Exhibit Swing Shift Series Designation of Series Swing Shift, a series of Commonwealth Thoroughbreds LLC
Exhibit 3.8
Exhibit Swing Shift
Series Designation of
Series Swing Shift, a series of Commonwealth Thoroughbreds LLC
In accordance with the Amended and Restated Limited Liability Company Agreement of Commonwealth Thoroughbreds LLC (the “Company”) dated as of September 27, 2019 (the “LLC Agreement”) and upon the execution of this Exhibit Swing Shift by the Company and Commonwealth Markets, Inc. in its capacity as Managing Member of the Company and Initial Member of Series Swing Shift, a series of Commonwealth Thoroughbreds LLC (“Series Swing Shift”), this exhibit shall be attached to, and deemed incorporated in its entirety into, the LLC Agreement as “Exhibit Swing Shift”.
References to Sections and Articles set forth herein are references to Sections and Articles of the LLC Agreement, as in effect as of the effective date of establishment set forth below.
Name of Series |
Series Swing Shift, a series of Commonwealth Thoroughbreds LLC |
Effective date of establishment |
August 2, 2021 |
Managing Member |
Commonwealth Markets, Inc., is hereby appointed as the Managing Member of Series Swing Shift and shall continue to act as the Managing Member of Series Swing Shift until dissolution of Series Swing Shift pursuant to Section 12.1(b) or its removal and replacement pursuant to Section 4.3 or ARTICLE XI. |
Initial Member |
Commonwealth Markets, Inc. |
Series Asset |
The Series Assets of Series Swing Shift shall comprise up to a 10% interest in a two-year old colt by Midnight’s Storm out of Tasunke by Indian Charlie, which will be acquired by Series Swing Shift upon the exercise of a series of options, and any assets and liabilities associated with such asset and such other assets and liabilities acquired by Series Swing Shift from time to time, as determined by the Managing Member in its sole discretion. |
Management Fee |
A fee of up to 15% of the purchase price of the Series Asset will be paid to the Manager from the offering proceeds at closing as compensation for identifying investigating, evaluating, and managing the acquisition of a Thoroughbred asset.
In addition, as compensation for the services provided by the Manager, during a Series Thoroughbred’s racing career the Manager will be paid a fee equal to 10% of net winnings after fees customarily withheld from purses by the horsemen’s bookkeeper prior to distribution of net purses earned, which will become due and payable to the Manager when released by the track at which the race took place and the purse was earned. After the Series Thoroughbred retires from racing, the Manager will be paid a quarterly fee equal to 10% of any Free Cash Flow generated by the Series, payable at the time there is a distribution of Free Cash Flow to Unit Holders of the Series, as described in Distribution Rights below. |
Purpose |
As stated in Section 2.4 |
Issuance |
Subject to Section 6.3(a)(i), the maximum number of Series Swing Shift Units the Company can issue is 2,214. |
Number of Series Swing Shift Units held by the Managing Member and its Affiliates |
The Managing Member, together with its affiliates, must hold a minimum of 2% and may hold up to a maximum of 10% of the Series Swing Shift Units as of the closing of the Initial Offering. |
Broker |
Dalmore Group, LLC |
Brokerage Fee |
1% of the offering proceeds. |
Preference Designation |
No Preference Designation shall be required in connection with the issuance of Series Swing Shift Units. |
Voting |
Subject to Section 3.5, the Series Swing Shift Units shall entitle the Record Holders thereof to one vote per Unit on any and all matters submitted to the consent or approval of Members generally. No separate vote or consent of the Record Holders of Series Swing Shift Units shall be required for the approval of any matter, except as required by the Delaware Act or as provided elsewhere in the LLC Agreement (including this Series Designation).
The affirmative vote of the holders of not less than a majority of the Series Swing Shift Units then Outstanding shall be required for: |
● | any amendment to the LLC Agreement (including this Series Designation) that would adversely change the rights of the Series Swing Shift Units; | |
● | mergers, consolidations or conversions of Series Swing Shift or the Company; and | |
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all such other matters as the Managing Member, in its sole discretion, determines shall require the approval of the holders of the Outstanding Series Swing Shift Units voting as a separate class. |
Notwithstanding the foregoing, the separate approval of the holders of Series Swing Shift Units shall not be required for any of the other matters specified under Section 13.1. | |
Splits |
There shall be no subdivision of the Series Swing Shift Units other than in accordance with Section 3.7. |
Organizational Fee |
3% of the proceeds received from the offering of the Series Swing Shift Units payable to reimburse the Manager for legal, accounting and compliance expenses incurred by the Manager to set up the legal and financial framework and compliance infrastructure for the marketing and sale of the Series Swing Shift Units and all subsequent offerings. |
Other rights |
Holders of Series Swing Shift Units shall have no conversion, exchange, sinking fund, redemption or appraisal rights, no preemptive rights to subscribe for any securities of the Company and no preferential rights to distributions of Series Swing Shift Units. |
Officers |
There shall initially be no specific officers associated with Series Swing Shift, although, the Managing Member may appoint Officers of Series Swing Shift from time to time, in its sole discretion. |
Aggregate Ownership Limit |
10% |
Minimum Units |
One (1) Unit per Member |
Fiscal Year |
As stated in Section 9.2 |
Information Reporting |
As stated in Section 9.1(c) |
Termination |
As stated in Section 12.1(b) |
Liquidation |
As stated in Section 12.3 |
Amendments to this Exhibit Swing Shift |
As stated in Article XIII |
Executed as of August 2, 2021.
By: |
Commonwealth Markets, Inc., as managing member |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Title: Chief Executive and Chief Financial Officer |