments in the Fund shall be
payable in cash in readily available funds at the date of the
proposed acceptance of the investment, or in-kind or in such
manner and at such times as may be determined by the Board.
(b) All Shares issued in accordance with the terms hereof,
including, without limitation, Shares issued in connection
with a dividend in Shares or a split of Shares, shall be fully
paid and nonassessable when the consideration determined by
the Managers (if any) therefor shall have been received by the
Fund.
(c) The ownership of Shares shall be recorded on the books
of the Fund or a transfer or similar agent. No certificates
certifying the ownership of Shares shall be issued except as
the Managers may otherwise determine from time to time. The
Managers may make such rules as they consider appropriate for
the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Fund as kept by the
Fund or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Members and as to the
number of Shares held from time to time by each Member. The
Managers may at any time discontinue the issuance of Share
certificates and may, by written notice to each Member,
require the surrender of Share certificates to the Fund for
cancellation. Such surrender and cancellation shall not affect
the ownership of Shares in the Fund.
(d) All consideration received by the Fund for the issue or
sale of Shares, together with all assets in which such
consideration is invested or reinvested, all income, earnings,
profits, proceeds thereof, including any proceeds derived from
the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
belong to the Fund generally and not to the account of any
particular Member or holder of Shares, subject only to the
rights of creditors, and shall be so recorded upon the books
of account of the Fund. The treatment of these items under
this Section 5.1(d) shall replace and be in lieu of the
treatment of the same under the relevant provisions of Article
V of the Prior Limited Liability Company Agreement,
replacement treatment to be effective as of the effective date
of this Agreement and at all times thereafter.
(e) The liabilities, expenses, costs, charges and reserves
attributable to the Fund shall be charged and allocated to the
assets belonging to the Fund generally and not to the account
of any particular Member or holder of Shares and shall be so
recorded upon the books of account of the Fund. The treatment
of these items under this Section 5.1(e) shall replace and be
in lieu of the treatment of the same under the relevant
provisions of Article V of the Prior Limited Liability Company
Agreement, such replacement treatment to be effective as of
the effective date of this Agreement and at all times
thereafter.
(f) Dividends and distributions on Shares may be paid to the
Members or holders of Shares in accordance with Section
7.4. Notwithstanding any provision to the contrary contained
in this Agreement, the Managers shall not be required to make
a distribution to the Members on account of their interest in
the Fund if such distribution would violate Section 18-607 of
the Delaware Act or any other applicable law.
(g) Shares shall be transferable only in accordance with
Section 4.3 hereof.
(h) Except as provided herein, each Share of a Class shall
represent an equal proportionate interest in the assets of the
Fund (subject to the liabilities of the Fund) with respect to
such Class, and each Share of a Class shall be equal with
respect to Net Asset Value per Share as against each other
Share of such Class. The rights attaching to all Shares of a
Class shall be identical as to right of repurchase by the
Fund, dividends and other distributions (whether or not on
liquidation), and voting rights (the vote attaching to each
Share or fraction thereof being equal to the dollar value of
the same as of the record date for any such vote, if such
record date is the last day of a Fiscal Period, or if such
record date is not the last day of a Fiscal Period, the last
day of a Fiscal Period most recently preceding such record
date). The Board of Managers may from time to time divide or
combine the Shares into a greater or lesser number of Shares
provided that such division or combination does not change the
proportionate beneficial interest in the assets of the Fund of
any Member or other holder of Shares or in any way affect the
rights of Shares.
5.2 RIGHTS OF MEMBERS
(a) The Shares shall be personal property giving only the
rights in this Agreement specifically set forth or as
otherwise required by the Delaware Act. The ownership of Fund
assets of every description and the right to conduct any
business herein before described are vested exclusively in the
Managers, and the Members shall have no interest therein other
than the interest conferred by their Shares, and they shall
have no right to call for any partition or division of any
property, profits, rights or interests of the Fund nor can
they be called upon to share or assume any losses of the Fund.
The Shares shall not entitle the holder to preference,
preemptive, appraisal, conversion or exchange rights (except
as specified by the Managers when creating the Shares, as in
preferred shares).
(b) Every Member by virtue of having become a Member shall
be held to have expressly assented and agreed to the terms of
this Agreement and the By-laws and to have become a party
hereto and thereto. The death of a Member during the
continuance of the Fund shall not operate to terminate the
same nor entitle the representative of any deceased Member to
an accounting or to take any action in court or elsewhere
against the Fund or the Managers, but only to the rights of
said decedent under this Agreement.
(c) No Member shall be entitled to interest on any
investment in the Fund, nor shall any Member be entitled to
the return of any capital of the Fund except (i) upon the
repurchase by the Fund of a part or all of such member's
Shares pursuant to section 4.4 hereof, or (ii) upon the
liquidation of the Fund's assets pursuant to Section 6.2
hereof. No Member shall be liable for the return of any such
amounts.
5.3 ISSUANCE OF SHARES
The Managers, in their discretion, may from time to time
without authorization or vote of the Members issue Shares and
additional Classes of Shares established pursuant to Section
3.1(e), in addition to the then issued and outstanding Shares
and Shares held in the treasury, to such party or parties and
for such amount and type of consideration, including cash or
property, at such time or times, and on such terms as the
Managers may determine, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and
businesses. The Managers may from time to time divide or
combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interest in such
Shares. Issuances and repurchases of Shares may be made in
whole Shares and/or fractions of a Share or multiples thereof
as the Managers may determine.
As of the date of this Agreement, the Board had established
and duly authorized for issuance Class A Shares and Class I
Shares of the Fund.
5.4 REGISTER OF SHARES
A register shall be kept at the offices of the Fund or any
transfer agent duly appointed by the Managers under the
direction of the Managers which shall contain the names and
addresses of the Members and the number of Shares held by them
respectively and a record of all transfers thereof. Separate
registers shall be established and maintained for each Class
of Shares. Each such register shall be conclusive as to who
are the holders of the Shares of the applicable class of
Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of
Members. No Member shall be entitled to receive payment of
any dividend or distribution, nor to have notice given to such
Member as herein provided, until such Member has given its
address to a transfer agent or such other officer or agent of
the Managers as shall keep the register for entry thereon.
The Managers, in their discretion, may authorize the issuance
of share certificates and promulgate appropriate fees therefor
and rules and regulations as to their use.
5.5 WITHHOLDING
(a) The Board may withhold from any distribution to a Member
and pay over to the Internal Revenue Service (or any other
relevant taxing authority) any taxes due in respect of such
Member to the extent required by the Code or any other
applicable law.
(b) The Board shall not be obligated to apply for or obtain
a reduction of or an exemption from withholding tax on behalf
of any Member that may be eligible for such reduction or
exemption. To the extent that a Member claims to be entitled
to a reduced rate of, or exemption from, a withholding tax
pursuant to an applicable income tax treaty, or otherwise,
such Member shall furnish the Board with such information and
forms as such Member may be required to complete in order to
comply with any and all laws and regulations governing the
obligations of withholding tax agents. Each Member represents
and warrants that any such information and forms furnished by
such Member shall be true and accurate and agrees to indemnify
the Fund, the Board and each of the other Members from any and
all damages, costs and expenses resulting from the filing of
inaccurate or incomplete information or forms relating to such
withholding taxes.
5.6 RESERVES
(a) All provisions under Section 5.6 of the Prior Limited
Liability Company Agreement (also under the heading
"Reserves") shall be understood as terminated as of the date
of the Conversion, with no further rights on the part of any
Member to specific credits with respect to reductions in
previously established reserves for the liabilities of the
Fund and no further rights on the part of the Fund to
collections from Members with respect to increases in
previously established reserves for Fund liabilities.
(b) Also as of the date of the Conversion all matters
relating to Fund reserves of the nature contemplated by the
preceding clause (a) shall be governed by Sections 5.1(e), 6.2
and 7.4(c) hereof.
ARTICLE VI: DISSOLUTION AND LIQUIDATION
6.1 DISSOLUTION
The Fund shall be dissolved only:
(1) upon the affirmative vote to dissolve the Fund by
the Board;
(2) upon the determination by the Board not to
continue the business of the Fund or the failure of
Members to elect the required number of Managers at a
meeting called by ASGI in accordance with Section 2.6(c)
hereof;
(3) at any time there are no Members in accordance
with and subject to Section 18-801(a)(4) of the Delaware
Act; or
(4) the entry of a decree of judicial dissolution under
Section 18-802 of the Delaware Act.
Dissolution of the Fund shall be effective on the later of the
day on which the event giving rise to the dissolution shall
occur or, in connection with clause (2) above, the conclusion
of the 60-day period as provided in Section 2.6, but the Fund
shall not terminate until the assets of the Fund have been
liquidated, and the business and affairs of the Fund have been
wound up, in accordance with Section 6.2 hereof and the
Certificate has been canceled.
6.2 LIQUIDATION OF ASSETS
(a) Upon the dissolution of the Fund as provided in Section
6.1 hereof, the Board shall promptly appoint ASGI as the
liquidator, and ASGI shall liquidate the assets, and wind up
the business and affairs of the Fund, except that, if ASGI is
unable or unwilling to perform this function, the Board shall
appoint another Person to serve as liquidator, and, if the
Board is unable or unwilling to appoint another Person to
serve as liquidator, Members holding a majority of the total
number of votes eligible to be cast by all Members shall
appoint another Person to serve as liquidator, and such Person
shall promptly liquidate assets, and wind up the business and
affairs of the Fund. The proceeds from liquidation (after
establishment of appropriate reserves for contingencies in
such amount as the Board, ASGI or the liquidator shall deem
appropriate in its sole and absolute discretion as applicable)
shall be distributed in accordance with Section 18-804 of the
Delaware Act as follows:
(1) the debts of the Fund and the expenses of
liquidation (including legal and accounting expenses
incurred in connection therewith), up to and including
the date that distribution of the Fund's assets to the
Members has been completed, shall first be paid in
accordance with priority and on a pro rata basis in
accordance with their respective amounts; and
(2) the Members shall next be paid on a pro rata basis
in accordance with the Net Asset Value of their Shares on
the date of the distributions under this Section
6.2(a)(2).
(b) Anything in this Section 6.2 to the contrary
notwithstanding, upon dissolution of the Fund, the Board or
other liquidator may distribute ratably to the Members in kind
any assets of the Fund; provided, however, that if any in-kind
distribution is to be made, the assets distributed in kind
shall be valued pursuant to Section 7.3 hereof as of the
actual date of their distribution and charged as so valued and
distributed against amounts to be paid under Section 6.2(a)
above. Members may be compelled to accept in-kind
distributions without regard to the provisions of Section 18-
605 of the Delaware Act.
ARTICLE VII: ACCOUNTING, VALUATIONS, AND BOOKS AND RECORDS
7.1 ACCOUNTING AND REPORTS
(a) The Fund shall adopt for tax accounting purposes any
accounting method that the Board shall decide in its sole and
absolute discretion is in the best interests of the Fund. The
Fund's accounts shall be maintained in U.S. currency.
(b) After the end of each Taxable Year, the Fund shall
furnish to each Member such information regarding the
operation of the Fund and such Member's Shares as is necessary
for such Member to complete federal, state, and local income
tax or information returns and any other tax information
required by federal, state, or local law.
(c) Except as otherwise required by the 1940 Act, or as may
otherwise be permitted by rule, regulation, or order, within
60 days after the close of the period for which a report
required under this Section 7.1(c) is being made, the Fund
shall furnish to each Member a semi-annual report and an
audited annual report containing the information required by
such Act. The Fund shall cause financial statements contained
in each annual report furnished hereunder to be accompanied by
a certificate of independent public accountants based upon an
audit performed in accordance with generally accepted
accounting principles. The Fund may furnish to each Member
such other periodic reports as the Board deems necessary or
appropriate in its sole and absolute discretion.
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS
All matters concerning the determination of accounting matters
shall be determined by the Board in its sole and absolute
discretion unless specifically and expressly otherwise
provided for by the provisions of this Agreement or required
by law, and such determinations shall be final and binding on
all the Members.
7.3 VALUATION OF ASSETS
(a) Except as may be required by the 1940 Act, the Board
shall value or have valued any Securities or other assets and
liabilities of the Fund as of the close of business on the
last calendar day of each Fiscal Period in accordance with
such valuation procedures as shall be established from time to
time by the Board and which conform to the requirements of the
1940 Act, such that Securities and other assets owned by the
Fund will be valued at market value, if market quotations are
readily available, or will be valued at fair value, as
described below in 7.3(b). In determining the value of the
assets of the Fund, no value shall be placed on the goodwill
or name of the Fund, or the office records, files, statistical
data, or any similar intangible assets of the Fund not
normally reflected in the Fund's accounting records, but there
shall be taken into consideration any items of income earned
but not received, expenses incurred but not yet paid,
liabilities, fixed or contingent, and any other prepaid
expenses to the extent not otherwise reflected in the books of
account, and the value of options or commitments to purchase
or sell Securities or commodities pursuant to agreements
entered into prior to such valuation date.
(b) The Fund will value assets for which market quotations
are not readily available and interests in Investment Funds at
their "fair value," as determined in good faith by the Board,
which value ordinarily will be the value of an interest in an
Investment Fund determined by the Investment Manager of the
Investment Fund in accordance with the policies established by
the Investment Fund, absent information in the Board's
determination and discretion that indicates that such value
does not represent the fair value of the interest.
(c) The value of Securities and other assets of the Fund
and the Net Assets of the Fund as a whole determined pursuant
to this Section 7.3 shall be conclusive and binding on all of
the Members and all parties claiming through or under them in
the absence of manifest error.
7.4 DISTRIBUTIONS TO MEMBERS.
(a) Dividends and distributions on Shares may be paid to
the Members or holders of Shares, with such frequency as the
Managers may determine, which may be daily or otherwise
pursuant to a standing resolution or resolutions adopted only
once or with such frequency as the Board of Managers may
determine, from such of the income, capital gains accrued or
realized, and capital and surplus, after providing for actual
and accrued liabilities of the Fund. All dividends and
distributions on Shares of a class shall be distributed pro
rata to the Members or other holders of Shares of such class
in proportion to the number of Shares of such class held by
such persons at the date and time of record established for
the payment of such dividends or distributions, except that in
connection with any dividend or distribution program or
procedure the Board of Managers may determine that no dividend
or distribution shall be payable on Shares as to which the
Member's purchase order and/or payment have not been received
by the time or times established by the Board of Managers
under such program or procedure. Dividends and distributions
on Shares may be made in cash or Shares or a combination
thereof as determined by the Board of Managers or pursuant to
any program that the Board of Managers may have in effect at
the time for the election by each Member or other holder of
Shares of the mode of the making of such dividend or
distribution to that person. Any dividend or distribution
paid in Shares will be paid at the Net Asset Value thereof.
Notwithstanding anything in this Agreement to the contrary,
the Managers may at any time declare and distribute a dividend
of stock or other property pro rata among the Members or other
holders of Shares at the date and time of record established
for the payment of such dividends or distributions.
(b) Prior to the dissolution of the Fund, the Board, in its
sole and absolute discretion, may authorize the Fund to make
distributions in cash or in kind at any time to any one or
more of the Members, subject to Section 18-607 of the Delaware
Act. Members may be compelled to accept in-kind distributions
without regard to the provisions of Section 18-605 of the
Delaware Act.
(c) The Fund may always retain such amount as they may
deem necessary to pay the debts or expenses of the Fund or to
meet obligations of the Fund, or as the Managers otherwise may
deem desirable to use in the conduct of the Fund's affairs or
to retain for future requirements or extensions of the
business.
(d) Inasmuch as the computation of net income and gains
for Federal income tax purposes may vary from the computation
thereof on the books, the above provisions shall be
interpreted to give the Managers the power in their discretion
to distribute for any Taxable Year as ordinary dividends and
as capital gains distributions, respectively, additional
amounts sufficient to enable the Fund to avoid or reduce
liability for taxes.
7.5 POWER TO MODIFY FOREGOING PROCEDURES
Notwithstanding any of the foregoing provisions of this
Article VII, the Managers may prescribe, in their absolute
discretion except as may be required by the 1940 Act, such
other bases and times for determining the per share asset
value of the Fund's Shares or net income, or the declaration
and payment of dividends and distributions as they may deem
necessary or desirable for any reason, including to enable the
Fund to comply with any provision of the 1940 Act, or other
applicable laws or regulations, or any order of exemption
issued by the U.S. Securities and Exchange Commission, all as
in effect now or hereafter amended or modified.
7.6 DIVIDEND REINVESTMENT PLAN
The Managers may establish a dividend reinvestment plan for
any Class of Shares providing for the automatic reinvestment
of cash dividends on the Shares of such Class in additional
shares of such Class or of another Class of Shares. Unless
otherwise determined by the Managers, all dividends on Shares
of any Class for which such a dividend reinvestment plan has
been established shall automatically be reinvested in the Fund
pursuant to such plan unless the holder of such Shares shall
affirmatively elect, in such manner as specified by the Fund,
not to participate in the dividend reinvestment plan.
ARTICLE VIII: MISCELLANEOUS PROVISIONS
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT
(a) Except as otherwise provided in this Section 8.1, this
Agreement may be amended, in whole or in part, with: (i) the
approval of the Board (including the vote of a majority of the
Independent Managers, if required by the 0000 Xxx) and (ii) if
required by the 1940 Act, the approval of the Members by such
vote as is required by the 0000 Xxx.
(b) The execution of an instrument setting forth the
establishment and designation and the relative rights of any
Class of Shares in accordance with Section 3.1 hereof shall,
without any authorization, consent or vote of the Members,
effect an amendment of this Agreement.
(c) Any amendment that would:
(1) increase the obligation of a Member to make any
additional investment in the Fund; or
(2) result in the forfeiture of any portion of a
Member's Shares;
may be made only if (i) the written consent of each Member
adversely affected thereby is obtained prior to the
effectiveness thereof or (ii) such amendment does not become
effective until (A) each Member has received written notice of
such amendment and (B) any Member objecting to such amendment
has been afforded a reasonable opportunity (pursuant to such
procedures as may be prescribed by the Board) to tender all of
its Shares for repurchase by the Fund. Any amendment required
or permitted to be submitted to Members which, as the Managers
determine, shall affect the Members of one or more Classes
shall be authorized by vote of the Members of each Class
affected and no vote of Members of a Class not affected shall
be required.
(d) Nothing contained in this Agreement shall permit the
amendment of this Agreement to impair the exemption from
personal liability of the Members, Managers, officers,
employees and agents of the Fund or to permit assessments upon
Members.
(e) The power of the Board to amend this Agreement at any
time without the consent of the other Members as set forth in
paragraph (a) of this Section 8.1 shall specifically include
the power to:
(1) restate this Agreement together with any
amendments hereto that have been duly adopted in
accordance herewith to incorporate such amendments in a
single, integrated document;
(2) amend this Agreement to effect compliance with any
applicable law or regulation (other than with respect to
the matters set forth in Section 8.1(c) and (d) hereof)
or to cure any ambiguity or to correct or supplement any
provision hereof that may be inconsistent with any other
provision hereof; and
(3) as provided in Section 3.1(e).
(f) The Board shall cause written notice to be given of any
amendment to this Agreement (other than any amendment of the
type contemplated by clause (1) of Section 8.1(e) hereof) to
each Member, which notice shall set forth (i) the text of the
amendment or (ii) a summary thereof and a statement that the
text thereof will be furnished to any Member upon request.
8.2 SPECIAL POWER OF ATTORNEY
(a) Each Member hereby irrevocably makes, constitutes and
appoints each Manager, acting severally, and any liquidator of
the Fund's assets appointed pursuant to Section 6.2 hereof
with full power of substitution, the true and lawful
representatives and attorneys-in-fact of, and in the name,
place and stead of, such Member, with the power from time to
time to make, execute, sign, acknowledge, swear to, verify,
deliver, record, file, and/or publish:
(1) any amendment to this Agreement that complies with
the provisions of this Agreement (including the
provisions of Section 8.1 hereof);
(2) any amendment to the Certificate required because
this Agreement is amended, including, without limitation,
an amendment to effectuate any change in the membership
of the Fund; and
(3) all such other instruments, documents, and
certificates that, in the opinion of legal counsel to the
Fund, may from time to time be required by the laws of
the United States of America, the State of Delaware or
any other jurisdiction in which the Fund shall determine
to do business, or any political subdivision or agency
thereof, or that such legal counsel may deem necessary or
appropriate to effectuate, implement, and continue the
valid existence and business of the Fund as a limited
liability company under the Delaware Act.
(b) Each Member is aware that the terms of this Agreement
permit certain amendments to this Agreement to be effected and
certain other actions to be taken or omitted by or with
respect to the Fund without such Member's consent. If an
amendment to the Certificate or this Agreement or any action
by or with respect to the Fund is taken in the manner
contemplated by this Agreement, each Member agrees that,
notwithstanding any objection that such Member may assert with
respect to such action, the attorneys-in-fact appointed hereby
are authorized and empowered, with full power of substitution,
to exercise the authority granted above in any manner that may
be necessary or appropriate to permit such amendment to be
made or action lawfully taken or omitted. Each Member is
fully aware that each other Member will rely on the
effectiveness of this special power-of-attorney with a view to
the orderly administration of the affairs of the Fund.
(c) This power-of-attorney is a special power-of-attorney
and is coupled with an interest in favor of each of the
Managers and any liquidator of the Fund's assets and, as such:
(1) shall be irrevocable and continue in full force
and effect notwithstanding the subsequent death or
incapacity of any party granting this power-of-attorney,
regardless of whether the Fund, Board or liquidator shall
have had notice thereof; and
(2) shall survive a Transfer by a Member of such
Member's Shares, except that where the Transferee thereof
has been approved by the Board, this power-of-attorney
given by the Transferor shall survive such Transfer for
the sole purpose of enabling the Board to execute,
acknowledge, and file any instrument necessary to effect
such Transfer.
8.3 NOTICES
Except as otherwise set forth in this Agreement, notices that
may or are required to be provided under this Agreement shall
be made, if to a Member, by regular mail or commercial courier
service or, if to the Fund or the Board, by hand delivery,
registered or certified mail return receipt requested,
commercial courier service, telex, or telecopier, and shall be
addressed to the respective parties hereto at their addresses
as set forth in the books and records of the Fund. Notices
shall be deemed to have been provided (a) when delivered by
hand, on the date delivered, (b) when sent by mail or
commercial courier service, when deposited, postage or fee
prepaid, and (c) when sent, if sent by telex or telecopier. A
document that is not a notice and that is required to be
provided under this Agreement by any party to another party
may be delivered by any reasonable means.
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors,
permitted assigns, executors, trustees, or other legal
representatives, but the rights and obligations of the parties
hereunder may not be Transferred or delegated except as
provided in this Agreement and any attempted Transfer or
delegation thereof that is not made pursuant to the terms of
this Agreement shall be void.
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2
The parties hereto acknowledge that this Agreement is not
intended to, and does not, set forth the substantive
provisions contained in the 1940 Act and the Fund's Form N-2
that affect numerous aspects of the conduct of the Fund's
business and of the rights, privileges, and obligations of the
Members. Each provision of this Agreement shall be subject to
and interpreted in a manner consistent with the applicable
provisions of the 1940 Act and the Fund's Form N-2.
8.6 CHOICE OF LAW
Notwithstanding the place where this Agreement or the
Subscription Agreement may be executed by any of the parties
hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed under the laws of the
State of Delaware, including the Delaware Act without regard
to the conflict of law principles of such State.
8.7 NOT FOR BENEFIT OF CREDITORS
The provisions of this Agreement are intended only for the
regulation of relations among past, present and future
Members, Managers, and the Fund. This Agreement is not
intended for the benefit of creditors, in their capacity as
such, and no rights are granted to creditors, in their
capacity as such, under this Agreement.
8.8 THIRD-PARTY BENEFICIARIES
Each Indemnitee is a third-party beneficiary of Section 3.8.
8.9 MERGER AND CONSOLIDATION
(a) The Fund may merge or consolidate with or into one or
more limited liability companies or other business entities
pursuant to an agreement of merger or consolidation that has
been approved by the Board in the manner contemplated by
Section 18-209(b) of the Delaware Act or may sell, lease or
exchange all or substantially all of the Fund property,
including its good will, upon such terms and conditions and
for such consideration when and as authorized by the Board, in
each case without the vote or consent of the Members.
(b) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, an agreement of merger or
consolidation approved by the Board in accordance with Section
18-209(b) of the Delaware Act may, to the extent permitted by
Section 18-209(f) of the Delaware Act, (i) effect any
amendment to this Agreement, (ii) effect the adoption of a new
limited liability company agreement for the Fund if it is the
surviving or resulting limited liability company in the merger
or consolidation, or (iii) provide that the limited liability
company agreement of any other constituent limited liability
company to the merger or consolidation (including a limited
liability company formed for the purpose of consummating the
merger or consolidation) shall be the limited liability
company agreement of the surviving or resulting limited
liability company; provided, however, that no such merger or
consolidation shall have the effect of amending this Agreement
in a manner not permitted under Section 8.1.
8.10 PRONOUNS
All pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular, or plural, as the identity of the
Person or Persons, firm or corporation may require in the
context thereof.
8.11 CONFIDENTIALITY
(a) A Member may obtain from the Fund, for any purpose
reasonably related to such Member's Shares, such information
regarding the business affairs or assets of the Fund as is
just and reasonable under the Delaware Act, subject to
reasonable standards (including standards governing what
information and documents are to be furnished, at what time
and location and at whose expense) established by the Board.
Notwithstanding the foregoing, no other right shall be
available to the Members, including the right to obtain
information as provided in Section 18-305 of the Act; and
further provided, that, the Board or its designee shall have
the right to impose such restrictions with respect to such
examination as the Board or its designee, in its discretion,
determines are appropriate under the circumstances.
Notwithstanding the foregoing, the Board or its designee shall
have the right to keep confidential from Members for such
period of time as the Board or its designee deems reasonable,
any information that the Board or its designee reasonably
believes to be in the nature of trade secrets or other
information the disclosure of which the Board or its designee
in good faith believes could damage the Fund or its business
or that the Fund is required by law or by agreement with a
third party to keep confidential including, but not limited
to, the names of Members and former Members; the names, or
other identifying information, of Investment Funds, Securities
and Investment Managers; and the terms of any agreement with
any Member.
(b) Each Member covenants that, except as required by
applicable law or any regulatory body, it will not divulge,
furnish, or make accessible to any other Person the name
and/or address (whether business, residence, or mailing) of
any other Member (collectively, "Confidential Information")
without the prior written consent of the Board or its
designee, which consent may be withheld in its sole and
absolute discretion.
(c) Each Member recognizes that in the event that this
Section 8.11 is breached by any Member or any of its owners,
principals, partners, members, managers, directors, officers,
employees, agents assigns, successors or legal representatives
or any of its Affiliates, including any of such Affiliates'
owners, principals, partners, members, managers, directors,
officers, employees, agents, assigns, successors or legal
representatives irreparable injury may result to the non-
breaching Members and the Fund. Accordingly, in addition to
any and all other remedies at law or in equity to which the
non-breaching Members and the Fund may be entitled, such
Members and the Fund shall also have the right to obtain
equitable relief, including, without limitation, injunctive
relief, to prevent any disclosure of Confidential Information,
plus the recovery of reasonable attorneys' fees and other
litigation expenses incurred in connection therewith. In the
event that the Fund determines that any of the Members or any
of such Member's owners, principals, partners, members,
managers, directors, officers, employees, agents, assigns,
successors or legal representatives or any of its Affiliates,
including any of such Affiliates' owners, principals,
partners, members, managers, directors, officers, employees,
agents, assigns, successors or legal representatives should be
enjoined from or required to take any action to prevent the
disclosure of Confidential Information, each of the Members
agrees that the Fund may, at its own expense, pursue in a
court of appropriate jurisdiction such injunctive relief.
8.12 SEVERABILITY
If any provision of this Agreement is determined by a court of
competent jurisdiction not to be enforceable in the manner set
forth in this Agreement, each Member agrees that it is the
intention of the Members that such provision should be
enforceable to the maximum extent possible under applicable
law. If any provision of this Agreement is held to be invalid
or unenforceable, such invalidation or unenforceability shall
not affect the validity or enforceability of any other
provision of this Agreement (or portion thereof).
8.13 FILING OF RETURNS
The Board or its designated agent shall prepare and file, or
cause the accountants of the Fund to prepare and file, any
required federal, state and local income tax returns for each
tax year of the Fund.
8.14 USE OF NAMES "ALTERNATIVE STRATEGIES GROUP, INC.,"
"ASGI" AND "ASGI AURORA OPPORTUNITIES FUND, LLC"
ASGI hereby grants to the Fund a royalty-free, non-exclusive
license to use the name "Alternative Strategies Group, Inc.,"
"ASGI" or "ASGI Aurora Opportunities Fund, LLC" (or an
abbreviation or derivation thereof) in the name of the Fund.
Such license may, at such time as neither ASGI nor an
Affiliate of ASGI shall serve as an investment adviser to the
Fund, or at such time as neither Aurora Investment Management
L.L.C. ("Aurora") nor an affiliate of Aurora shall serve as a
sub-adviser to the Fund, upon fifteen (15) days notice by
ASGI, or upon termination of this Agreement, be terminated by
ASGI, in which event the Fund shall promptly take whatever
action may be necessary to change its name and discontinue any
further use of the names "Alternative Strategies Group, Inc.,"
"ASGI" and "ASGI Aurora Opportunities Fund, LLC" (or an
abbreviation or derivation thereof) in the name of the Fund or
otherwise. The names "Alternative Strategies Group, Inc.,"
"ASGI" or "ASGI Aurora Opportunities Fund, LLC" (or an
abbreviation or derivation thereof) may be used or licensed by
ASGI in connection with any of its activities or licensed by
ASGI to any other party.
8.15 ACKNOWLEDGMENT BY THE PARTIES
Each of the undersigned acknowledges having read this
Agreement in its entirety before signing, including the
confidentiality clause set forth in Section 8.11.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
MANAGERS:
_/s/ Xxxxx Dunn_______
Name: Xxxxx Xxxx
Title: Manager
_/s/ Xxxx Taback______
Name: Xxxx Xxxxxx
Title: Manager
_/s/ Xxxxx Dean________
Name: Xxxxx Xxxx
Title: Manager
_/s/ Xxxxx Hille________
Name: Xxxxx Xxxxx
Title: Manager
_/s/ Xxxxxxx Golding____
Name: Xxxxxxx Xxxxxxx
Title: Manager
_/s/ Xxxxxxxx Hook______
Name: Xxxxxxxx Xxxx
Title: Manager
_/s/ Xxxxxx Schmal______
Name: Xxxxxx Xxxxxx
Title: Manager
MEMBERS:
Each Person who shall sign a subscription agreement,
application or certification and who shall be accepted by the
Board to the Fund as a Member.
