Exhibit (2)(a)(2)
LIMITED LIABILITY COMPANY AGREEMENT
OF
X.X. XXXXXX ATLAS GLOBAL LONG/SHORT EQUITY FUND, L.L.C.
This Limited Liability Company Agreement (this "Agreement") of
X.X. Xxxxxx Atlas Global Long/Short Equity Fund, L.L.C., dated and effective as
of February 7, 2003, is entered into by Xxxx Xxxxxxx, as the sole member (the
"Member").
The Member, by execution of this Agreement, hereby forms a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del.C. Section 18-101, et seq.), as amended
from time to time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company
formed hereby is X.X. Xxxxxx Atlas Global Long/Short Equity Fund, L.L.C. (the
"Company").
2. CERTIFICATES. The designation of Xxxxxx X. Xxxx as an
"authorized person" within the meaning of the Act, and the execution, delivery
and filing of the Certificate of Formation of the Company by Xxxxxx X. Xxxx with
the Secretary of State of the State of Delaware is herby ratified. Upon the
filing of the Certificate of Formation with the Secretary of State of the State
of Delaware, her powers as an "authorized person" ceased, and thereupon the
Member and Xxxx X. Xxxxx each became a designated "authorized person" and each
shall continue as a designated "authorized person" within the meaning of the
Act. The Member and Xxxx X. Xxxxx are each hereby authorized severally to
execute, deliver and file any certificates (and any amendments and/or
restatements thereof) (i) to be filed in the office of the Secretary of State of
the State of Delaware, or (ii) necessary for the Company to qualify to do
business in any jurisdiction in which the Company may wish to conduct business.
3. PURPOSES. The Company is formed for the object and
purpose of, and the nature of the business to be conducted and promoted by the
Company is, engaging in any lawful act or activity for which limited liability
companies may be formed under the Act.
4. POWERS. In furtherance of its purposes, but subject
to all of the provisions of this Agreement, the Company shall have the power and
is hereby authorized to:
(a) acquire by purchase, lease, contribution of
property or otherwise, own, hold, sell, convey, transfer or dispose of any real
or personal property that may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
(b) act as a trustee, executor, nominee, bailee,
director, officer, agent or in some other fiduciary capacity for any person or
entity and to exercise all of the powers, duties, rights and responsibilities
associated therewith;
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(c) take any and all actions necessary,
convenient or appropriate as trustee, executor, nominee, bailee, director,
officer, agent or other fiduciary, including the granting or approval of
waivers, consents or amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers, consents or
amendments;
(d) operate, purchase, maintain, finance,
improve, own, sell, convey, assign, mortgage, lease or demolish or otherwise
dispose of any real or personal property that may be necessary, convenient or
incidental to the accomplishment of the purposes of the Company;
(e) borrow money and issue evidences of
indebtedness in furtherance of any or all of the purposes of the Company, and
secure the same by mortgage, pledge or other lien on the assets of the Company;
(f) invest any funds of the Company pending
distribution or payment of the same pursuant to the provisions of this
Agreement;
(g) prepay, in whole or in part, refinance,
recast, increase, modify or extend any indebtedness of the Company and, in
connection therewith, execute any extensions, renewals or modifications of any
mortgage or security agreement securing such indebtedness;
(h) enter into, perform and carry out contracts
of any kind, including, without limitation, contracts with any person or entity
affiliated with the Member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the Company;
(i) employ or otherwise engage employees,
managers, contractors, advisors, attorneys and consultants and pay reasonable
compensation for such services;
(j) enter into partnerships, limited liability
companies, trusts, associations, corporations or other ventures with other
persons or entities in furtherance of the purposes of the Company; and
(k) do such other things and engage in such
other activities related to the foregoing as may be necessary, convenient or
incidental to the conduct of the business of the Company, and have and exercise
all of the powers and rights conferred upon limited liability companies formed
pursuant to the Act.
5. PRINCIPAL BUSINESS OFFICE. The principal
business office of the Company shall be located at such location as may
hereafter be determined by the Member.
6. REGISTERED OFFICE. The address of the registered
office of the Company in the State of Delaware is c/o The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
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7. REGISTERED AGENT. The name and address of the
registered agent of the Company for service of process on the Company in the
State of Delaware are The Corporation Trust Company, Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
8. MEMBERS. The name and the mailing address of the
Member are as follows:
Name Address
---- -------
Xxxx Xxxxxxx X.X. Xxxxxx Alternative Asset Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
9. LIMITED LIABILITY. Except as otherwise required by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Member shall not be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a member of the Company.
10. CAPITAL CONTRIBUTIONS. The Member is admitted as a
member of the Company upon its execution and delivery of this Agreement. The
Member has contributed no cash or other property to the Company.
11. ADDITIONAL CONTRIBUTIONS. The Member is not required
to make any additional capital contribution to the Company. However, the Member
may at any time make additional capital contributions to the Company.
12. ALLOCATION OF PROFITS AND LOSSES. The Company's
profits and losses shall be allocated solely to the Member.
13. DISTRIBUTIONS. Distributions shall be made to the
Member at the times and in the aggregate amounts determined by the Member.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Member on account of
its interest in the Company if such distribution would violate Section 18-607 of
the Act or other applicable law.
14. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act,
management of the Company shall be vested in the Member. The Member shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise, possessed by members of a limited liability company
under the laws of the State of Delaware. The Member has the authority to bind
the Company and is authorized to execute and deliver any document on behalf of
the Company without any vote or consent of any other person or entity.
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(b) Notwithstanding any other provision of this
Agreement, the Member, Xxxx X. Xxxxx, and any Officer, as designated in writing
by the Member or Xxxx X. Xxxxx, are each hereby authorized, as an "authorized
person" or "authorized signatory," (i) to file with the Securities and Exchange
Commission and execute, in each case on behalf of the Company, a Registration
Statement on Form N-2 or other appropriate form (the "1940 Act Registration
Statement"), including the related Form N-8A and any pre-effective or
post-effective amendments to the 1940 Act Registration Statement, relating to
registration under the Investment Company Act of 1940, as amended; and (ii) to
file and execute on behalf of the Company all applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
any other papers and documents that the Member may deem necessary or incidental
to the foregoing. The foregoing authorization shall not be deemed a restriction
on the powers of the Member or any Officer to enter into other agreements on
behalf of the Company.
15. OFFICERS. The Member may, from time to time as it
deems advisable, select natural persons who are employees or agents of the
Company and designate them as officers of the Company (the "Officers") and
assign titles (including, without limitation, President, Vice President,
Secretary, and Treasurer) to any such person. Unless the Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law, the assignment of
such title shall constitute the delegation to such person of the authorities and
duties that are normally associated with that office. Any delegation pursuant to
this Section 15 may be revoked at any time by the Member. An Officer may be
removed with or without cause by the Member.
16. OTHER BUSINESS. The Member may engage in or possess
an interest in other business ventures of every kind and description,
independently or with others. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
17. EXCULPATION AND INDEMNIFICATION. No Member, Officer,
"authorized person" or "authorized signatory", as defined under this Agreement
(each, an "Indemnified Party"), shall be liable to the Company or any person or
entity bound by this Agreement for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified Party in good
faith on behalf of the Company and in a manner reasonably believed to be within
the scope of the authority conferred on such Indemnified Party by this
Agreement, except that an Indemnified Party shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Party's willful
misconduct. To the full extent permitted by applicable law, an Indemnified Party
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Indemnified Party by reason of any act or omission
performed or omitted by such Indemnified Party in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Indemnified Party by this Agreement, except that no
Indemnified Party shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Party by reason of willful
misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Section 17 shall be provided out of and to
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the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
18. ASSIGNMENTS. The Member may at any time assign in
whole or in part its limited liability company interest in the Company. The
transferee shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. If the Member transfers all of its interest in the Company
pursuant to this Section 18, such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
19. RESIGNATION. The Member may at any time resign from
the Company. If the Member resigns pursuant to this Section 19, an additional
member shall be admitted to the Company, subject to Section 20 hereof, upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective
immediately prior to the resignation, and, immediately following such admission,
the resigning Member shall cease to be a member of the Company.
20. ADMISSION OF ADDITIONAL MEMBERS. One or more
additional members of the Company may be admitted to the Company with the
written consent of the Member.
21. DISSOLUTION.
(a) The Company shall dissolve and its affairs
shall be wound up upon the first to occur of the following: (i) the written
consent of the Member, (ii) at any time there are no members of the Company
unless the Company is continued in accordance with the Act, or (iii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections
18-101 and 18-304 of the Act) of the Member shall not cause the Member to cease
to be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company
shall conduct only such activities as are necessary to wind up its affairs
(including the sale of the assets of the Company in an orderly manner), and the
assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
22. SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable, and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
that are valid, enforceable and legal.
23. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the Member with respect to the subject matter hereof.
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24. GOVERNING LAW. This Agreement is governed by, and
shall be construed under, the laws of the State of Delaware (without regard to
conflict of laws principles), all rights and remedies being governed by said
laws.
25. AMENDMENTS. This Agreement may not be modified,
altered, supplemented or amended except pursuant to a written agreement executed
and delivered by the Member.
26. SOLE BENEFIT OF MEMBER. Except as expressly provided
in Section 17, the provisions of this Agreement (including Section 11) are
intended solely to benefit the Member and, to the fullest extent permitted by
applicable law, shall not be construed as conferring any benefit upon any
creditor of the Company (and no such creditor shall be a third-party beneficiary
of this Agreement), and no Member shall have any duty or obligation to any
creditor of the Company to make any contributions or payments to the Company.
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Agreement as of the date first written
above.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Sole Member
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