ROCHDALE CORE ALTERNATIVE STRATEGIES MASTER FUND LLC LIMITED LIABILITY COMPANY OPERATING AGREEMENT
Exhibit
(a) (2)
THIS
LIMITED LIABILITY COMPANY OPERATING AGREEMENT of Rochdale Core Alternative
Strategies Master Fund LLC (the “Master Fund”) is made effective as of October
17, 2006 by the Organizational Member. Subsequently, this Agreement is effective
with respect to the Manager and each person hereinafter admitted to the Master
Fund and reflected on the books of the Master Fund as a Member.
WITNESETH:
WHEREAS,
the Master Fund heretofore has been formed as a limited liability company under
the Delaware Act, pursuant to the Certificate executed, dated as of September
11, 2006, and filed by the Organizer with the Secretary of State of the State
of
Delaware on September 11, 2006;
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:
1.1
ADVISERS ACT means the Investment Advisers Act of 1940 and the rules,
regulations, and orders thereunder, as amended from time to time, or any
successor law.
1.2
AFFILIATE means affiliated person as such term is defined in the 1940 Act,
as
hereinafter defined.
1.3
AGREEMENT means this Limited Liability Company Operating Agreement, as amended
and/or restated from time to time.
1.4
BOARD means the Board of Directors established pursuant to Section 2.6 and
each
Director on the Board shall be deemed a "Manager" of the Master Fund within
the
meaning of the Delaware Act.
1.5
CERTIFICATE means the Certificate of Formation of the Master Fund and any
amendments thereto as filed with the office of the Secretary of State of the
State of Delaware.
1.6
CLASS means any class of limited liability company interests established by
the
Board from time to time.
1.7
CLOSING means the closing of a subscription to purchase a Share.
1.8
CODE means the United States Internal Revenue Code of 1986, as amended and
as
hereafter amended from time to time, or any successor law.
1.9
CONFIDENTIAL INFORMATION shall have the meaning as set forth in Section
8.12(a).
18
1.10
DELAWARE ACT means the Delaware Limited Liability Company Act (6 DEL..
Sections18-101, et seq.) as in effect on the date hereof and as amended from
time to time, or any successor law.
1.11
DIRECTOR means each person who initially serves on the Board pursuant to Section
2.6 or who, from time to time, pursuant to this Agreement shall serve on the
Board as indicated in the records of the Master Fund. Each Director shall be
deemed a "Manager" of the Master Fund within the meaning of the Delaware
Act.
1.12
FISCAL PERIOD means the period commencing on the initial Closing, and thereafter
each period commencing on the day immediately following the last 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 a Fiscal Year;
(2) the
day preceding any day as of which a contribution to the Master Fund is made
pursuant to this Agreement;
(3) the
day as of which the Master Fund repurchases all or a portion of the Units of
any
Member pursuant to this Agreement;
(4) any
day as of which there is any distribution to a Member pursuant to this
Agreement;
(5) the
date as of which the Master Fund terminates; or
(6) any
other date as established by the Board.
1.13
FISCAL YEAR, for accounting purposes, means the period commencing on the initial
Closing and ending on March 31 and thereafter each period commencing on April
1
of each year and ending on March 31 of each year (or on the date of a final
distribution pursuant to Section 6.2 hereof), unless the Directors shall
designate another fiscal year for the Master Fund that is a permissible taxable
year under the Code. For tax purposes, the 12-month period ending December
31 of
each year will be the Master Fund’s taxable year.
1.14
FORM N-2 means the Master Fund’s Registration Statement on Form N-2 or any
successive form filed with the Securities and Exchange Commission ("SEC"),
as
amended from time to time.
1.15
INDEPENDENT DIRECTORS means those Directors who are not "interested persons"
of
the Fund as such term is defined in the 1940 Act.
1.16
INTEREST means the entire limited liability company interest (as defined in
the
Delaware Act) in the Fund at any particular time of a Member or other person
to
whom an Interest or portion thereof has been transferred pursuant to this
Agreement, including the rights and obligations of such Member or other person
under this Agreement and the Delaware Act.
1.17
MANAGER means the person who sponsors the Master Fund and at any particular
time
serves as the investment adviser, not a sub-investment adviser, to the Master
Fund pursuant to a written agreement.
1.18
MASTER FUND means the limited liability company governed hereby; as such limited
liability company may from time to time be constituted and/or a master fund
in a
master-feeder structure as set forth in Section 8.10.
1.19
HEDGE FUNDS means unregistered hedge funds and/or registered investment
companies in which the Master Fund may invest, including a type of hedge fund
investing in hedge funds.
19
1.20
INVESTMENT MANAGEMENT AGREEMENT means a separate written agreement between
the
Master Fund and the Manager pursuant to which the Manager performs certain
investment advisory and supervisory services to the Master Fund.
1.21
MANAGEMENT FEE means the fee paid to the Manager out of the Master Fund’s assets
pursuant to an Investment Management Agreement, and indirectly debited against
Members' Accounts.
1.22
MEMBER means any person who shall have been admitted to the Fund as a Member
or
a substitute Member who is admitted to the Fund pursuant to this Agreement,
in
such person's capacity as a Member until the Fund repurchases the entire
Interest of such person as a Member pursuant to Section 4.5 hereof or a
substituted Member or Members are admitted with respect to any such person's
entire Interest as a Member pursuant to Section 4.4 hereof. The Members shall
constitute a single class or group of Members.
1.23
NET ASSET VALUE means the total value of all assets of the Fund as valued
pursuant to Section 7.3, less an amount equal to all accrued debts, liabilities,
and obligations of the Fund, calculated before giving effect to any repurchase
of Units.
1.24
1940 ACT means the Investment Company Act of 1940 and the rules, regulations,
and orders thereunder, as amended from time to time, or any successor law.
1.25
1934 ACT means the Securities Exchange Act of 1934 and the rules, regulations,
and orders thereunder, as amended from time to time, or any successor
law.
1.26
OFFERING PERIOD means the period beginning when the Fund commences the sale
of
Units.
1.27
ORGANIZATIONAL EXPENSES means the expenses, including initial registration
fees
with the SEC, incurred by the Fund in connection with its formation, its initial
registration as an investment company under the 1940 Act, and the initial
offering of Units.
1.28
ORGANIZATIONAL MEMBER means Xxxxxxx X. X’Xxxxxxxxxx and ORGANIZER means Xxxxxx
X. Xxxxx.
1.29
PERSON means any individual, entity, corporation, partnership, association,
limited liability company, joint-stock company, trust, estate, joint venture,
organization, or unincorporated organization.
1.30
PORTFOLIO MANAGERS means portfolio managers of the Hedge Funds in which the
Fund
invests directly or through the Master Fund, among which the Fund or the Master
Fund deploys some or all of its assets. .
1.31
REPURCHASE VALUATION DATE shall have the meaning set forth in Section
4.5.
1.32
SECURITIES means 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, or commodity, all manner of derivative
instruments and any contracts based on any index or group of securities, debt
obligations, currencies, or commodities, and any options thereon.
1.
33 SECURITIES ACT means the Securities Act of 1933, as amended and any
regulations promulgated thereunder.
1.34
SERIES means any series of limited liability company interests established
by
the Board relating to a distinct portfolio and having separate rights and powers
with respect to the assets of the Fund allocated to such Series.
20
1.35
SUB-ADVISER means any investment adviser the Manager employs to perform
sub-investment advisory services pursuant to a written agreement among such
investment adviser, the Manager and/or the Master Fund.
1.36
TAX MATTERS MEMBER means the Member designated as "tax matters Member" of the
Fund pursuant to Section 8.18 hereof.
1.37
TRANSFER means the assignment, transfer, sale, or other disposition of all
or
any portion of an Interest, including any right to receive any allocations
and
distributions attributable to an Interest.
1.38
UNIT means the interest of a Member in the Fund represented by an original
Contribution of $5,000 at the initial Closing of subscriptions for Interests
in
the Fund, and with a net asset value determined from time to time thereafter
as
provided in Section 7.3.
1.39
VALUATION DATE means any date in which the Net Asset Value of the Fund is
computed, as determined by the Board.
ARTICLE
II
ORGANIZATION;
ADMISSION OF MEMBERS; BOARD
2.1
FORMATION OF LIMITED LIABILITY COMPANY. The Organizer and any person designated
by the Board hereby are designated as authorized persons, within the meaning
of
the Delaware Act, to execute, deliver, and file all certificates (and any
amendments and/or restatements thereof) required or permitted by the Delaware
Act to be filed in the office of the Secretary of State of the State of
Delaware. The Board shall cause to be executed and filed with applicable
governmental authorities any other instruments, documents, and certificates
which, 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 which 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 initial name of the Master Fund shall be Rochdale Core Alternative
Strategies Master Fund LLC or such other name as the Board hereafter may adopt
upon: (i) causing an appropriate amendment to the Certificate to be filed in
accordance with the Delaware Act; and (ii) sending notice thereof to each
Member. The Master Fund’s business may be conducted under the name of the Master
Fund or, to the fullest extent permitted by law, any other name or names deemed
advisable by the Board.
2.3
PRINCIPAL AND REGISTERED OFFICE. The Master Fund shall have its principal office
at the principal office of the Manager, or at such other place designated from
time to time by the Board. The Master Fund shall have its registered office
in
the State of Delaware at 0000 Xxxxx XxXxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000,
County of Kent, and its registered agent at such address is STELLAR CORPORATE
SERVICES LLC. for service of process in the State of Delaware, unless a
different registered office or agent is designated from time to time by the
Board in accordance with the Delaware Act.
2.4
DURATION. The term of the Master Fund commenced on the filing of the Certificate
with the Secretary of State of the State of Delaware and shall continue
perpetually unless and until the Master Fund is dissolved pursuant to Section
5.1hereof.
2.5
BUSINESS OF THE MASTER FUND. The business of the Master Fund is, without
limitation, to purchase, sell, invest, and trade in Securities, both directly
and through the purchase of limited partnership and other interests in the
Hedge
Funds and to engage in any financial or derivative transactions relating thereto
or otherwise and to engage in such other activities and to exercise such rights
and powers as permitted by limited liability companies under the Delaware Act.
On behalf of the Master Fund, the officers of the Master Fund may execute,
deliver, and perform all contracts, agreements, 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 the Master Fund’s business and any
amendments to any such contracts, agreements, and other undertakings, all
without any further act, vote, or approval of any other person, notwithstanding
any other provision of this Agreement.
21
2.6
THE BOARD.
(a)
Each Organizational Member shall serve as a Director on the initial Board as
of
October 17, 2006, until the proper designation of those persons first listed
on
Schedule I who shall agree to be bound by all of the terms of this Agreement
to
serve as Directors on the initial Board, which agreement to be bound shall
be
effective as of the date of their acceptance of their appointment as Director.
The Board may, subject to the provisions of paragraphs (a) and (b) of this
Section 2.6 with respect to the number of and vacancies in the position of
Director and the provisions of Section 3.3 hereof with respect to the election
of Directors by Members, designate any person who shall agree to be bound by
all
of the terms of this Agreement as a Director. The names and mailing addresses
of
the Directors shall be set forth in the books and records of the Master Fund.
The number of Directors shall be fixed from time to time by a written instrument
signed by, or by resolution approved at a duly constituted meeting by vote
of, a
majority of the Board, provided however that the number of Directors shall
at
all times be at least one and no more than ten as determined, from time to
time,
by the Directors pursuant to this Agreement.
(b)
Each Director shall serve as a Director for the duration of the term of the
Master Fund, unless his or her status as a Director shall be sooner terminated
pursuant to Section 4.2 hereof. If any vacancy in the position of a Director
occurs, the remaining Directors may appoint a person to serve in such capacity,
provided such appointment is in accordance with the 1940 Act. The Directors
may
call a meeting of Members to fill any vacancy in the position of Director,
and
shall do so when required by the 1940 Act.
(c)
In the event that no Director remains to continue the business of the Master
Fund, the Manager shall promptly call a meeting of the Members, to be held
within 60 days after the date on which the last Director ceased to act in that
capacity, for the purpose of determining whether to continue the business of
the
Master Fund and, if the business shall be continued, of electing the required
number of Directors to the Board. If the Members shall determine at such meeting
not to continue the business of the Master Fund or if the required number of
Directors is not elected within 60 days after the date on which the last
Director ceased to act in that capacity, then the Master Fund shall be dissolved
pursuant to Section 5.1 hereof and the assets of the Master Fund shall be
liquidated and distributed pursuant to Section 5.2 hereof.
2.7
MEMBERS.
(a)
The Board may admit one or more Members at such times as the Board may
determine. Members may be admitted to the Master Fund subject to the condition
that each such Member execute an appropriate signature page of this Agreement,
application, subscription agreement, or without such execution, if such Member
orally, in writing, or by other action, including, but not limited to payment
for Units, complies with the conditions for becoming a Member and pursuant
to
which such Member agrees to be bound by all the terms and provisions hereof.
This Agreement shall not be unenforceable by reason of it not having been signed
by a person being admitted as a Member. The Board, in its sole and absolute
discretion, may reject applications or subscription agreements for Units in
the
Master Fund. The admission of any person as a Member shall be effective upon
the
revision of the books and records of the Master Fund to reflect the name and
the
contribution to the capital of the Master Fund of such additional Member. Such
record of Members shall also set forth the number of Units that each Member
holds. Each Organizational Member hereby is admitted as a Member on the date
hereof.
(b)
If a Member is admitted to the Master Fund prior to the initial Closing, the
Account of such Member shall be adjusted by any Net Profit or Net Loss allocable
to such Member for the period through the initial Closing.
2.8
BOTH DIRECTORS AND MEMBERS. A Member may at the same time be a Director, a
Member, or an Manager, and a Member in which event such Member's rights and
obligations in each capacity shall be determined separately in accordance with
the terms and provisions hereof and as provided in the Delaware Act and the
1940
Act. A Director need not be a Member.
22
2.9
ORGANIZATIONAL MEMBER AND THE ORGANIZER. Xxxxxxx X. X’Xxxxxxxxxx shall be the
Organizational Member of the Master Fund and Xxxxxx X. Xxxxx shall be the
Organizer of the Master Fund.
2.10
LIMITED LIABILITY. To the fullest extent permitted under applicable law, a
Member shall not be liable for the Master Fund’s debts, obligations, or
liabilities in any amount in excess of the Account balance of such Member.
To
the fullest extent permitted under applicable law, the Organizer of the Master
Fund, the Manager and Directors shall not be liable for the Master Fund’s debts,
obligations, and liabilities.
2.11
SERIES AND CLASSES. The Master Fund may create one or more Series and/or classes
from time to time. With respect to any Series established by the Master Fund,
the following provisions shall apply:
(a)
separate and distinct records shall be maintained for each Series, and the
assets associated with any such Series shall be held and accounted for
separately from the other assets of the Master Fund or any other
Series;
(b)
the debts, liabilities, and obligations incurred, contracted for, or otherwise
existing with respect to a particular Series shall be enforceable against the
assets of such Series only, and not against the assets of the Master Fund
generally or any other Series;
(c)
the Board, in its sole and absolute discretion, shall have authority to restrict
allocations or transfers of Member Accounts to or from any Series;
(d)
notwithstanding Section 18-215 of the Delaware Act, the failure of a Series
to
have any Member associated with it shall not be the basis for the dissolution
of
the Series and the winding up of its affairs unless in accordance with the
provisions of Article VI; and
(e)the
Board shall have the full power and authority, without Member approval, to
authorize one or more Classes of Units; Units 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
applicable law.
ARTICLE
III
MANAGEMENT
3.1
MANAGEMENT AND CONTROL.
(a)
Management and control of the business of the Master Fund shall be vested in
the
Board, which shall have the right, power, and authority, on behalf of the Master
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 Master Fund and its duties
hereunder. No Director shall have the authority individually to act on behalf
of
or to bind the Master Fund except within the scope of such Director's authority
as delegated by the Board. The parties hereto intend that, except to the extent
otherwise expressly provided herein: (i) each Director shall be vested with
the
same powers, authority, and responsibilities on behalf of the Master Fund as
are
customarily vested in each director of a Delaware corporation; and (ii) each
Independent Director shall be vested with the same powers, authority, and
responsibilities on behalf of the Master 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 corporation who is not an "interested
person" of such company as such term is defined in the 1940 Act. During any
period in which the Master Fund shall have no Directors, the Manager shall
continue to serve as the adviser to the Master Fund. The Directors may make
contributions and own Units in the Master Fund.
(b)
Each Member agrees not to treat, on his personal income tax return or in any
claim for a tax refund, any item of income, gain, loss, deduction, or credit
in
a manner inconsistent with the treatment of such item by the Master Fund. The
Board shall have the exclusive authority and discretion to make any elections
required or permitted to be made by the Master Fund under any provisions of
the
Code or any other revenue laws.
23
(c)
Members shall have no right to participate in and shall take no part in the
management or control of the Master Fund’s business, except to the extent
specifically provided herein, and shall have no right, power, or authority
to
act for or bind the Master 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.
(d)
The Board may delegate to any person, including officers of the Master Fund,
any
rights, power, and authority vested by this Agreement in the Board to the extent
permissible under applicable law.
3.2
ACTIONS BY THE BOARD.
(a)
Unless provided otherwise in this Agreement, the Board shall act only: (i)
by
the affirmative vote of a majority of the Directors (which majority shall
include any requisite number of Independent Directors required by the 0000
Xxx)
present at a meeting duly called at which a quorum of the Directors shall be
present (in person, which may include any means of communication that allows
all
Directors participating to hear each other simultaneously during the meeting,
as
permitted by the SEC and/or the 1940 Act, or, if in person attendance is not
required by the 1940 Act, in person or by telephone); or (ii) by unanimous
written consent of all of the Directors without a meeting, if permissible under
the 1940 Act.
(b)
The Board may designate from time to time a Chairperson who shall preside at
all
meetings. Meetings of the Board may be called by the Chairperson or any two
Directors, and may be held on such date and at such time and place, as the
Board
shall determine. Each Director 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. Notice need not be given to any Director 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. Directors may attend and participate in
any
meeting by telephone, except where in person attendance at a meeting is required
by the 1940 Act. A majority of the Directors then in office shall constitute
a
quorum at any meeting.
(c)
The Board may designate from time to time agents and employees of the Master
Fund , including without limitation employees of the Manager, who shall have
the
same powers and duties on behalf of the Master Fund (including the power to
bind
the Master Fund ) as are customarily vested in officers of a Delaware
corporation, and designate them as officers of the Master Fund.
3.3
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 Members holding a majority of the total number
of
votes eligible to be cast by all Members, and may be held at such time, date,
and place as the Board shall determine. The Board 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
within a reasonable time 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. 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 a majority of
the
total number of votes eligible to be cast by all Members 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 action of a majority of the Members 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 Directors; 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.
(b)
Each Member shall be entitled to cast at any meeting of Members a number of
votes equivalent to such Member's Master Fund Percentage as of the record date
for such meeting. The Board shall establish a record date not less than 10
nor
more than 60 days prior to the date of any meeting of Members to determine
eligibility to vote at such meeting and the number of votes which each Member
will be entitled to cast thereat, 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.
24
(c)
A Member may vote at any meeting of Members by a proxy properly executed in
writing by the Member and filed with the Master Fund before or at the time
of
the meeting. 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 Master 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 holding a majority of the total number of votes eligible
to be
cast or such greater percentage as may be required in order to approve such
action.
3.4
CUSTODY OF ASSETS OF the Master Fund. The physical possession of all funds,
Securities, or other property of the Master Fund shall at all times, be held,
controlled, and administered by one or more custodians retained by the Master
Fund in accordance with the requirements of the 1940 Act.
3.5
OTHER ACTIVITIES OF MEMBERS AND DIRECTORS.
(a)
The Directors shall not be required to devote full time to the affairs of the
Master Fund, but shall devote such time as may reasonably be required to perform
their obligations under this Agreement.
(b)
Any Member, Director, or Affiliate of the foregoing 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,
acquisition and disposition of Securities, provision of investment advisory
or
brokerage services, serving as directors, officers, employees, advisers, or
agents of other companies, partners of any partnership, Members of any limited
liability company, or trustees of any trust, or entering into any other
commercial arrangements. No Member shall have any rights in or to such
activities of any other Member or Director, or any profits derived
therefrom.
3.6
DUTY OF CARE.
(a)
A Director shall not be liable to the Master Fund or to any of its Members
for
any loss or damage occasioned by any act or omission in the performance of
the
Director's services under this Agreement, unless it shall be determined by
final
judicial decision in a court of competent jurisdiction on the merits from which
there is no further right to appeal that such loss is due to an act or omission
of such person constituting willful misfeasance, bad faith, gross negligence,
or
reckless disregard of the duties involved in the conduct of such Director's
office or as otherwise required by law.
(b)
A Member not in breach of any obligation hereunder or under any agreement
pursuant to which the Member subscribed for Units shall be liable to the Master
Fund , any other Member, or third parties only as required by the Delaware
Act
or otherwise provided in this Agreement.
3.7
INDEMNIFICATION.
(a)
To the fullest extent permitted by law, the Master Fund shall, subject to
Section 3.7(b) hereof, indemnify the Organizer, each Director (including for
this purpose their executors, heirs, assigns, successors, or other legal
representatives), the Manager, and Tax Matters Member (including for this
purpose each affiliate, Share holder, partner, Member, officer, director,
principal, employee, or agent of the Manager, and the Tax Matters Member) and
the executors, heirs, assigns, successors, or other legal representatives of
each of the foregoing, and of any person who controls or is under common
control, or otherwise affiliated, with the Manager, or the Tax Matters Member
(and their executors, heirs, assigns, successors, or other legal
representatives) 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 the Organizer, a Director,
Manager, or the Tax Matters Member, as the case may be, of the Master Fund
or
the past or present performance of services to the Master 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 office. The rights of indemnification provided under this Section
3.7 shall not be construed so as to provide for indemnification of an indemnitee
for any liability (including liability under federal securities laws which,
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 3.7 to the fullest extent permitted by
law.
25
(b)
Expenses, including reasonable counsel fees, so incurred by any such indemnitee
(but excluding amounts paid in satisfaction of judgments, in compromise, or
as
fines or penalties), may be paid from time to time by the Master 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 indemnitee to repay
to
the Master Fund amounts so paid if it shall ultimately be determined that
indemnification of such expenses is not authorized under Section 3.7(a) hereof;
provided, however, that: (i) such indemnitee shall provide security for such
undertaking, (ii) the Master Fund shall be insured by or on behalf of such
indemnitee against losses arising by reason of such indemnitee's failure to
fulfill his or its undertaking; or (iii) a majority of the Directors (excluding
any Director who is seeking advancement of expenses hereunder or is or has
been
a party to any 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 indemnitee 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 of competent jurisdiction,
or by any other body before which the proceeding shall have been brought, that
an indemnitee is liable to the Master 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 office, indemnification shall
be
provided pursuant to Section 3.7(a) hereof if: (i) approved as in the best
interests of the Master Fund by vote of a majority of the Directors (excluding
any Director who is seeking indemnification hereunder or is or has been a party
to any 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) 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 Master Fund and that such indemnitee
is not liable to the Master 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 office; or (ii) the Directors
secure 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 indemnitee acted in good faith and in the reasonable belief that
such
actions were in the best interests of the Master Fund and that such indemnitee
is not liable to the Master 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 office.
(d)
Any indemnification or advancement of expenses made pursuant to this Section
3.7
shall not prevent the recovery from any indemnitee of any such amount if such
indemnitee subsequently shall be determined in a final decision on the merits
in
a court of competent jurisdiction 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 Master 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
office. In any suit brought by an indemnitee to enforce a right to
indemnification under this Section 3.7 it shall be a defense that, and in any
suit in the name of the Master Fund to recover any indemnification or
advancement of expenses made pursuant to this Section 3.7 the Master Fund shall
be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in this
Section 3.7. 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 3.7, the burden of proving that the indemnitee is not entitled to be
indemnified, or to any indemnification or advancement of expenses, under this
Section 3.7 shall be on the Master Fund (or any Member acting derivatively
or
otherwise on behalf of the Master Fund or its Members).
26
(e)
An indemnitee may not satisfy any right of indemnification or advancement of
expenses granted in this Section 3.7 as to which he, she, or it may otherwise
be
entitled except out of the assets of the Master 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 3.7 shall affect the
power of the Master Fund to purchase and maintain liability insurance on behalf
of any Director or other person.
3.8
FEES, EXPENSES, AND REIMBURSEMENT.
(a)
So long as the Manager and/or the Sub-Adviser (or each entity’s affiliates)
provides management services to the Master Fund, it shall be entitled to receive
fees for such services as may be agreed to by the Manager, the Sub-Adviser
and
the Master Fund pursuant to an Investment Management Agreement and/or
Sub-Investment Management Agreement, provided however, the Board has approved
such agreement and fees. The Management Fee will be computed based on the
Account of each Member as of the end of business on the last business day of
each month, after adjustment for any subscriptions effective on such date and
before giving effect to any repurchase of Units effective as of such date.
The
Manager and/or Sub-Adviser may waive or reduce the Management and/or Incentive
Fee calculated with respect to, and deducted from, the Account of any Member
and
may pay all or part of the Management Fee to third parties for services rendered
in connection with the placement of Units.
(b)
The Board may cause the Master Fund to compensate each Independent Director
for
his or her services hereunder. In addition, the Master Fund shall reimburse
the
Directors for reasonable out-of-pocket expenses incurred by them in performing
their duties under this Agreement.
(c)
The Master Fund shall bear all of its own operating expenses incurred in the
business of the Master Fund other than those specifically required to be borne
by the Manager or another party pursuant to a separate written agreement with
the Master Fund as contemplated by Section 3.8(a) hereof. Expenses to be borne
by the Master Fund include, but are not limited to, the following:
|
(1)
|
all
costs and expenses related to portfolio transactions and positions
for the
Master Fund’s account, including, but not limited to, brokerage
commissions, research fees, interest and commitment fees on loans
and
debit balances, borrowing charges on Securities sold short, dividends
on
Securities sold short but not yet purchased, custodial fees, margin
fees,
transfer taxes and premiums, and taxes withheld on foreign dividends
and
indirect expenses from investments in Hedge Master Funds;
|
|
(2)
|
all
costs and expenses associated with the organization, operation, and
registration of the Master Fund, offering costs, and the costs of
compliance with any applicable Federal or state laws;
|
|
(3)
|
the
costs and expenses of holding meetings of the Board and any meetings
of
Members that are regularly scheduled, permitted, or are required
to be
held by this Agreement, the 1940 Act, or other applicable law;
|
|
(4)
|
fees
and disbursements of any attorneys, accountants (including tax preparation
fees), auditors, and other consultants and professionals engaged
on behalf
of the Master Fund to assist in connection with its operations;
|
27
|
(5)
|
the
costs of a fidelity bond and any liability insurance obtained on
behalf of
the Master Fund, the Manager, or the Directors;
|
|
(6)
|
any
fees payable to the Manager;
|
|
(7)
|
all
costs and expenses associated with the organization of any subsidiary
vehicle deemed necessary for the investment operations of the Master
Fund
, or with the operation of the Master Fund as a master-feeder structure
as
contemplated by Section 7.10 hereof;
|
|
(8)
|
all
costs and expenses of preparing, printing, and distributing reports
and
other communications to Members;
|
|
(9)
|
the
fees of custodians, transfer agents, and other persons providing
administrative services to the Master Fund;
|
|
(10)
|
all
expenses in computing the net asset value of the Master Fund and
the
Units, including any equipment or services obtained for such
purposes;
|
|
(11)
|
administrative
and Member service fees incurred by the Master Fund will be allocated
among its various classes based on the net asset value of the Master
Fund
attributable to each such class; and
|
|
(12)
|
such
other types of expenses as may be approved from time to time by the
Board.
|
The
Manager shall be entitled to reimbursement from the Master Fund for any of
the
above expenses that it pays on behalf of the Master Fund.
(d)
Subject to procuring any required regulatory approvals, the Master Fund from
time to time, alone or in conjunction with other accounts for which the Manager,
or any Affiliate of the Manager, acts as general partner, managing member,
or
investment adviser, may purchase insurance in such amounts, from such insurers
and on such terms as the Board shall determine.
ARTICLE
IV
TERMINATION
OF STATUS OF MANAGER AND DIRECTORS;
TRANSFERS,
REPURCHASES, AND REDEMPTIONS
4.1
TERMINATION OF STATUS OF THE MANAGER. The status of the Manager shall terminate
if the Investment Management Agreement with the Manager terminates and the
Master Fund does not enter into a new Investment Management Agreement with
the
Manager pursuant to the ADVISERS ACT and 1940 Act...
4.2
TERMINATION OF STATUS OF A DIRECTOR. The status of a Director shall terminate
if
the Director: (i) shall die; (ii) shall be adjudicated incompetent; (iii) shall
voluntarily withdraw as a Director (upon not less than 90 days' prior written
notice to the other Directors, unless the other Directors waive such notice);
(iv) shall be removed; (v) shall be certified by a physician to be mentally
or
physically unable to perform his or her duties hereunder; (vi) 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; or (vii) shall have a receiver appointed to administer the
property or affairs of such Director.
4.3
REMOVAL OF THE DIRECTORS. Any Director may be removed by: (i) the vote or
written consent of at least two-thirds (2/3) of the Directors not subject to
the
removal or vote; or (ii) the vote or written consent of Member holding not
less
than two-thirds (2/3) of the total number of votes eligible to be cast by all
Members.
28
4.4
TRANSFER OF UNITS OF MEMBER.
(a)
Units held by a Member may be transferred only: (i) by operation of law pursuant
to the death, divorce, bankruptcy, insolvency, or dissolution of such Member;
or
(ii) under extremely limited circumstances, with the written consent of the
Board (which may be withheld for any reason in its sole and absolute
discretion). If any transferee does not meet such investor eligibility
requirements, the Master Fund reserves the right to redeem its Units. If the
Board does not consent to a transfer by operation of law, the Master Fund shall
redeem the Units from the Member's successor. Any transfer must comply with
the
Securities Act. The Board generally will not consent to a transfer unless the
transfer is: (i) one in which the tax basis of the Units in the hands of the
transferee is determined, in whole or in part, by reference to its tax basis
in
the hands of the transferring Member (e.g., certain gifts and contributions
to
family entities); or (ii) to members of the transferring Member's immediate
family (siblings, spouse, parents, and children). The foregoing permitted
transferees will not be allowed to become substituted Member without the consent
of the Board, which may be withheld in its sole and absolute discretion. Each
transferring Member and transferee agrees to pay all expenses, including, but
not limited, to attorneys' and accountants' fees, incurred by the Master Fund
in
connection with any transfer.
(b)
By subscribing for Units, each Member agrees to indemnify and hold harmless
the
Master Fund , the Board, the Manager, or 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 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 any transfer
made by that Member in violation of this Section 4.4 or any misrepresentation
made by that Member in connection with any such transfer.
(c)
Each transferring Member shall indemnify and hold harmless the Master Fund
, the
Board, the Manager, or 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 4.4; and (ii) any misrepresentation by
such
Member in connection with any such transfer.
4.5
REPURCHASE OF UNITS.
(a)
General. Except as otherwise provided in this Agreement, no Member or other
person holding Units or portion thereof shall have the right to require the
Master Fund to redeem its Units. The Board of the Master Fund, from time to
time, and in its sole and absolute discretion, may determine to cause the Master
Fund to offer to repurchase Units from Members, including the Manager, on such
terms and conditions as set forth in this Agreement. However, the Master Fund
shall not offer to repurchase Units on more than four occasions during any
one
Fiscal Year unless it has been advised by counsel to the Master Fund to the
effect that more frequent offers would not cause any adverse tax consequences
to
the Master Fund or its Members. In accordance with the terms and conditions
as
are set forth in this Agreement, in determining whether to cause the Master
Fund
to repurchase Units pursuant to written requests by Members, the Board shall
consider, among other things, the recommendation of the Manager and shall also
consider the following factors, among others, in making such determination:
|
(1)
|
whether
any Members have requested that the Master Fund repurchases their
Units;
|
|
(2)
|
the
liquidity of the Master Fund’s assets;
|
|
(3)
|
the
investment plans and working capital requirements of the Master Fund;
|
|
(4)
|
the
relative economies of scale with respect to the size of the Master
Fund;
|
|
(5)
|
the
history of the Master Fund in repurchasing Units;
|
|
(6)
|
the
economic condition of the securities markets; or
|
|
(7)
|
the
anticipated tax consequences of any proposed repurchases of Units.
|
29
(b)
Discretionary Repurchases. The Board shall cause the Master Fund to repurchase
Units on terms fair to the Master Fund and to all Members or one or more classes
of Members (including persons holding Units acquired from Members), as
applicable, in the following manner:
(1)
The Board will provide written notice to Members when it has determined, in
its
sole and absolute discretion that the Master Fund will repurchase Units. Such
notice will describe the terms of the repurchase offer, including:
|
(i)
the commencement date of the repurchase offer;
|
|
(ii)
the date on which repurchase requests must be received by the Master
Fund
(the "Repurchase Request Deadline"); and
|
|
(iii)
other information that Members should consider in deciding whether
and how
to participate in such repurchase opportunity.
|
(2)
Members must submit, in writing, requests for repurchase to the Master Fund
or
its designated agent. The Repurchase Request Deadline will be a date set by
the
Board occurring no sooner than 20 business days after the commencement date
of
the repurchase offer and such Repurchase Request Deadline may be extended by
the
Board in its sole and absolute discretion. The Master Fund will not accept
any
repurchase request received by it or its designated agent after the Repurchase
Request Deadline.
(3)
Promptly after the Repurchase Request Deadline, the Master Fund will give to
each Member whose Units have been accepted for repurchase a payment consisting
of: (i) cash or a Promissory Note entitling the Member to be paid an amount
equal to such percentage of the estimated value of the repurchased Units as
may
be determined by the Master Fund Board as of the Repurchase Valuation Date
(the
“Initial Payment”); and, if determined to be appropriate by the Master Fund
Board or if the Initial Payment is less than 100% of the “estimated value of the
repurchased Units”, (ii) a Promissory Note based upon the results of the annual
audit of Master Fund’s financial statements, i.e. the “Post-Audit Payment” as
set forth below.
(4)
The Initial Payment may be in cash and equal to an amount up to 100% of
the estimated value of the repurchased Units, and shall be determined as of
the
effective date of the repurchase (the “Repurchase Valuation Date”) when the
“estimated value of the repurchased Units” is determined to equal the value of
the Member’s Account or portion thereof based on the net asset value of the
Master Fund’s assets after giving effect to all allocations to be made to the
Member’s Account as of such date. The Repurchase Valuation Date is the last
business day of the quarter in which the Repurchase Request Deadline occurs,
which shall be approximately 65 days after the Repurchase Request Deadline.
Initial Payment amounts generally shall be calculated within 10 business days
after the Repurchase Valuation Date in accordance with the Master Fund’s
valuation procedures as adopted by the Master Fund’s Board. The Initial Payment
will be made as of the later of (1) a date approximately, but no earlier than,
30 days after the Repurchase Valuation Date, or (2) if the Master Fund has
requested withdrawals of its capital from any Hedge Funds in order to fund
the
repurchase of interests in the Master Fund, within ten business days after
the
Master Fund has received at least 90% of the aggregate amount withdrawn from
such Hedge Funds.
(5)
In the event that it is determined to be appropriate by the Master Fund Board
or
if the Initial Payment is less than 100% of the estimated value of the
repurchased Units, the second and final payment in respect of the Promissory
Note (the “Post- Audit Payment”) will be in an amount equal to the excess, if
any, of (1) the value of the repurchased Units, determined as of the Repurchase
Valuation Date and based upon the results of the annual audit of the Master
Fund’s financial statements for the year in which the Repurchase Valuation Date
occurs, over (2) the Initial Payment. The Manager anticipates that the annual
audit of the Master Fund’s financial statements will be completed within 60 days
after the end of each Fiscal Year and that the Post-Audit Payment will be made
promptly after the completion of the audit.
30
(6)
The Promissory Note shall be non-interest bearing and
non-transferable.
(7)
Payment for Units accepted by the Master Fund for repurchase will be made in
whole or in part in cash or securities of equivalent value.
(8)
The Master Fund may suspend or postpone any repurchase offer, by vote of a
majority of the Board, including a majority of the Independent Directors,
including but not limited to:
|
(i)
for any period during which an emergency exists as a result of which
it is
not reasonably practicable for the Master Fund to dispose of securities
it
owns or to determine the value of the Master Fund 's nets assets;
|
|
(ii)
for any other periods that the SEC permits by order for the protection
of
Members; or
|
|
(iii)
under such other unusual circumstances as the Board deems advisable
for
the benefit of the Master Fund and its Members.
|
(9)
The Board, in its sole and absolute discretion, shall determine the amount
of
Units to be repurchased, if any. If a greater number of Units is submitted
for
repurchase by Members as of the Repurchase Request Deadline than the repurchase
offer amount, as determined by the Board in its sole and absolute discretion,
the Master Fund may repurchase an additional amount of Units not to exceed
2% of
the Units outstanding on the Repurchase Request Deadline. If the Board
determines not to repurchase more than the repurchase offer amount or if Members
submit for repurchase Units in an amount exceeding the repurchase offer amount
plus 2% of the Units outstanding on the Repurchase Request Deadline, the Master
Fund shall repurchase the Units submitted for repurchase on a pro rata basis,
disregarding fractions, according to the number of Units submitted for
repurchase by each Member as of the Repurchase Request Deadline; provided,
however, that this provision shall not prohibit the Master Fund from:
|
(i)
accepting all Units submitted for repurchase by Members who own,
beneficially or of record, an aggregate of not more than a specified
percentage of such Units and who submit for repurchase all their
Units,
before prorating Units submitted for repurchase by other Members;
or
|
|
(ii)
accepting by lot Units submitted for repurchase by Members who offer
all
Units held by them or who, when submitting for repurchase their Units,
elect to have either all or none or at least a minimum amount or
none
accepted, if the Master Fund first accepts all Units submitted for
repurchase by Members who do not so elect.
|
(10)
The Board may, in its sole and absolute discretion, elect to impose charges
on
Members or other persons who submit their Units for repurchase. Pursuant to
this
discretion, the Board has imposed a penalty fee of 1% of the net asset value
of
Units repurchased within one year of their initial purchase. The Board may
also,
in its sole and absolute discretion, allocate to tendering Members withdrawal
or
similar charges imposed by Hedge Funds if the Master Fund has requested
withdrawal of its capital from any Hedge Funds in order to fund the repurchase
of Units and such charges were imposed on the Master Fund.
(11)
A Member who submits for repurchase only a portion of such Member's Units shall
be required to maintain an Account balance at least equal to $25,000.
(12)
The Manager may submit for repurchase its Units as a Member under Section 4.5
hereof.
(c)
Mandatory Redemptions. The Board may cause the Master Fund to redeem Units
of a
Member or any person acquiring Units thereof from or through a Member in the
event that the Board determines or has reason to believe that, among other
things:
|
(1)
such Units have been transferred or such Units have vested in any
person
by operation of law as a result of the death, dissolution, bankruptcy,
or
incompetence of a Member;
|
|
(2)
ownership of such Share by a Member or other person will cause the
Master
Fund to be in violation of, or require registration of any Units,
or
subject the Master Fund or the Manager to additional registration
or
regulation under, the securities, commodities, or other laws of the
United
States or any other relevant jurisdiction;
|
31
|
(3)
continued ownership of such Units may be harmful or injurious to
the
business or reputation of the Master Fund or the Manager, or may
subject
the Master Fund or any of its Members to an undue risk of adverse
tax or
other fiscal consequences;
|
|
(4)
any representation or warranty made by a Member in connection with
the
acquisition of Units was not true when made or has ceased to be true;
or
|
|
(5)
it would be in the best interests of the Master Fund, as determined
by the
Board in its sole and absolute discretion, for the Master Fund to
redeem
such Units.
|
ARTICLE
V
CAPITAL
5.1
CONTRIBUTIONS TO CAPITAL
(a)
The minimum initial contribution of each Member to the capital of the Master
Fund shall be such amount as the Board, in its discretion, may determine from
time to time. The amount of the initial contribution of each Member shall be
recorded on the books and records of the Master Fund upon acceptance as a
contribution to the capital of the Master Fund. The Directors shall not be
entitled to make contributions of capital to the Master Fund as Directors of
the
Master Fund, but may make contributions to the capital of the Master Fund as
Members.
(b)
Members may make additional contributions to the capital of the Master Fund
effective as of such times as the Board, in its discretion, may permit, subject
to Section 2.7 hereof, but no Member shall be obligated to make any additional
contribution to the capital of the Master Fund. The minimum initial capital
contribution of a Member to the capital of the Master Fund shall be such amount
as the Board, in its sole discretion, may determine from time to
time.
(c)
Initial and any additional contributions to the capital of the Master Fund
by
any Member shall be payable in cash, payable in readily available funds at the
date of the proposed acceptance of the contribution.
5.2
RIGHTS OF MEMBERS TO CAPITAL
No
Member shall be entitled to interest on any contribution to the capital of
the
Master Fund, nor shall any Member be entitled to the return of any capital
of
the Master Fund except as otherwise specifically provided herein, for example:
(i) upon the repurchase by the Master Fund of a part or all of such Member's
Units pursuant to Section 4.5 hereof, (ii) pursuant to the provisions of Section
5.7 hereof or (iii) upon the liquidation of the Master Fund's assets pursuant
to
Section 6.2 hereof. No Member shall be liable for the return of any such
amounts. No Member shall have the right to require partition of the Master
Fund’s property or to compel any sale or appraisal of the Master Fund's
assets.
5.3
CAPITAL ACCOUNTS
(a)
The Master Fund shall maintain a separate Capital Account for each Member.
The
aggregate Net Asset Value of each Member’s Units shall reflect the value of such
Member's Capital Account.
(b)
Each Member’s Capital Account shall have an initial balance equal to the amount
of cash constituting such Member's initial contribution to the capital of the
Master Fund.
(c)
Each Member's Capital Account shall be increased by the sum of (i) the amount
of
cash constituting additional contributions by such Member to the capital of
the
Master Fund permitted pursuant to Section 5.1 hereof, plus (ii) all amounts
credited to such Member's Capital Account pursuant to Sections 5.4 and 5.5
hereof.
32
(d)
Each Member's Capital Account shall be reduced by the sum of (i) the amount
of
any repurchase of the Units of such Member or distributions to such Member
pursuant to Sections 4.5, 5.7 or 6.2 hereof which are not reinvested (net of
any
liabilities secured by any asset distributed that such Member is deemed to
assume or take subject to under Section 752 of the Code), plus (ii) any amounts
debited against such Capital Account pursuant to Sections 5.4 and 5.5
hereof.
5.4
ALLOCATION OF NET PROFIT AND NET LOSS; ALLOCATION OF OFFERING COSTS
As
of the last day of each Fiscal Period, any Net Profit or Net Loss for the Fiscal
Period, and any offering costs required by applicable accounting principles
to
be charged to capital that are paid or accrued during the Fiscal Period shall
be
allocated among and credited to or debited against the Capital Accounts of
the
Members in accordance with their respective Unit ownership for such Fiscal
Period.
5.5
RESERVES
Appropriate
reserves may be created, accrued, and charged against Net Assets for contingent
liabilities, if any, as of the date any such contingent liability becomes known
to the Board, such reserves to be in the amounts that the Board, in its sole
discretion, deems necessary or appropriate. The Board may increase or reduce
any
such reserves from time to time by such amounts as the Board, in its sole
discretion, deems necessary or appropriate.
5.6
TAX ALLOCATIONS
For
each fiscal year, items of income, deduction, gain, loss, or credit shall be
allocated for income tax purposes among the Members in such manner as to reflect
equitably amounts credited or debited to each Member's Capital Account for
the
current and prior fiscal years (or relevant portions thereof). Allocations
under
this Section 5.6 shall be made pursuant to the principles of Sections 704(b)
and
704(c) of the Code, and in conformity with Regulations Sections
1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and 1.704-3(e) promulgated
thereunder, as applicable, or the successor provisions to such Sections and
Regulations. Notwithstanding anything to the contrary in this Agreement, there
shall be allocated to the Members such gains or income as shall be necessary
to
satisfy the "qualified income offset" requirement of Treasury Regulation Section
1.704-1(b) (2) (ii) (d).
Notwithstanding
the preceding paragraph, in the event that the Master Fund repurchases a
Member's Units, the Board may, in its sole discretion, specially allocate items
of Master Fund income and gain to that Member for tax purposes to reduce the
amount, if any, by which that Member's repurchase price exceeds that Member's
tax basis for its Master Fund Units.
5.7
DISTRIBUTIONS
The
Board, in its sole discretion, may authorize the Master Fund to make
distributions in cash or in kind at any time to all of the Members on a pro
rata
basis in accordance with the Members' Unit ownership.
5.8
WITHHOLDING
(a)
The Board may withhold and pay over to the Internal Revenue Service (or any
other relevant taxing authority) taxes from any distribution to any Member
to
the extent required by the Code or any other applicable law.
(b)
For purposes of this Agreement, any taxes so withheld by the Master Fund with
respect to any amount distributed by the Master Fund to any Member shall be
deemed to be a distribution or payment to such Member, reducing the amount
otherwise distributable to such Member pursuant to this Agreement and reducing
the Capital Account of such Member. If the amount of such taxes is greater
than
any such distributable amounts, then such Member and any successor to such
Member's Units shall pay to the Master Fund as a contribution to the capital
of
the Master Fund, upon demand of the Board, the amount of such
excess.
33
(c)
The Board shall not be obligated to apply for or obtain a reduction of or
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, the Member shall furnish the Board
with such information and forms as such Member may be required to complete
where
necessary 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 Master Fund and each of the 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.
5.9
ALLOCATION OF ORGANIZATIONAL, OFFERING, AND CERTAIN OTHER EXPENSES.
Organizational
Expenses and any other expenses in connection with offering Units of the Master
Fund and/or any expenses related to or in connection with any transfer of Units
and/or repurchasing Units pursuant to Section 4.5, shall generally be treated
as
expenses of the Master Fund included in the computation of Net Profit and/or
Net
Loss (except to the extent that the Manager or another party determines in
its
discretion that it will assume, reimburse, and/or waive such expense). The
Board
may alternatively choose to amortize such expenses over a period of time to
be
determined by the Board. The Board may also allocate organizational and offering
expenses (on an Expense Allocation Date or on such other date chosen by the
Board) among the Members in a manner that allocates such expenses to Members
purchasing Units in one or more offerings of Units. The Board may also allocate
expenses of any transfer of Units to either the transferor and/or transferee
and
expenses of any repurchase of Units may be allocated to the Members whose Units
are repurchased.
ARTICLE
VI
DISSOLUTION
AND LIQUIDATION
6.1
DISSOLUTION.
(a)
The Master Fund shall be dissolved at any time there are no Members, unless
the
Master Fund is continued in accordance with the Delaware Act, or upon the
occurrence of any of the following events:
|
(1)
upon the affirmative vote to dissolve the Master Fund by: (i) the
Board;
or (ii) Members holding at least two-thirds (2/3) of the total number
of
votes eligible to be cast by all Members;
|
|
(2)
upon the failure of Members to elect a successor Board Member at
a meeting
called by the Manager in accordance with this Agreement when no Board
member remains to continue the business of the Master Fund ;
|
|
(3)
if any Member that has submitted a written request, in accordance
with the
terms of the Operating Agreement, to tender all of such Member's
Units for
repurchase by the Master Fund has not been given the opportunity
to so
tender within a period of two years after the request (whether in
a single
repurchase offer or multiple consecutive offers within the two-year
period), provided, however, that a Member who intends to cause the
Master
Fund to be dissolved must so indicate in a separate written request
submitted within the applicable two-year period; or
|
|
(4)
as required by operation of law.
|
Dissolution
of the Master Fund shall be effective on the day on which the event giving
rise
to the dissolution shall occur or the conclusion of any applicable 60 day period
during which the Board and Members may elect to continue the business of the
Master Fund as provided herein, but the Master Fund shall not terminate until
the assets of the Master Fund have been liquidated in accordance with Section
6.2 hereof and the Certificate has been canceled.
34
6.2
LIQUIDATION OF ASSETS.
(a)
Upon the dissolution of the Master Fund as provided in Section 6.1 hereof,
the
Board, acting directly or through a liquidator it selects, shall promptly
liquidate the business and administrative affairs of the Master Fund , except
that if the Board is unable to perform this function, a liquidator elected
by
Members holding a majority of the total number of votes eligible to be cast
by
all Members shall promptly liquidate the business and administrative affairs
of
the Master Fund. The proceeds from liquidation (after establishment of
appropriate reserves for contingencies in such amount as the Board or liquidator
shall deem appropriate in its sole and absolute discretion as applicable) shall,
subject to the Delaware Act, be distributed in the following manner:
|
(1)
in satisfaction (whether by payment or the making of reasonable provision
for payment thereof) of the debts and liabilities of the Master Fund,
including the expenses of liquidation (including legal and accounting
expenses incurred in connection therewith), but not including debt
and
liabilities to Members, up to and including the date that distribution
of
the Master Fund’s assets to the Members has been completed, shall first be
paid on a pro rata basis;
|
|
(2)
such debts, liabilities, or obligations as are owing to the Members
shall
be paid next in their order of seniority and on a pro rata basis;
and
|
|
(3)
the Members shall be paid next on a pro rata basis the positive balances
of their respective Capital Accounts after giving effect to all
allocations to be made to such Members' Capital Accounts for the
Fiscal
Period ending on the date of the distributions under this Section
6.2(a)(3).
|
(b)
Anything in this Section 6.2 to the contrary notwithstanding, but subject to
the
priorities set forth in Section 6.2(a) above, upon dissolution of the Master
Fund , the Board or other liquidator may distribute ratably in kind any assets
of the Master Fund ; provided, however, that if any in-kind distribution is
to
be made: (i) the assets distributed in kind shall be valued pursuant to Section
6.3 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; and (ii)
any
profit or loss attributable to property distributed in-kind shall be included
in
the Net Profit or Net Loss for the Fiscal Period ending on the date of such
distribution.
ARTICLE
VII
ACCOUNTING,
VALUATIONS, AND BOOKS AND RECORDS
7.1
ACCOUNTING, REPORTS AND PRINCIPLES.
(a)
The Master 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 Master Fund. The Master Fund’s accounts shall be maintained in
U.S. currency.
(b)
After the end of each taxable year, the Master Fund shall furnish to each Member
such information regarding the operation of the Master Fund and such Member's
Interest as is necessary for Members to complete Federal and state 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 Master
Fund
shall furnish to each Member a semi-annual report containing the information
required by the 1940 Act and an annual report containing the information
required by the 1940 Act. The Master 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 Master Fund may
also furnish to each Member such other periodic reports, as it deems necessary
or appropriate in its discretion.
35
(d)
The Master Fund is a closed-end management investment company registered under
the 1940 Act and it intends to be treated as a partnership for Federal income
tax purposes under the Code. Therefore, the Board shall be guided: (1) by the
applicable recommendations and standards for financial statements, accounting
and reporting relating to such a company contained in the current audit and
accounting guide that is incorporated herein by reference and entitled “Audits
of Investment Companies”, as changed and published from time to time, by the
American Institute of Certified Public Accountants; and (2) by the Master Fund’s
independent public accountants.
7.2
DETERMINATIONS BY THE BOARD.
(a)
All matters concerning the determination and allocation among the Members of
the
amounts to be determined and allocated pursuant to this Agreement, including
any
taxes thereon and accounting procedures applicable thereto, shall be determined
by the Board (either directly or by the Manager pursuant to delegated authority)
unless specifically and expressly otherwise provided for by the provisions
of
this Agreement or as required by law, and such determinations and allocations
shall be final and binding on all the Members.
(b)
The Board may make such adjustments to the computation of Net Profit or Net
Loss
or any components (withholding any items of income, gain, loss, or deduction)
comprising any of the foregoing as it considers appropriate to reflect fairly
and accurately the financial results of the Master Fund and the intended
allocation thereof among the Members.
7.3
VALUATION OF ASSETS.
(a)
Valuation of Securities and other assets shall be made by the Board in
accordance with the requirements of the 1940 Act and the valuation procedures
adopted by the Board.
(b)
The net asset value of each Unit as of any date shall equal the Net Asset Value
of the Master Fund, determined as provided in Section 7.3(a), divided by the
number of outstanding Units on such date.
(c)
The value of Securities and other assets of the Master Fund and the net worth
of
the Master Fund as a whole and the Units 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.
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
8.1
AMENDMENT OF LIMITED LIABILITY COMPANY OPERATING AGREEMENT.
(a)
Except as otherwise provided in this Section 8.1, this Agreement may be amended,
in whole or in part, with the approval of: (i) the Board (including the vote
of
a majority of the Independent Directors, if required by the 0000 Xxx); or (ii)
a
majority (as defined in the 0000 Xxx) of the outstanding voting securities
of
the Master Fund .
(b)
Any amendment that would:
|
(1)
increase the obligation of a Member to make any contribution to the
capital of the Master Fund;
|
|
(2)
reduce the Account of a Member; or
|
|
(3)
modify the events causing the dissolution of the Master Fund 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 offer his or her entire Interest
for
repurchase by the Master Fund .
|
36
(c)
The power of the Board to amend this Agreement at any time without the consent
of the Members may include, but is not limited to:
(1)
restate
this Agreement together with any amendments hereto that have been duly adopted
in accordance with this Agreement to incorporate such amendments in a single,
integrated document;
(2) amend
this Agreement (other than with respect to the matters set forth in Section
8.1(b) hereof) to effect compliance with any applicable law or regulation or
to
cure any ambiguity or to correct or supplement any provision hereof that may
be
inconsistent with any other provision hereof, provided that such action does
not
adversely affect the rights of any Member in any material respect; and
(3) amend
this Agreement to make such changes as may be necessary or desirable, based
on
advice of legal counsel to the Master Fund , to assure the Master Fund 's
continuing eligibility to be classified for U.S. Federal income tax purposes
as
a partnership.
(d)
The Board shall give written notice of any proposed amendment to this Agreement
(other than any amendment of the type contemplated by clause (ii) of Section
8.1(a) hereof) to each Member, which notice shall set forth: (i) the text of
the
proposed 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 Director,
acting severally, and any liquidator of the Master Fund’s assets appointed
pursuant to Section 6.2 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 or as otherwise required by the Delaware Act; and
|
|
(3)
all other such instruments, documents, and certificates that, in
the
opinion of legal counsel to the Master Fund , from time to time may
be
required by the laws of the United States of America, the State of
Delaware, or any other jurisdiction in which the Master 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 Master 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 Master Fund without such Member's consent.
If
an amendment to the Certificate or this Agreement or any action by or with
respect to the Master 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 which 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 Member will rely on the
effectiveness of this special power-of-attorney with a view to the orderly
administration of the affairs of the Master Fund.
37
(c)
This power-of-attorney is a special power-of-attorney and is coupled with an
interest in favor of each Director, acting severally, and any liquidator of
the
Master Fund’s assets, appointed pursuant to Section 6.2 hereof, 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 Master Fund , the Board,
or
any liquidator shall have had notice thereof; and
|
|
(2)
shall survive the delivery of a Transfer by a Member of the whole
or any
portion of such Member's Interest, except that where the transferee
thereof has been approved by the Board for admission to the Master
Fund as
a substituted Member, this power-of-attorney given by the transferor
shall
survive the delivery of such assignment for the sole purpose of enabling
the Board or any liquidator to execute, acknowledge, and file any
instrument necessary to effect such substitution.
|
8.3
NOTICES. Notices that may be or are required to be provided under this Agreement
shall be made, if to a Member, by regular postal mail, hand delivery, registered
or certified mail return receipt requested, commercial courier service, telex,
or telecopy, electronic mail, the internet, computer interface, or any other
electronic method or device of document transfer or telegraphic or other written
communication, or, if to the Master Fund , by regular postal mail, hand
delivery, registered or certified mail return receipt requested, commercial
courier service, telex, or telecopy, electronic mail, the internet, computer
interface, or any other electronic method or device of document transfer or
telegraphic or other written communication, and shall be addressed to the
respective parties hereto at their addresses as set forth on the books and
records of the Master Fund (or to such other addresses as may be designated
by
any party hereto by notice addressed to the Master Fund in the case of notice
given to any Member, and to each of the Members in the case of notice given
to
the Master Fund ). Notices shall be deemed to have been provided when delivered
by hand, on the date indicated as the date of receipt on a return receipt or
when received if sent by regular mail, commercial courier service, telex,
telecopy, telegraphic, electronic, or other means of written communication.
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.
If
any notice addressed to a Member at the address of that Member appearing on
the
books and records of the Master Fund is returned to the Master Fund marked
to
indicate that such notice is unable to be delivered to the Member at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if such future notices or reports shall be kept
available to the Member, upon written demand of the Member, at the principal
executive office of the Master Fund for a period of one year from the date
of
the giving of the notice.
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, 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 Form N-2 which affect numerous aspects of
the
conduct of the Master 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 Form N-2 subject to any exemptive relief obtained thereunder
relating to the Master Fund.
8.6
CHOICE OF LAW; ARBITRATION.
(a)
Notwithstanding the place where this 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 the State
of
Delaware.
38
(b)
Unless otherwise agreed in writing, each Member agrees to submit all
controversies arising between or among Members or one or more Members and the
Master Fund in connection with the Master Fund or its businesses or concerning
any transaction, dispute, or the construction, performance, or breach of this
or
any other agreement, whether entered into prior to, on, or subsequent to the
date hereof, to arbitration in accordance with the provisions set forth below.
Each Member understands that:
|
(1)
arbitration is final and binding on the parties;
|
|
(2)
the parties are waiving their rights to seek remedies in court, including
the right to jury trial;
|
|
(3)
pre-arbitration discovery is generally more limited than and different
from court proceedings;
|
|
(4)
the arbitrator's award is not required to include factual findings
or
legal reasoning and a party's right to appeal or to seek modification
of
rulings by arbitrators is strictly limited; and
|
|
(5)
a panel of arbitrators will typically include a minority of arbitrators
who were or are affiliated with the securities industry.
|
(c)
All controversies that may arise among Members and one or more Members and
the
Master Fund concerning this Agreement shall be determined by arbitration in
New
York City in accordance with the Federal Arbitration Act, to the fullest extent
permitted by law. Any arbitration under this Agreement shall be determined
before and in accordance with the rules then obtaining of either the New York
Stock Exchange, Inc. (the "NYSE") or the NASD Regulation, Inc. (the "NASDR"),
as
the Member or entity instituting the arbitration may elect. If the NYSE or
NASDR
does not accept the arbitration for consideration, the arbitration shall be
submitted to, and determined in accordance with the rules then obtaining of,
the
Center for Public Resources, Inc. in New York City. Judgment on any award of
any
such arbitration may be entered in the Supreme Court of the State of New York
or
in any other court having jurisdiction of the person or persons against whom
such award is rendered. Any notice of such arbitration or for the confirmation
of any award in any arbitration shall be sufficient if given in accordance
with
the provisions of this Agreement. Each Member agrees that the determination
of
the arbitrators shall be binding and conclusive upon the Member.
(d)
No Member shall bring a putative or certified class action to arbitration,
nor
seek to enforce any pre-dispute arbitration agreement against any person who
has
initiated in court a putative class action or who is a Member of a putative
class who has not opted out of the class with respect to any claims encompassed
by the putative class action unless and until: (i) the class certification
is
denied; (ii) the class is decertified; or (iii) the Member is excluded from
the
class by the court. The forbearance to enforce an agreement to arbitrate shall
not constitute a waiver of any rights under this Agreement except to the extent
stated herein.
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
(including the Manager), Directors, and the Master Fund. This Agreement is
not
intended for the benefit of non-Member creditors and no rights are granted
to
non-Member creditors under this Agreement.
8.8
CONSENTS. Any and all consents, agreements, or approvals provided for or
permitted by this Agreement shall be in writing and a signed copy thereof shall
be filed and kept with the books of the Master Fund.
8.9
MERGER AND CONSOLIDATION.
(a)
The Master Fund may merge or consolidate with or into one or more limited
liability companies formed under the Delaware Act or other business entities
(as
defined in Section 18-209(a) of the Delaware Act) pursuant to an agreement
of
merger or consolidation which has been approved in the manner contemplated
by
Section 18-209(b) of the Delaware Act.
39
(b)
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
an agreement of merger or consolidation approved in accordance with Section
18-209(b) of the Delaware Act may, to the extent permitted by Section 18-209(b)
of the Delaware Act: (i) effect any amendment to this Agreement; (ii) effect
the
adoption of a new limited liability company operating agreement for the Master
Fund if it is the surviving or resulting limited liability company in the merger
or consolidation; or (iii) provide that the limited liability company operating
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
operating agreement of the surviving or resulting limited liability company.
8.10
MASTER-FEEDER STRUCTURE. The Master Fund may, at the discretion of the Board,
as
may be permitted by the 1940 Act, and upon the resolution of a majority of
the
then Directors, operate as a master-feeder structure or change an existing
master-feeder structure, in which the feeder fund invests all of its assets
into
a master fund, rather than making investments in securities directly. Existing
or created Series of the Master Fund may either become feeders into a master
fund, or themselves become master funds into which other funds may be feeders.
8.11
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.
8.12
CONFIDENTIALITY.
(a)
A Member may obtain from the Master Fund, for any purpose reasonably related
to
the Member's Interest, certain confidential information regarding the business
affairs or assets of the Master 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 (the "Confidential Information").
(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 or address (whether business, residence, or mailing) of any
Member or any other Confidential Information without the prior written consent
of the Board, which consent may be withheld in its sole and absolute discretion.
(c)
Each Member recognizes that in the event that this Section 8.12 is breached
by
any Member or any of its principals, partners, Members, trustees, officers,
directors, employees, or agents or any of its affiliates, including any of
such
affiliates' principals, partners, members, trustees, officers, directors,
employees, or agents, irreparable injury may result to the non-breaching Members
and the Master Fund . Accordingly, in addition to any and all other remedies
at
law or in equity to which the non-breaching Members and the Master Fund may
be
entitled, such Members also shall have the right to obtain equitable relief,
including, without limitation, injunctive relief, to prevent any disclosure
of
Confidential Information, plus reasonable attorneys' fees and other litigation
expenses incurred in connection therewith. In the event that any non-breaching
Member or the Master Fund determines that any of the other Members or any of
its
principals, partners, Members, trustees, officers, directors, employees, or
agents or any of its affiliates, including any of such affiliates' principals,
partners, Members, directors, officers, employees, or agents should be enjoined
from or required to take any action to prevent the disclosure of Confidential
Information, each of the other non-breaching Members agrees to pursue in a
court
of appropriate jurisdiction such injunctive relief.
(d)
The Master Fund shall have the right to keep confidential from the Members
for
such period of time as it deems reasonable any information that the Board
reasonably believes to be in the nature of trade secrets or other information
the disclosure of which the Board in good faith believes is not in the best
interest of the Master Fund or could damage the Master Fund or its business
or
that the Master Fund is required by law or by agreement with a third party
to
keep confidential.
8.13
CERTIFICATION OF NON-FOREIGN STATUS. Each Member or transferee of an Interest
from a Member that is admitted to the Master Fund in accordance with this
Agreement shall certify, upon admission to the Master Fund and at such other
time thereafter as the Board may request, whether he or she is a "United States
Person" within the meaning of Section 7701(a) (30) of the Code on forms to
be
provided by the Master Fund, and shall notify the Master Fund within 30 days
of
any change in such Member's status. Any Member who shall fail to provide such
certification when requested to do so by the Board may be treated as a
non-United States Person for purposes of U.S. Federal tax withholding.
40
8.14
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 provisions of this Agreement are 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).
8.15
ENTIRE AGREEMENT. This Agreement (including the Schedule attached hereto which
is incorporated herein) constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
8.16
DISCRETION. To the fullest extent permitted by law, whenever in this Agreement,
a person is permitted or required to make a decision: (i) in its "sole
discretion" or "discretion" or under a grant of similar authority or latitude,
such person shall be entitled to consider only such interests and factors as
it
desires, including its own interests, and shall have no duty or obligation
to
give any consideration to any interest of or factors affecting the Master Fund
or the Members; or (ii) in its "good faith" or under another express standard,
then such person shall act under such express standard and shall not be subject
to any other or different standards imposed by this Agreement or any other
agreement contemplated herein or by relevant provisions of law or in equity
or
otherwise.
8.17
COUNTERPARTS. This Agreement may be executed in several counterparts, all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties have not signed the same counterpart.
8.18
TAX MATTERS MEMBER. The Manager will be the "tax matters Member" under the
Code
for the Master Fund or such other Member as may be designated by the Board.
THE
UNDERSIGNED ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS ENTIRETY BEFORE
SIGNING, INCLUDING THE PRE-DISPUTE ARBITRATION CLAUSES SET FORTH IN SECTION
8.6
AND THE CONFIDENTIALITY CLAUSES SET FORTH IN SECTION 8.12.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the day and year first above written.
|
By:
|
/s/Xxxxxxx
X. X'Xxxxxxxxxx *
|
Date:
|
October
17, 2006
|
|
as
the Organizational Member
|
|||
|
*By:
|
/s/Xxxxxx
X. Xxxxx
|
|
|
Xxxxxx
X. Xxxxx,
|
||
|
as
attorney-in-fact
|
||
ADDITIONAL
MEMBERS:
Each
person who has signed or has had signed on its behalf a Member Signature Page,
which shall constitute a counterpart hereof.
SCHEDULE
I
The
undersigned understand and agree to the provisions of this Agreement pertaining
to the obligations of Directors.
41
|
Signed:
|
|||
|
(Name
& address)
|
|||
|
Date:
|
|||
|
Signed:
|
|||
|
(Name
& address)
|
|||
|
Date:
|
|||
|
Signed:
|
|||
|
(Name
& address)
|
|||
|
Date:
|
|||
|
Signed:
|
|||
|
(Name
& address)
|
|||
|
Date:
|
|||
42
