<PAGE> 1
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement [ ] Confidential, For Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
Wynstone Partners, L.P.
(Name of Registrant as Specified in Its Charter)
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(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
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(4) Proposed Maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials:
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[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, Schedule or Registration no.:
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(3) Filing Party:
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(4) Date Filed:
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<PAGE> 2
June 4, 1999
Dear Limited Partner:
On behalf of the Individual General Partners of Wynstone Partners,
L.P. (the "Partnership"), it is my pleasure to invite you to attend a Special
Meeting of Limited Partners of the Partnership. The meeting will be held on June
25, 1999 at 10:00 a.m. at the offices of CIBC World Markets Corp., 200 Liberty
Street, One World Financial Center, 40th Floor, New York, New York.
The business to be conducted at the meeting is outlined in the
attached Notice of Special Meeting and Proxy Statement. You should review the
Notice and Proxy Statement carefully. Please feel free to call the proxy
solicitor, PFPC Inc., at 1-888-520-3277 with any questions you may have
regarding the voting of your limited partnership interests, and please feel free
to call CIBC World Markets Corp., the administrator of the Partnership, at
1-800-999-6726 ext. 4225 with any questions regarding the proposals described
therein or other matters.
It is important that your limited partnership interests be
represented at the meeting. Please mark, sign, date and return the enclosed
proxy card in the postage-paid envelope provided, whether or not you expect to
attend the Special Meeting. If you attend the meeting and wish to vote in
person, you may revoke your proxy at that time.
Sincerely,
/s/
--------------------------------
Paul Belica
Individual General Partner
<PAGE> 3
NOTICE OF SPECIAL MEETING OF LIMITED PARTNERS
To the Limited Partners:
Notice is hereby given that a Special Meeting of Limited Partners
(the "Meeting") of Wynstone Partners, L.P. (the "Partnership"), will be held at
the offices of CIBC World Markets Corp. ("CIBC WM"), 200 Liberty Street, One
World Financial Center, 40th Floor, New York, New York, on June 25, 1999 at
10:00 a.m., New York time. The Meeting will be held for the following purposes:
1. To approve the conversion of the Partnership to a Delaware
limited liability company, to be named Wynstone Fund, L.L.C. (the "Fund");
2. To approve the adoption of the proposed limited liability company
agreement of the Fund;
3. To elect the three current Individual General Partners of the
Partnership and one additional nominee to serve as a Manager of the Fund,
subject to the effectiveness of the conversion of the Partnership to the Fund,
until their successors are elected and qualified;
4. To ratify the selection of Ernst & Young LLP as independent
auditors for the Fund for the fiscal year ending December 31, 1999; and
5. To transact such other business as may properly come before the
Meeting, or any adjournment or adjournments thereof.
The close of business on May 12, 1999 has been fixed as the record
date for the determination of Limited Partners entitled to notice of, and to
vote at, the Meeting.
By Order of the Individual
General Partners
--------------------------------
Paul Belica
Individual General Partner
June 4, 1999
EACH LIMITED PARTNER MAY THINK HIS OR HER VOTE IS NOT IMPORTANT. HOWEVER, THE
MEETING OF LIMITED PARTNERS WILL HAVE TO BE ADJOURNED WITHOUT CONDUCTING ANY
BUSINESS IF LESS THAN A QUORUM IS REPRESENTED. IN THAT EVENT, THE PARTNERSHIP
WOULD CONTINUE TO SOLICIT VOTES IN AN ATTEMPT TO ACHIEVE A QUORUM.
YOUR VOTE COULD BE CRITICAL TO ENABLE THE PARTNERSHIP TO HOLD THE MEETING AS
SCHEDULED, SO PLEASE MARK, SIGN, DATE AND RETURN YOUR PROXY CARD AS SOON AS
POSSIBLE IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
<PAGE> 4
PROXY STATEMENT
SPECIAL MEETING OF LIMITED PARTNERS
TO BE HELD ON JUNE 25, 1999
This Proxy Statement is furnished in connection with a solicitation
of proxies by the Individual General Partners of Wynstone Partners, L.P. (the
"Partnership") to be voted at the Special Meeting of Limited Partners of the
Partnership (the "Meeting") to be held on June 25, 1999 at 10:00 a.m., New York
time, at the offices of CIBC World Markets Corp. ("CIBC WM"), 200 Liberty
Street, One World Financial Center, 40th Floor, New York, New York, or at any
adjournment thereof, for the purposes set forth in the accompanying Notice of
Special Meeting of Limited Partners. Limited Partners of record at the close of
business on May 12, 1999 (the "Record Date") are entitled to notice of and to
vote at the Meeting. Each Limited Partner will be entitled to cast a number of
votes equivalent to such Limited Partner's Partnership percentage as of the
Record Date.1 At the close of business on the Record Date, the total of the
capital accounts of all Limited Partners was $15,089,507.
All properly executed proxies received before the Meeting will be
voted at the Meeting or any adjournment thereof in accordance with the
instructions marked thereon or otherwise as provided therein. Unless
instructions to the contrary are marked, proxies will be voted: (1) "FOR" the
approval of the conversion of the Partnership to a Delaware limited liability
company, to be named Wynstone Fund, L.L.C. (the "Fund"); (2) "FOR" the adoption
of the proposed limited liability company agreement of the Fund; (3) "FOR" the
election of the three current Individual General Partners of the Partnership and
one additional nominee to serve as a Manager of the Fund, subject to the
effectiveness of the conversion of the Partnership to the Fund, until their
successors are elected and qualified; and (4) "FOR" ratification of the
selection of Ernst & Young LLP as independent auditors for the Fund for the
fiscal year ending December 31, 1999 (collectively, the "Proposals"). Limited
Partners who execute proxies retain the right to revoke them in person at the
Meeting or by written notice received by the Partnership at any time before they
are voted. In addition, any Limited Partner who attends the Meeting in person
may vote by ballot at the Meeting, thereby canceling any proxy previously given.
See "Voting Information."
Proxy materials are being mailed to Limited Partners on or about
June 4, 1999. The principal executive offices of the Partnership are located at
200 Liberty Street, One World Financial Center, 31st Floor, New York, New York
10281. COPIES OF THE PARTNERSHIP'S MOST RECENT ANNUAL AND SEMI-ANNUAL REPORTS
ARE AVAILABLE UPON REQUEST, WITHOUT CHARGE, BY WRITING TO THE PARTNERSHIP AT ITS
PRINCIPAL EXECUTIVE OFFICES OR BY CALLING TOLL-FREE 1-800-999-6726 EXT. 4225.
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(1) A Partnership percentage is established for each Limited Partner on the
Partnership's books as of the first day of each fiscal period. The
Partnership percentage of each Limited Partner was most recently
established on May 1, 1999, and was determined by dividing the balance of
the Limited Partner's capital account as of such date, which was the
commencement of the most recent fiscal period, by the sum of the balances
of capital accounts of all Limited Partners as of that date.
<PAGE> 5
None of the Partnership's Individual General Partners holds any
outstanding limited partnership interests ("Interests") in the Partnership.
Limited Partners known to the Partnership to own of record or beneficially 5% or
more of the outstanding Interests as of the Record Date are identified in
EXHIBIT A to this Proxy Statement. As of the Record Date, CIBC Oppenheimer
Advisers, L.L.C. (the "Adviser"), the investment adviser of the Partnership,
and its affiliates (collectively, "Adviser Affiliates") owned beneficially, as
Limited Partners, in the aggregate 35.71% of the outstanding Interests. The
Adviser has informed the Partnership that it and the Adviser Affiliates will
withhold authority to vote their Interests in connection with Proposal 3.
However, as a result of the ownership of Interests by the Adviser and the
Adviser Affiliates, the Adviser may be deemed to control the Partnership and may
be able to determine the outcome of Proposals 1, 2 and 4 by the voting of
Interests.
PROPOSAL 1
TO APPROVE THE CONVERSION OF THE PARTNERSHIP
TO A DELAWARE LIMITED LIABILITY COMPANY
INTRODUCTION
The Partnership was organized as a Delaware limited partnership on
August 13, 1998. It commenced operations on November 16, 1998 as a registered,
closed-end, non-diversified management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"). The Partnership's limited
partnership agreement dated as of September 2, 1998 (the "Partnership
Agreement"), vests in the Individual General Partners of the Partnership the
overall responsibility for the management and supervision of the Partnership's
operations.
As a Delaware limited partnership, the Partnership is governed by
and subject to the provisions of the Delaware Revised Uniform Limited
Partnership Act (the "LP Act"). The LP Act permits the conversion of a Delaware
limited partnership into a Delaware limited liability company upon the approval
of: (1) all of the general partners of the partnership; and (2) limited partners
who own more than 50 percent of the then current percentage or other interest in
the profits of the partnership owned by all of the limited partners of the
partnership.
On May 12, 1999, the Individual General Partners, who are all the
general partners of the Partnership, unanimously approved the conversion of the
Partnership to the Fund, subject to receipt of the requisite approval of Limited
Partners. Authorization of the conversion therefore requires the affirmative
vote of Limited Partners representing more than 50% of the outstanding
Interests.
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<PAGE> 6
EFFECT OF THE CONVERSION
If Limited Partner approval is obtained, the conversion will be
accomplished by filing a certificate of conversion to limited liability company
(the "Certificate of Conversion") and a certificate of formation with the
Secretary of State of Delaware in accordance with the Delaware Limited Liability
Company Act (the "LLC Act"). The conversion would be effective on the date those
documents are properly filed or on a later date specified in the Certificate of
Conversion. When the conversion becomes effective, the Partnership will be
converted into the Fund and the Fund will be subject to the provisions of the
LLC Act.
Under the LLC Act, the existence of the Fund will be deemed to have
commenced on August 13, 1998, the date the Partnership commenced its existence.
The conversion will not affect any obligations or liabilities of the Partnership
incurred before its conversion or the personal liability of any person incurred
before the conversion. In addition, all rights, privileges and powers of the
Partnership, all property of the Partnership, all debts due to the Partnership,
and all other things and causes of action belonging to the Partnership, will be
vested in the Fund and will be property of the Fund. The conversion is a
continuation of the existence of the Partnership in the form of the Fund.
Upon the effectiveness of the conversion, under the terms of the
proposed limited liability company agreement, each Limited Partner of the
Partnership automatically will become a member of the Fund (each, a "Member").
In addition, under the proposed limited liability company agreement of the Fund,
and subject to their election by the Limited Partners, the person now serving as
Individual General Partners will become "managers" of the Fund and will have
management and supervisory responsibilities similar to those they now have as
general partners of the Partnership. The conversion will not otherwise affect
any rights, privileges or obligations of the Limited Partners. In addition, the
conversion will not result in any material change in the operations or
management of the Partnership. For example:
- each Limited Partner's capital account in the Partnership will
be converted on the books and records of the Fund to a Member
capital account with the same capital account balance and
partnership percentage (which, with respect to the Fund, will
be referred to as the Member's "investment percentage") as
immediately before the conversion;
- the Fund and its Members will bear the same fees and charges,
including an incentive allocation of 20% of net profits and a
monthly management fee of 0.08333% (1% on an annualized basis)
of net assets for the month, as the Partnership and its
Limited Partners now bear;
- the conversion will have no tax consequences to any Limited
Partner or the Partnership or, after the conversion, to any
Member or the Fund;
- the Fund will follow the same investment program and be
subject to the same investment restrictions as the
Partnership; and
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<PAGE> 7
- as Members of the Fund, Limited Partners will enjoy the same
limitations on liability as they now have as limited partners
under the LP Act and the Partnership Agreement.
REASONS FOR THE CONVERSION
Under the LP Act, a general partner of a limited partnership has the
same liabilities to third persons as does a partner in a partnership without
limited partners. This means that under the LP Act, general partners of a
limited partnership, such as the Individual General Partners of the Partnership,
are liable for all the debts and obligations of the partnership unless
provisions in agreements between the limited partnership and third parties
otherwise limit this liability.
Under the LLC Act, a manager of a limited liability company is not
obligated personally for any debt, obligation or liability of the limited
liability company solely by reason of acting as manager of the limited liability
company. The Individual General Partners, therefore, have an interest in the
approval of the conversion because, as managers of the Fund, they will not be
personally liable for the debts, obligations or liabilities of the Fund.
The Individual General Partners believe that the conversion will
also benefit the Fund and Limited Partners. The limited liability afforded
managers of a Delaware limited liability company should enable the Fund to
attract and retain qualified and knowledgeable persons to serve as managers of
the Fund. The Individual General Partners believe that this will promote the
effective supervision of the operations of the Fund. If the conversion is
approved, the managers of the Fund will perform the same functions the
Individual General Partners now perform in respect of the Partnership and will
have responsibility for the overall management and supervision of the Fund's
operations. The managers also will have complete and exclusive authority to
oversee and to establish policies regarding the management, conduct and
operation of the Fund's business. They will exercise the same powers, authority
and responsibilities on behalf of the Fund as are customarily exercised by the
directors of a registered investment company organized as a corporation. These
include, among other things, approving investment advisory agreements and
investment advisory fees, approving service agreements, approving procedures for
the valuation of securities, approving policies and monitoring the Fund's
investment performance and the quality of services provided to the Fund by its
investment adviser and others. For these reasons, the Individual General
Partners recommend that the Limited Partners approve the conversion.
EXPENSES
The expenses relating to the proposed conversion, which are not
expected to exceed $30,000, will be borne by the Fund.
REQUIRED VOTE
Approval of Proposal 1 requires the affirmative vote of Limited
Partners representing more than 50% of the outstanding Interests.
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<PAGE> 8
PROPOSAL 2
TO APPROVE THE ADOPTION OF THE
PROPOSED LIMITED LIABILITY COMPANY AGREEMENT
Under the LLC Act, before the conversion may become effective, a
limited liability company agreement must be approved by the same authorization
required to approve the conversion. A copy of the proposed limited liability
company agreement for the Fund is attached as EXHIBIT B. The limited liability
company agreement will govern the operations of the Fund.
The substantive provisions of the proposed limited liability company
agreement are identical in all material respects to those contained in the
Partnership Agreement. As described above under the discussion of Proposal 1,
there will be no change in the operations of the Fund as compared to the
operations of the Partnership. Differences between the proposed limited
liability company agreement and the Partnership Agreement are only those
necessary primarily to reflect the fact that the Fund will be a limited
liability company form, and the fact that the overall management and
supervision of the Fund's operations will be the responsibility of a Board of
Managers, rather than the responsibility of the Individual General Partners as
is now the case with respect to the Partnership, and that the investors in the
Fund will be Members of the Fund, rather than Limited Partners.
REQUIRED VOTE
Approval of Proposal 2 requires the affirmative vote of Limited
Partners representing more than 50% of the outstanding Interests. Approval of
Proposal 2 is required for the conversion to become effective.
The Individual General Partners recommend that Limited Partners vote
to approve the proposed limited liability company agreement.
PROPOSAL 3
TO ELECT FOUR NOMINEES TO SERVE AS
MANAGERS OF THE FUND SUBJECT TO
THE EFFECTIVENESS OF THE CONVERSION
OF THE PARTNERSHIP TO THE FUND
Limited Partners are being asked to elect four nominees to serve as
managers of the Fund, subject to the effectiveness of the conversion of the
Partnership to the Fund. The nominees include Jesse H. Ausubel, Charles F.
Barber and Paul Belica, each of whom presently serves as an Individual General
Partner of the Partnership and was elected by the organizational limited partner
of the Partnership. The other nominee is Thomas W. Brock, who is not presently
serving as an Individual General Partner of the Partnership and has not
previously been elected by the Limited Partners. The Individual General Partners
have determined to have all of the present Individual General Partners, as well
as the additional nominee, stand for election at this time.
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<PAGE> 9
The persons named as proxies on the accompanying proxy card intend,
in the absence of contrary instructions, to vote all proxies they are entitled
to vote in favor of the election of the four nominees named above to serve as
managers of the Fund, subject to the effectiveness of the conversion of the
Partnership to the Fund, until their successors are duly elected and qualified.
The nominees each have consented to stand for election and to serve if elected.
If any of the nominees should be unable to serve, an event that is not now
anticipated, proxies will be voted for such other person or persons, if any, as
shall be designated by the Individual General Partners.
The Individual General Partners recommend that Limited Partners vote
in favor of the election of the nominees.
The following table sets forth certain information concerning the
four nominees. Unless otherwise noted, the nominees have engaged in the
principal occupation or employment listed in the following table for more than
five years, but not necessarily in the same capacity.
NAME AND AGE PRINCIPAL OCCUPATION(S) DURING PAST 5 YEARS
Jesse H. Ausubel, 47 Director, Program for the Human Environment and
Senior Research Associate, The Rockefeller
University (1993 to present); Program Director,
Alfred P. Sloan Foundation (1994 to present);
Adjunct Scientist, Woods Hole Oceanographic
Institution (1995 to present). Mr. Ausubel also
serves as a Manager of Xanthus Fund, L.L.C., for
which the Adviser serves as investment adviser.
Paul Belica, 77 Advisor, Salomon Smith Barney (1988 to present);
Director, Deck House Inc. (1970 to present);
Director, Central European Value Fund (1994 to
present); Director, Surety Loan Funding
Corporation (1998 to present). Mr. Belica also
serves as a Manager of Xanthus Fund, L.L.C., for
which the Adviser serves as investment adviser.
Charles F. Barber, 82 Consultant; Former Chairman of the Board, ASARCO
Incorporated; Director of 16 investment companies
advised by Salomon Brothers Asset Management,
Inc. Mr. Barber also is a Manager of Xanthus
Fund, L.L.C., for which the Adviser serves as the
investment adviser, and is a Director of the
India Fund, Inc. and the Asia Tigers Fund, Inc.,
for which affiliates of the Adviser serve as
investment adviser.
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<PAGE> 10
NAME AND AGE PRINCIPAL OCCUPATION(S) DURING PAST 5 YEARS
Thomas W. Brock (52) Currently Professor, Columbia University; From 1974
to 1998, served in numerous executive capacities
with Salomon Brothers Inc., including Chairman and
Chief Executive Officer of Salomon Brothers Asset
Management, Inc. (1994 to 1998), Chief
Administrative Officer (1991 to 1994) and Director
of Global Research (1988 to 1991). Mr. Brock
also serves as a Manager of Xanthus Fund, L.L.C.,
for which the Adviser serves as investment
adviser.
The following table sets forth certain information regarding the
compensation expected to be received by the Individual General Partners of the
Partnership and, upon the effectiveness of the conversion, the managers of the
Fund, for the fiscal year ending December 31, 1999.
COMPENSATION TABLE
<TABLE>
<CAPTION>
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Pension or Total
Aggregate Retirement Estimated Compensation
Compensation Benefits Annual from Complex
Name of Person from Partnership Accrued as Benefits Upon
Part of Fund Retirement
Expenses
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jesse H. Ausubel $7,800 0 0 $14,100
Paul Belica $7,800 0 0 $14,100
Charles F. Barber $7,800 0 0 $29,700
Thomas W. Brock $3,900 0 0 $ 7,800
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</TABLE>
The Individual General Partners currently are each paid an annual
retainer of $5,000 and per meeting fees of $700 (or $100 in the case of
telephonic meetings) by the Partnership and are reimbursed by the Partnership
for their reasonable out-of-pocket expenses incurred in providing services to
the Partnership. The Individual General Partners do not receive any pension or
retirement benefits from the Partnership. No changes to these compensation
arrangements will occur as a result of the conversion.
As of the date of this Proxy Statement, the Individual General
Partners did not own any of the outstanding Interests. There is no audit
committee or nominating committee of the Individual General Partners. One
meeting of the Individual General Partners was held during the fiscal year 1998,
which was the organizational meeting of the Partnership held on September 2,
1998.
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<PAGE> 11
REQUIRED VOTE
A plurality of the votes cast at the Meeting is required for the
election of each nominee.
PROPOSAL 4
TO RATIFY THE SELECTION
OF ERNST & YOUNG LLP AS THE
INDEPENDENT AUDITORS OF THE FUND
The Individual General Partners have selected Ernst & Young LLP to
serve as the independent auditors for the Partnership and, upon the
effectiveness of the conversion of the Partnership to the Fund, for the Fund, to
audit the books and accounts of the Fund for fiscal year ending December 31,
1999. It is expected that a representative of Ernst & Young LLP will be
available at the meeting in person or by telephone to answer questions.
REQUIRED VOTE
Approval of Proposal 4 requires the affirmative vote of a "majority
of outstanding voting securities" of the Partnership, which for this purpose
means the lesser of (1) Interests representing more than 50% of the outstanding
Interests or (2) Interests representing 67% of the outstanding Interests if
Interests representing more than 50% of the outstanding Interests are
represented at the Meeting in person or by proxy.
The Individual General Partners recommend that Limited Partners vote
to ratify the selection of Ernst & Young LLP.
ADDITIONAL INFORMATION
VOTING
A quorum is constituted with respect to the Partnership by the
presence in person or by proxy of the holders of a majority of the total number
of votes eligible to be cast by all Limited Partners as of the Record Date. If a
proxy is properly executed and returned accompanied by instructions to withhold
authority to vote, if it represents a nominee "non-vote" (that is, a proxy from
a broker or nominee indicating that such person has not received instructions
from the beneficial owner or other person entitled to vote on a particular
matter with respect to which the broker or nominee does not have discretionary
power) or is marked with an abstention (collectively, "abstentions"), the
Interests in the Partnership represented thereby will be considered to be
present at the Meeting for purposes of determining the existence of a quorum for
the transaction of business. If a proxy is properly executed and returned and is
marked with an abstention, the proxy will not be voted on any matter as to which
the abstention applies. Because the approval of Proposals 1 and 2 each require
the affirmative vote by Limited Partners
-8-
<PAGE> 12
representing more than 50% of the outstanding Interests, abstentions will have
the effect of a "no" vote for purposes of obtaining the requisite approvals of
these Proposals. The Individual General Partners will be elected by a plurality
of Interests voting. Thus, if a quorum is present at the Meeting, an abstention
will not affect the outcome of voting on nominees for election as Individual
General Partners.
In the event that a quorum is not present at the Meeting, the
Individual General Partners may adjourn the Meeting to permit further
solicitation of proxies. If a quorum is present, but sufficient votes to approve
any of the Proposals are not received, the persons named as proxies may propose
one or more adjournments of the Meeting to permit further solicitation of
proxies.
In determining whether to propose an adjournment in such event, the
following factors may be considered: the nature of the Proposals, the percentage
of votes actually cast, the percentage of negative votes actually cast, the
nature of any further solicitation and the information to be provided to Limited
Partners with respect to the reasons for the solicitation. Any such adjournment
will require the affirmative vote of the holders of a majority of the Interests
that are represented at the Meeting in person or by proxy. If a quorum is
present and an adjournment is proposed, the persons named as proxies will vote
those proxies which they are entitled to vote "FOR" either Proposal 1 or
Proposal 2 in favor of such adjournment, and will vote those proxies required to
be voted "AGAINST" both Proposal 1 and Proposal 2 against such adjournment.
Proxies may be solicited personally, or by telephone, by regular
employees of CIBC WM or its affiliates (without special compensation) or by
telephone or telegraph, in addition to the use of mails. Brokerage houses, banks
and other fiduciaries may be requested to forward proxy solicitation material to
their principals to obtain authorization for the execution of proxies, and they
will be reimbursed for such out-of-pocket expenses. In addition, the Partnership
has retained PFPC Inc., which provides certain administrative services to the
Partnership, to assist in the solicitation of the proxy vote. It is anticipated
that PFPC Inc. will be paid for such solicitation services in an amount not to
exceed $5,000 plus reasonable out-of-pocket expenses. Therefore, expenses of the
Meeting will include the costs of (i) preparing, assembling and mailing material
in connection with the solicitation, (ii) reimbursing brokerage houses, banks
and other fiduciaries and (iii) compensating the proxy solicitor. If you have
any questions or need assistance in voting, please contact PFPC Inc. at its toll
free number, 1-888-520-3277.
ADVISER, ADMINISTRATOR AND PLACEMENT AGENT
CIBC Oppenheimer Advisers, L.L.C. (the "Adviser") serves as the
investment adviser of the Partnership. CIBC WM is the managing member and
controlling person of the Adviser, and KBW Asset Management, Inc. is a
non-managing member of the Adviser. The Adviser is located at One World
Financial Center, 31st Floor, 200 Liberty Street, New York, New York 10281.
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<PAGE> 13
CIBC WM provides certain administrative services to the Partnership
pursuant to a separate administrative services agreement. CIBC WM also serves as
the placement agent of the Partnership pursuant to a placement agent agreement.
CIBC WM's principal offices are located at One World Financial Center, 31st
Floor, 200 Liberty Street, New York, New York 10281.
PFPC Inc., located at 400 Bellevue Parkway, Wilmington, Delaware
19809, also provides certain additional administrative and accounting services
to the Partnership pursuant to an administrative, accounting and investor
services agreement.
OTHER BUSINESS
The Individual General Partners do not intend to present any other
business at the Meeting other than the matters discussed in this Proxy Statement
and are not aware of any partner of the Partnership that intends to present any
matter at the Meeting. However, should any such matters with respect to the
Partnership properly come before the Meeting, it is the intention of the persons
named in the accompanying form of proxy to vote the proxy in accordance with
their judgment on such matters.
PARTNER PROPOSALS
The Partnership does not hold annual meetings of Limited Partners.
Any Limited Partner wishing to present a proposal for inclusion at the next
meeting of Limited Partners should submit such proposal to the Partnership at
One World Financial Center, 31st Floor, 200 Liberty Street, New York, New York
10281.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. PARTNERS WHO DO NOT EXPECT TO
ATTEND THE MEETING IN PERSON ARE URGED TO MARK, DATE, SIGN AND RETURN THE
ENCLOSED PROXY CARD IN THE ENCLOSED STAMPED ENVELOPE.
Dated: June 4, 1999
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<PAGE> 14
EXHIBIT A
The following Limited Partners owned of record or are known by the Partnership
to own beneficially 5% or more of the outstanding Interests as of the record
date:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name of Limited Partner Percentage of Outstanding Interests Owned
- --------------------------------------------------------------------------------
<S> <C>
The Browne Revocable Trust 7.14%
Canadian Imperial Holdings, Inc. 33.56%
KBW Asset Management, Inc. 6.43%
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 15
EXHIBIT B
PROPOSED LIMITED LIABILITY COMPANY
AGREEMENT FOR WYNSTONE FUND, L.L.C.
<PAGE> 16
PROXY CARD - - WYNSTONE PARTNERS, L.P.
The undersigned Limited Partner of Wynstone Partners, L.P. (the "Partnership")
hereby appoints Howard M. Singer, Tyson Arnedt and Carmine E. Angone, and each
of them, the attorneys and proxies of the undersigned, with full power of
substitution, to vote, as indicated herein, all of the interests in the
Partnership standing in the name of the undersigned at the close of business on
May 12, 1999 at a Special Meeting of Limited Partners (the "Meeting") to be held
at the offices of CIBC World Markets Corp., 200 Liberty Street, One World
Financial Center, 40th Floor, New York, New York, commencing at 10:00 a.m. on
June 25, 1999, and at any and all adjournments thereof, with all of the powers
the undersigned would possess if then and there personally present and
especially (but without limiting the general authorization and power hereby
given) to vote as indicated on the Proposals, as more fully described in the
Proxy Statement for the Meeting. THIS PROXY IS SOLICITED BY THE PARTNERSHIP'S
INDIVIDUAL GENERAL PARTNERS AND WILL BE VOTED "FOR" THE PROPOSALS SET FORTH
BELOW UNLESS OTHERWISE INDICATED.
THE INDIVIDUAL GENERAL PARTNERS OF THE PARTNERSHIP RECOMMEND A
VOTE "FOR" EACH OF THE FOLLOWING PROPOSALS.
TO VOTE, MARK THE APPROPRIATE BLOCKS BELOW IN BLUE OR BLACK INK
AS FOLLOWS: [X]
<PAGE> 17
PROXY CARD - - WYNSTONE PARTNERS, L.P.
FOR AGAINST ABSTAIN
1. To approve the conversion of [ ] [ ] [ ]
Wynstone Partners, L.P. to a Delaware
limited liability company, named
Wynstone Fund, L.L.C.
FOR AGAINST ABSTAIN
2. To approve the adoption of the proposed [ ] [ ] [ ]
limited liability company agreement
of Wynstone Fund, L.L.C.
FOR
ALL NOMINEES WITHHOLD
LISTED BELOW AUTHORITY
3. To elect the Managers of Wynstone Fund, [ ] [ ]
L.L.C., subject to the effectiveness
of the conversion, until their successors
are duly elected and qualified.
FOR AGAINST ABSTAIN
4. To ratify the selection of [ ] [ ] [ ]
Ernst & Young LLP as independent
auditors for Wynstone Fund, L.L.C. for
the fiscal year ending ecember 31, 1999.
(INSTRUCTIONS: TO WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE, STRIKE
A LINE THROUGH THE NOMINEE'S NAME IN THE LIST BELOW)
Jesse H. Ausubel Charles F. Barber Paul Belica Thomas W. Brock
PLEASE MARK, SIGN, DATE AND RETURN ONE COPY OF THIS PROXY CARD PROMPTLY USING
THE ENCLOSED ENVELOPE AND RETAIN ONE COPY FOR YOUR RECORDS.
- --------------------------- --------------------------- -------------------
SIGNATURE SIGNATURE (JOINT OWNERS) DATE
- --------------------------- ---------------------------
TITLE TITLE
Signature(s) should be exactly as name or names appearing on this proxy. If
shares are held jointly, each holder should sign. If signing is by attorney,
executor, administrator, trustee or guardian, please give full title.
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<PAGE> 18
------------------------------------
WYNSTONE FUND, L.L.C.
(A DELAWARE LIMITED LIABILITY COMPANY)
------------------------------------
LIMITED LIABILITY COMPANY AGREEMENT
DATED AS OF JUNE___, 1999
------------------------------------
ONE WORLD FINANCIAL CENTER, 31ST FLOOR
200 LIBERTY STREET
NEW YORK, NEW YORK 10281
(212) 667-4225
<PAGE> 19
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.........................................................1
ARTICLE II ORGANIZATION; ADMISSION OF MEMBERS................................11
2.1 Formation of Limited Liability Company...............................11
2.2 Name.................................................................11
2.3 Principal and Registered Office......................................11
2.4 Duration.............................................................11
2.5 Objective and Business of the Company................................12
2.6 Board of Managers....................................................12
2.7 Members..............................................................13
2.8 Special Advisory Member..............................................13
2.9 Organizational Member................................................13
2.10 Both Managers and Members............................................13
2.11 Limited Liability....................................................13
ARTICLE III MANAGEMENT.......................................................14
3.1 Management and Control...............................................14
3.2 Actions by the Board of Managers.....................................15
3.3 Meetings of Members..................................................15
3.4 Custody of Assets of the Company.....................................16
3.5 Other Activities of Members and Managers.............................16
3.6 Duty of Care.........................................................16
3.7 Indemnification......................................................17
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<PAGE> 20
3.8 Fees, Expenses and Reimbursement.....................................19
ARTICLE IV TERMINATION OF STATUS OF ADVISER AND MANAGERS, TRANSFERS
AND REPURCHASES...................................................21
4.1 Termination of Status of the Adviser.................................21
4.2 Termination of Status of a Manager...................................21
4.3 Removal of the Managers..............................................21
4.4 Transfer of Interests of Members.....................................21
4.5 Transfer of Interests of Special Advisory Member.....................22
4.6 Repurchase of Interests..............................................22
ARTICLE V CAPITAL............................................................25
5.1 Contributions to Capital.............................................25
5.2 Rights of Members to Capital.........................................25
5.3 Capital Accounts.....................................................26
5.4 Allocation of Net Profit and Loss....................................26
5.5 Allocation of Insurance Premiums and Proceeds........................26
5.6 Allocation of Certain Withholding Taxes and Other Expenditures.......27
5.7 Reserves.............................................................27
5.8 Incentive Allocation.................................................28
5.9 Allocation of Organizational Expenses................................29
5.10 Tax Allocations......................................................29
5.11 Distributions........................................................31
5.12 Foreign Withholding..................................................31
ARTICLE VI DISSOLUTION AND LIQUIDATION.......................................32
6.1 Dissolution..........................................................32
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<PAGE> 21
6.2 Liquidation of Assets................................................32
ARTICLE VII ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS.....................33
7.1 Accounting and Reports...............................................33
7.2 Determinations by the Board of Managers..............................34
7.3 Valuation of Assets..................................................34
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................35
8.1 Amendment of Limited Liability Company Agreement.....................35
8.2 Special Power of Attorney............................................36
8.3 Notices..............................................................37
8.4 Agreement Binding Upon Successors and Assigns........................37
8.5 Applicability of 1940 Act and Form N-2...............................38
8.6 Choice of Law; Arbitration...........................................38
8.7 Not for Benefit of Creditors.........................................39
8.8 Consents.............................................................39
8.9 Merger and Consolidation.............................................39
8.10 Pronouns.............................................................40
8.11 Confidentiality......................................................40
8.12 Certification of Non-Foreign Status..................................40
8.13 Severability.........................................................41
8.14 Filing of Returns....................................................41
8.15 Tax Matters Partner..................................................41
8.16 Section 754 Election.................................................42
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<PAGE> 22
WYNSTONE FUND, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of Wynstone Fund, L.L.C. (the
"Company") is dated as of June ___, 1999 by and among Jesse H. Ausubel, Paul
Belica, Charles F. Barber and Thomas W. Brock as the Managers, CIBC Oppenheimer
Advisers, L.L.C., as the Special Advisory Member, Jesse H. Ausubel as the
Organizational Member, and those persons who have been admitted as limited
partners of Wynstone Partners, L.P., a limited partnership organized under the
laws of the state of Delaware on August 13, 1998, and whose limited partner
interests have been converted to member interests in the Company as of the date
hereof, or who hereinafter are admitted as Members.
W I T N E S S E T H :
WHEREAS, Wynstone Partners, L.P. (the "Partnership") was organized as a
Delaware limited partnership on August 13, 1998; and
WHEREAS, effective [June 25, 1999], the Partnership converted to a
Delaware limited liability company under the Delaware Limited Liability Company
Act pursuant to a Certificate of Conversion to Limited Liability Company and a
Certificate of Formation, both dated and filed with the Secretary of State of
Delaware on [June 25, 1999]; and
WHEREAS, the conversion of the Partnership to a Delaware limited liability
company and the adoption of this Agreement as the operating agreement of the
Company were duly approved by the Individual General Partners and the limited
partners of the Partnership;
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:
ADMINISTRATOR The person who provides administrative services
to the Company pursuant to an administrative
services agreement.
<PAGE> 23
ADVISER CIBC Oppenheimer Advisers, L.L.C., a limited
liability company organized under Delaware law,
or any person who may hereinafter serve as the
investment adviser to the Company pursuant to an
Investment Advisory Agreement.
ADVISERS ACT The Investment Advisers Act of 1940 and the
rules, regulations and orders thereunder, as
amended from time to time, or any successor law.
AFFILIATE An affiliated person of a person as such term is
defined in the 1940 Act.
AGREEMENT This Limited Liability Company Agreement, as
amended from time to time.
ALLOCATION CHANGE With respect to each Member for each Allocation
Period, the difference between:
(1) the sum of (a) the balance of such
Member's Capital Account as of the
close of the Allocation Period (after
giving effect to all allocations to be
made to such Member's Capital Account
as of such date other than any
Incentive Allocation to be debited
against such Member's Capital Account),
plus (b) any debits to such Member's
Capital Account during the Allocation
Period to reflect any actual or deemed
distributions or repurchases with
respect to such Member's Interest, plus
(c) any debits to such Member's Capital
Account during the Allocation Period to
reflect any Insurance premiums
allocable to such Member, plus (d) any
debits to such Member's Capital Account
during the Allocation Period to reflect
any items allocable to such Member's
Capital Account pursuant to Section 5.6
hereof; and
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<PAGE> 24
(2) the sum of (a) the balance of such
Member's Capital Account as of the
commencement of the Allocation Period,
plus (b) any credits to such Member's
Capital Account during the Allocation
Period to reflect any contributions by
such Member to the capital of the
Company, plus (c) any credits to such
Member's Capital Account during the
Allocation Period to reflect any
Insurance proceeds allocable to such
Member.
If the amount specified in clause (1) exceeds
the amount specified in clause (2), such
difference shall be a POSITIVE ALLOCATION
CHANGE, and if the amount specified in clause
(2) exceeds the amount specified in clause (1),
such difference shall be a NEGATIVE ALLOCATION
CHANGE.
ALLOCATION PERIOD With respect to each Member, the period
commencing as of the date of admission of such
Member to the Company, and thereafter each
period commencing as of the day following the
last day of the preceding Allocation Period
with respect to such Member, and ending at the
close of business on the first to occur of the
following:
(1) the last day of a Fiscal Year;
(2) the day as of which the Company
repurchases the entire Interest of
such Member;
(3) the day as of which the Company admits
as a substituted Member a person to
whom the Interest of such Member has
been Transferred (unless there is no
change of beneficial ownership); and
(4) the day as of which the Adviser's
status as the Special Advisory Member
is terminated pursuant to Section 4.1
hereof.
Each Member who had been a limited partner of
the Partnership before the Conversion shall be
deemed to have been admitted to the Company as
of the date of such Member's admission as a
limited partner of the Partnership.
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<PAGE> 25
BOARD OF MANAGERS The Board of Managers established pursuant to
Section 2.6.
CAPITAL ACCOUNT With respect to each Member, the capital account
established and maintained on behalf of each
Member pursuant to Section 5.3 hereof.
CAPITAL PERCENTAGE A percentage established for each Member on the
Company's books as of each Expense Allocation
Date. The Capital Percentage of a Member on an
Expense Allocation Date shall be determined by
dividing the amount of capital contributed to
the Company by the Member pursuant to Section
5.1 hereof by the sum of the capital contributed
to the Company by each Member pursuant to
Section 5.1 hereof on or prior to such Expense
Allocation Date. The sum of the Capital
Percentages of all Members on each Expense
Allocation Date shall equal 100%.
CERTIFICATE The Certificate of Formation of the Company and
any amendments thereto as filed with the office
of the Secretary of State of Delaware.
CIBC WM CIBC World Markets Corp., or any successor
thereto.
CIBC WM SERVICES Such administrative services as CIBC WM shall
provide to the Company pursuant to a separate
written agreement with the Company as
contemplated by Section 3.8(a) hereof.
CLOSING DATE The first date on or as of which a limited
partner of the Partnership other than the
Organizational Limited Partner was admitted to
the Partnership.
CODE The United States Internal Revenue Code of 1986,
as amended and as hereafter amended from time to
time, or any successor law.
COMPANY The limited liability company governed hereby,
as such limited liability company may from time
to time be constituted.
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<PAGE> 26
CONVERSION The conversion of the Partnership to the
Company, which became effective on [June 25,
1999] upon the filing of a Certificate of
Conversion to Limited Liability Company and the
Certificate with the Secretary of State of
Delaware.
DELAWARE ACT The Delaware Limited Liability Company Act as in
effect on the date hereof and as amended from
time to time, or any successor law.
EXPENSE ALLOCATION DATE The Closing Date, and thereafter each day on or
before October 1, 1999, as of which a
contribution to the capital of the Company is
made pursuant to Section 5.1 hereof.
FISCAL PERIOD The period commencing on the Closing Date, 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 capital of the
Company is made pursuant to Section
5.1; or
(3) any day (other than one specified in
clause (2) above) as of which this
Agreement provides for any amount to be
credited to or debited against the
Capital Account of any Member, other
than an amount to be credited to or
debited against the Capital Accounts of
all Members in accordance with their
respective Investment Percentages.
FISCAL YEAR The period commencing on the Closing Date and
ending on December 31, 1999, and thereafter
each period commencing on January 1 of each
year and ending on December 31 of each year
(or on the date of a final distribution
pursuant to Section 6.2 hereof), unless the
Board of Managers shall elect another fiscal
year for the Company that is a permissible
taxable year under the Code.
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<PAGE> 27
FORM N-2 The Company's Registration Statement on Form N-2
filed with the Securities and Exchange
Commission, as amended from time to time.
INCENTIVE ALLOCATION With respect to each Member, 20% of the amount,
determined as of the close of each Allocation
Period with respect to such Member, by which
such Member's Positive Allocation Change for
such Allocation Period, if any, exceeds any
positive balance in such Member's Loss Recovery
Account as of the most recent prior date as of
which any adjustment has been made thereto.
INDEPENDENT MANAGERS Those Managers who are not "interested persons"
of the Company as such term is defined in the
1940 Act.
INSURANCE One or more "key man" insurance policies on the
life of any principal of a member of the
Adviser, the benefits of which are payable to
the Company.
INTEREST The entire ownership interest in the Company
at any particular time of a Member or the
Special Advisory Member, or other person to
whom an Interest of a Member or portion
thereof has been transferred pursuant to
Section 4.4 hereof, including the rights and
obligations of such Member or other person
under this Agreement and the Delaware Act.
INVESTMENT ADVISORY A separate written agreement entered into by
AGREEMENT the Company pursuant to which the Adviser
provides investment advisory services to the
Company.
INVESTMENT PERCENTAGE A percentage established for each Member on the
Company's books as of the first day of each
Fiscal Period. The Investment Percentage of a
Member for a Fiscal Period shall be determined
by dividing the balance of the Member's Capital
Account as of the commencement of such Fiscal
Period by the sum of the Capital Accounts of all
of the Members as of the commencement of such
Fiscal Period. The sum of the Investment
Percentages of all Members for each Fiscal
Period shall equal 100%.
LOSS RECOVERY ACCOUNT A memorandum account to be recorded in the books
and records of the Company with respect to each
Member, which shall have an initial balance of
zero and which shall be adjusted as follows:
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<PAGE> 28
(1) As of the first day after the close of
each Allocation Period for such Member,
the balance of the Loss Recovery
Account shall be increased by the
amount, if any, of such Member's
Negative Allocation Change for such
Allocation Period and shall be reduced
(but not below zero) by the amount, if
any, of such Member's Positive
Allocation Change for such Allocation
Period.
(2) The balance of the Loss Recovery
Account shall be reduced (but not below
zero) as of the first date as of which
the Capital Account balance of any
Member is reduced as a result of
repurchase or transfer with respect to
such Member's Interest by an amount
determined by multiplying (a) such
positive balance by (b) a fraction, (i)
the numerator of which is equal to the
amount of the repurchase or transfer,
and (ii) the denominator of which is
equal to the balance of such Member's
Capital Account immediately before
giving effect to such repurchase or
transfer.
No transferee of any Interest shall succeed to
any Loss Recovery Account balance or portion
thereof attributable to the transferor unless
the Transfer by which such transferee received
such Interest did not involve a change of
beneficial ownership.
MANAGER An individual designated as a manager of the
Company pursuant to the provisions of Section
2.6 of the Agreement and who serves on the
Board of Managers of the Company. The term
"Manager" shall also be deemed to refer to any
individual who served as an Individual General
Partner of the Partnership before the
Conversion.
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<PAGE> 29
MEMBER Any person who had been admitted as a limited
partner of the Partnership before the
Conversion whose Interest, pursuant to the
Conversion, has been converted to an Interest
as a member or who shall have been admitted to
the Company as a member (including any Manager
in such person's capacity as a member of the
Company but excluding any Manager in such
person's capacity as a Manager of the Company)
until the Company repurchases the entire
Interest of such person as a member pursuant
to Section 4.6 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; such term
includes the Adviser to the extent the Adviser
makes a capital contribution to the Company
and shall have been admitted to the Company as
a member, and shall not include the Special
Advisory Member.
NEGATIVE ALLOCATION The meaning given such term in the definition of
CHANGE Allocation Change.
NET ASSETS The total value of all assets of the Company,
less an amount equal to all accrued debts,
liabilities and obligations of the Company,
calculated before giving effect to any
repurchases of Interests.
NET PROFIT OR NET LOSS The amount by which the Net Assets as of the
close of business on the last day of a Fiscal
Period exceed (in the case of Net Profit) or
are less than (in the case of Net Loss) the
Net Assets as of the commencement of the same
Fiscal Period (or, with respect to the initial
Fiscal Period of the Company, at the close of
business on the Closing Date), such amount to
be adjusted to exclude:
(1) the amount of any Insurance premiums or
proceeds to be allocated among the
Capital Accounts of the Members
pursuant to Section 5.5 hereof;
(2) any items to be allocated among the
Capital Accounts of the Members on a
basis which is not in accordance with
the respective Investment Percentages
of all Members as of the commencement
of such Fiscal Period pursuant to
Sections 5.6 and 5.7 hereof; and
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<PAGE> 30
(3) Organizational Expenses allocated among
the Capital Accounts of the Members
pursuant to Section 5.9 hereof.
1940 ACT The Investment Company Act of 1940 and the
rules, regulations and orders thereunder, as
amended from time to time, or any successor
law.
1934 ACT The Securities Exchange Act of 1934 and the
rules, regulations and orders thereunder, as
amended from time to time, or any successor
law.
ORGANIZATIONAL EXPENSES The expenses incurred by the Company in
connection with its formation, its initial
registration as an investment company under the
1940 Act, and the initial offering of Interests.
ORGANIZATIONAL Jesse H. Ausubel
LIMITED PARTNER
ORGANIZATIONAL MEMBER Jesse H. Ausubel
PARTNERSHIP Wynstone Partners, L.P., a Delaware limited
partnership that was converted to the Company
effective [June 25, 1999].
POSITIVE ALLOCATION The meaning given such term in the definition of
CHANGE Allocation Change.
SECURITIES Securities (including, without limitation,
equities, debt obligations, options, and other
"securities" as that term is defined in
Section 2(a)(36) of the 1940 Act) and any
contracts for forward or future delivery of
any security, debt obligation or currency, or
commodity, all manner of derivative
instruments and any contracts based on any
index or group of securities, debt obligations
or currencies, or commodities, and any options
thereon.
SPECIAL ADVISORY ACCOUNT A capital account established and maintained on
behalf of the Special Advisory Member pursuant
to Section 5.3 hereof solely for the purpose of
receiving the Incentive Allocation.
SPECIAL ADVISORY MEMBER The Adviser in its capacity as the investment
adviser to the Company.
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<PAGE> 31
TRANSFER The assignment, transfer, sale, encumbrance,
pledge or other disposition of all or any
portion of an Interest, including any right to
receive any allocations and distributions
attributable to an Interest.
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<PAGE> 32
ARTICLE II
ORGANIZATION; ADMISSION OF MEMBERS
2.1 FORMATION OF LIMITED LIABILITY COMPANY.
The Board of Managers shall execute and file in accordance with the
Delaware Act any amendment to the Certificate and shall execute and file with
applicable governmental authorities any other instruments, documents and
certificates which, in the opinion of the Company'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 Company 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 Company.
2.2 NAME.
The name of the Company shall be "Wynstone Fund, L.L.C." or such
other name as the Board of Managers may hereafter 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.
2.3 PRINCIPAL AND REGISTERED OFFICE.
The Company shall have its principal office at One World Financial
Center, 31st Floor, 200 Liberty Street, New York, New York 10281, or at such
other place designated from time to time by the Board of Managers.
The Company shall have its registered office in Delaware at 1013
Centre Road, Wilmington, Delaware 19805-1297, and shall have Corporation Service
Company as its registered agent for service of process in Delaware, unless a
different registered office or agent is designated from time to time
by the Board of Managers.
2.4 DURATION.
The term of the Company commenced on August 13, 1998 and shall
continue until the Company is dissolved pursuant to Section 6.1 hereof.
2.5 OBJECTIVE AND BUSINESS OF THE COMPANY.
(a) The objective and business of the Company is to purchase, sell
(including short sales), invest and trade in Securities, on margin or otherwise,
and to engage in any financial or derivative transactions relating thereto or
otherwise. The Company may execute, deliver and
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<PAGE> 33
perform all contracts, agreements and other undertakings and engage in all
activities and transactions as may in the opinion of the Board of Managers be
necessary or advisable to carry out its objective or business.
(b) The Company shall operate as a closed-end, non-diversified,
management investment company in accordance with the 1940 Act and subject to any
fundamental policies and investment restrictions set forth in the Form N-2.
2.6 BOARD OF MANAGERS.
(a) The initial Board of Managers shall consist of those persons who
served as Individual General Partners of the Partnership immediately prior to
the Conversion, and those persons who shall have been elected to serve as a
Manager on the Board of Managers, subject to the effectiveness of the
Conversion, by the limited partners of the Partnership, who shall agree to be
bound by all of the terms of this Agreement to serve as Managers on the Board of
Managers, and whose status as Manager has not terminated pursuant to Section 4.2
hereof. The Board of Managers 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 Manager and the provisions of Section 3.3 hereof with respect to the
election of Managers to the Board of Managers by Members, designate any person
who shall agree to be bound by all of the terms of this Agreement as a Manager.
The names and mailing addresses of the Managers shall be set forth in the books
and records of the Company. The number of Managers shall be fixed from time to
time by the Board of Managers but shall not be less than three. At and after the
Closing Date, all of the Managers shall be Independent Managers.
(b) Each Manager shall serve on the Board of Managers for the
duration of the term of the Company, unless his status as a Manager shall be
sooner terminated pursuant to Section 4.2 hereof. In the event of any vacancy in
the position of Manager, the remaining Managers may appoint an individual to
serve in such capacity, so long as immediately after such appointment at least
two-thirds (2/3) of the Managers then serving would have been elected by the
Members. The Board of Managers may call a meeting of Members to fill any vacancy
in the position of Manager, and shall do so within 60 days after any date on
which Managers who were elected by the Members cease to constitute a majority of
the Managers then serving on the Board of Managers.
(c) In the event that no Manager remains to continue the business of
the Company, the Adviser shall promptly call a meeting of the Members, to be
held within 60 days after the date on which the last Manager ceased to act in
that capacity, for the purpose of determining whether to continue the business
of the Company and, if the business shall be continued, of electing the required
number of Managers to the Board of Managers. If the Members shall determine at
such meeting not to continue the business of the Company or if the required
number of Managers is not elected within 60 days after the date on which the
last Manager ceased to act in that capacity, then the Company shall be dissolved
pursuant to Section 6.1 hereof and the assets of the Company shall be liquidated
and distributed pursuant to Section 6.2 hereof.
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<PAGE> 34
2.7 MEMBERS.
The Board of Managers may admit one or more Members as of the
beginning of each calendar month or at such other times, but not more frequently
than monthly, as the Board of Managers may determine. Subject to the foregoing
terms, Members may be admitted to the Company subject to the condition that each
such Member shall execute an appropriate signature page of this Agreement or of
the Company's subscription agreement pursuant to which such Member agrees to be
bound by all the terms and provisions hereof. The Board of Managers may in its
absolute discretion reject subscriptions for Interests in the Company. The
admission of any person as a Member shall be effective upon the revision of the
books and records of the Company to reflect the name and the contribution to the
capital of the Company of such additional Member.
2.8 SPECIAL ADVISORY MEMBER.
Upon signing this Agreement, the Adviser shall be admitted to the
Company as the Special Advisory Member. The Interest of the Special Advisory
Member shall be non-voting. If at anytime the Investment Advisory Agreement
between the Company and the person then serving as Adviser terminates, the Board
of Managers shall admit as a substitute Special Advisory Member, upon its
signing this Agreement, such person as may be retained by the Company to provide
investment advisory services pursuant to an Investment Advisory Agreement,
subject to the due approval of such Investment Advisory Agreement in accordance
with the requirements of the 1940 Act.
2.9 ORGANIZATIONAL MEMBER.
Upon the admission of any Member, the Organizational Member shall
withdraw from the Company as the Organizational Member and shall be entitled to
the return of his Capital Contribution, if any, without interest or deduction.
2.10 BOTH MANAGERS AND MEMBERS.
A Member may at the same time be a Manager and a Member, or a
Special Advisory Member and 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 or as provided in the Delaware Act.
2.11 LIMITED LIABILITY.
Except as provided under applicable law, a Member and the Special
Advisory Member shall not be liable for the Company's debts, obligations and
liabilities in any amount in excess of the capital account balance of such
Member, plus such Member's share of undistributed profits and assets. Except as
provided under applicable law, a Manager shall not be liable for the Company's
debts, obligations and liabilities.
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<PAGE> 35
ARTICLE III
MANAGEMENT
3.1 MANAGEMENT AND CONTROL.
(a) Management and control of the business of the Company shall be
vested in the Board of Managers, which shall have the right, power and
authority, on behalf of the Company 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 Company and
their duties hereunder. No Manager shall have the authority individually to act
on behalf of or to bind the Company except within the scope of such Manager's
authority as delegated by the Board of Managers. The parties hereto intend that,
except to the extent otherwise expressly provided herein, (i) each Manager shall
be vested with the same powers, authority and responsibilities on behalf of the
Company as are customarily vested in each director of a Delaware corporation and
(ii) each Independent Manager shall be vested with the same powers, authority
and responsibilities on behalf of the Company 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 Company shall have no Managers, the Adviser shall continue
to serve as the Adviser to the Company. During such time period, CIBC WM shall
continue to provide the CIBC WM Services to the Company.
(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 Company. The Board of Managers shall have the exclusive authority and
discretion to make any elections required or permitted to be made by the Company
under any provisions of the Code or any other revenue laws.
(c) Members shall have no right to participate in and shall take no
part in the management or control of the Company's business and shall have no
right, power or authority to act for or bind the Company. 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 of Managers may delegate to any other person any
rights, power and authority vested by this Agreement in the Board of Managers to
the extent permissible under applicable law.
3.2 ACTIONS BY THE BOARD OF MANAGERS.
(a) Unless provided otherwise in this Agreement, the Board of
Managers shall act only: (i) by the affirmative vote of a majority of the
Managers (which majority shall include any
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requisite number of Independent Managers required by the 1940 Act) present at a
meeting duly called at which a quorum of the Managers shall be present (in
person or, if in person attendance is not required by the 1940 Act, by
telephone) or (ii) by unanimous written consent of all of the Managers without a
meeting, if permissible under the 1940 Act.
(b) The Board of Managers may designate from time to time a
Principal Manager who shall preside at all meetings. Meetings of the Board of
Managers may be called by the Principal Manager or by any two Managers, and may
be held on such date and at such time and place as the Board of Managers shall
determine. Each Manager shall be entitled to receive written notice of the date,
time and place of such meeting within a reasonable time in advance of the
meeting. Notice need not be given to any Manager who shall attend a meeting
without objecting to the lack of notice or who shall execute a written waiver of
notice with respect to the meeting. Managers may attend and participate in any
meeting by telephone except where in person attendance at a meeting is required
by the 1940 Act. A majority of the Managers shall constitute a quorum at any
meeting.
3.3 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 of Managers or by Members holding 25%
or more 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 of Managers shall determine.
The Board of Managers 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, except as otherwise required by
applicable law. Only matters set forth in the notice of a meeting may be voted
on by the Members at a meeting. The presence in person or by proxy of Members
holding 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 Managers and (ii) all other
actions of the Members taken at a meeting shall require the affirmative vote of
Members holding a majority of the total number of votes eligible to be cast by
those Members who are present in person or by proxy at such meeting.
(b) Each Member shall be entitled to cast at any meeting of Members
a number of votes equivalent to such Member's Investment Percentage as of the
record date for such meeting. The Board of Managers 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.
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(c) A Member may vote at any meeting of Members by a proxy properly
executed in writing by the Member and filed with the Company 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 Company 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 COMPANY.
The physical possession of all funds, Securities or other properties
of the Company shall at all times, be held, controlled and administered by one
or more custodians retained by the Company in accordance with the requirements
of the 1940 Act and the rules thereunder.
3.5 OTHER ACTIVITIES OF MEMBERS AND MANAGERS.
(a) The Managers shall not be required to devote full time to the
affairs of the Company, but shall devote such time as may reasonably be required
to perform their obligations under this Agreement.
(b) Any Member or Manager, and any Affiliate of any Member or
Manager, may engage in or possess an interest in other business ventures or
commercial dealings of every kind and description, independently or with others,
including, but not limited to, acquisition and disposition of Securities,
provision of investment advisory or brokerage services, serving as directors,
officers, employees, advisors 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 or Manager shall
have any rights in or to such activities of any other Member or Manager, or any
profits derived therefrom.
3.6 DUTY OF CARE.
(a) A Manager shall not be liable to the Company or to any of its
Members for any loss or damage occasioned by any act or omission in the
performance of his services under this Agreement, unless it shall be determined
by final judicial decision on the merits from which there is no further right to
appeal that such loss is due to an act or omission of such Manager constituting
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Manager's office.
(b) Members not in breach of any obligation hereunder or under any
agreement pursuant to which the Member subscribed for an Interest shall be
liable to the Company, any Member or third parties only as provided under the
Delaware Act.
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3.7 INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Company shall,
subject to Section 3.7(b) hereof, indemnify each Manager (including for this
purpose 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 a Manager of the Company or the past or present
performance of services to the Company 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 a Manager 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.
(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
Company 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 Company 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 Company 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 Managers
(excluding any Manager who is either seeking advancement of expenses hereunder
or is or has been a party to any other action, suit, investigation or proceeding
involving claims similar to those involved in the action, suit, investigation or
proceeding giving rise to a claim for advancement of expenses hereunder) or
independent legal counsel in a written opinion shall determine based on a review
of readily available facts (as opposed to a full trial-type inquiry) that there
is reason to believe such 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, or by
any other body before which the proceeding shall have been brought, that an
indemnitee is liable to the Company 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
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Section 3.7(a) hereof if (i) approved as in the best interests of the Company by
a majority of the Managers (excluding any Manager who is either seeking
indemnification hereunder or is or has been a party to any other action, suit,
investigation or proceeding involving claims similar to those involved in the
action, suit, investigation or proceeding giving rise to a claim for
indemnification hereunder) upon a determination based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that such indemnitee
acted in good faith and in the reasonable belief that such actions were in the
best interests of the Company and that such indemnitee is not liable to the
Company 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 Board of Managers secures a written opinion of
independent legal counsel based upon a review of readily available facts (as
opposed to a full trial-type inquiry) to the effect that such indemnification
would not protect such indemnitee against any liability to the Company or its
Members to which such indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of such indemnitee's 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 decision on the
merits in any action, suit, investigation or proceeding involving the liability
or expense that gave rise to such indemnification or advancement of expenses to
be liable to the Company 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 (i) any suit brought by a Manager (or
other person entitled to indemnification hereunder) to enforce a right to
indemnification under this Section 3.7 it shall be a defense that, and (ii) in
any suit in the name of the Company to recover any indemnification or
advancement of expenses made pursuant to this Section 3.7 the Company shall be
entitled to recover such expenses upon a final adjudication that, the Manager or
other person claiming a right to indemnification under this Section 3.7 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 Manager or other person claiming a right to
indemnification is not entitled to be indemnified, or to any indemnification or
advancement of expenses, under this Section 3.7 shall be on the Company (or any
Member acting derivatively or otherwise on behalf of the Company or its
Members).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 3.7 or to which he or it may
otherwise be entitled except out of the assets of the Company, 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 Company to purchase and maintain liability insurance on
behalf of any Manager or other person.
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3.8 FEES, EXPENSES AND REIMBURSEMENT.
(a) So long as CIBC WM provides CIBC WM Services to the Company, it
shall be entitled to receive fees for such services as may be agreed to by CIBC
WM and the Company pursuant to a separate written agreement.
(b) The Board of Managers may cause the Company to compensate each
Manager for his services as such. In addition, the Managers shall be reimbursed
by the Company for reasonable out-of-pocket expenses incurred by them in
performing their duties under this Agreement.
(c) The Company shall bear all expenses incurred in the business of
the Company other than those specifically required to be borne by the Adviser
pursuant to the Investment Advisory Agreement or by CIBC WM pursuant to the
agreement referred to in Section 3.8(a) hereof. Expenses to be borne by the
Company include, but are not limited to, the following:
(1) all costs and expenses related to portfolio transactions
and positions for the Company'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, taxes withheld on foreign dividends and
indirect expenses from investments in investment funds;
(2) all costs and expenses associated with the organization
and registration of the Company, certain offering costs
and the costs of compliance with any applicable federal
or state laws;
(3) Attorneys' fees and disbursements associated with
updating the Company's Confidential Memorandum and
subscription documents (the "Offering Materials"); the
costs of printing the Offering Materials; the costs of
distributing the Offering Materials to prospective
investors; and attorneys' fees and disbursements
associated with the review of subscription documents
executed and delivered to the Company in connection with
offerings of interests in the Company;
(4) the costs and expenses of holding meetings of the Board
of Managers and any meetings of Members;
(5) fees and disbursements of any attorneys, accountants,
auditors and other consultants and professionals engaged
on behalf of the Company;
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(6) the costs of a fidelity bond and any liability insurance
obtained on behalf of the Company or its Managers;
(7) any fees payable to CIBC WM for CIBC WM Services and the
fees of custodians and persons providing administrative
services to the Company;
(8) all expenses of computing the Company's net asset value,
including any equipment or services obtained for such
purposes;
(9) all charges for equipment or services used in
communicating information regarding the Company's
transactions among the Adviser and any custodian or
other agent engaged by the Company; and
(10) such other types of expenses as may be approved from
time to time by the Board of Managers, other than those
required to be borne by the Adviser or CIBC WM.
The Adviser shall be entitled to reimbursement from the Company for any of the
above expenses that it pays on behalf of the Company.
(d) Subject to procuring any required regulatory approvals, from
time to time the Company may, alone or in conjunction with other accounts for
which the Adviser, or any Affiliate of the Adviser, acts as general partner or
investment adviser, purchase Insurance in such amounts, from such insurers and
on such terms as the Board of Managers shall determine.
ARTICLE IV
TERMINATION OF STATUS OF ADVISER AND
MANAGERS, TRANSFERS AND REPURCHASES
4.1 TERMINATION OF STATUS OF THE ADVISER.
The status of the Adviser as the Special Advisory Member shall
terminate if the Investment Advisory Agreement with the Adviser terminates and
the Company does not enter into a new Investment Advisory Agreement with the
Adviser, effective as of the date of such termination.
4.2 TERMINATION OF STATUS OF A MANAGER.
The status of a Manager shall terminate if the Manager (i) shall
die; (ii) shall be adjudicated incompetent; (iii) shall voluntarily withdraw as
a Manager (upon not less than 90 days'
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prior written notice to the other Managers); (iv) shall be removed; (v) shall be
certified by a physician to be mentally or physically unable to perform his
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; (vii) shall have a
receiver appointed to administer the property or affairs of such Manager; or
(viii) shall otherwise cease to be a Manager of the Company under the Delaware
Act.
4.3 REMOVAL OF THE MANAGERS.
Any Manager may be removed either by (a) the vote or written consent
of at least two-thirds (2/3) of the Managers not subject to the removal vote or
(b) the vote or written consent of Members holding not less than two-thirds
(2/3) of the total number of votes eligible to be cast by all Members.
4.4 TRANSFER OF INTERESTS OF MEMBERS.
(a) An Interest of a Member may be Transferred only (i) by operation
of law pursuant to the death, bankruptcy, insolvency or dissolution of such
Member or (ii) with the written consent of the Board of Managers (which may be
withheld in its sole and absolute discretion); provided, however, that the Board
of Managers may not consent to any Transfer other than a Transfer (i) in which
the tax basis of the interest in the hands of the transferee is determined, in
whole or in part, by reference to its tax basis in the hands of the transferor
(e.g., certain Transfers to affiliates, gifts and contributions to family
partnerships), (ii) to members of the Member's immediate family (brothers,
sisters, spouse, parents and children), or (iii) a distribution from a qualified
retirement plan or an individual retirement account, unless it consults with
counsel to the Company and counsel to the Company confirms that such Transfer
will not cause the Company to be treated as a "publicly traded partnership"
taxable as a corporation.
(b) The Board of Managers may not consent to a Transfer of an
Interest or a portion thereof of a Member unless: (i) the person to whom such
Interest is Transferred (or each of such person's beneficial owners if such a
person is a "private investment company" as defined in paragraph (d)(3) of Rule
205-3 under the Advisers Act) is a person whom the Board of Managers believes
meets the requirements of paragraph (d)(1) of Rule 205-3 under the Advisers Act
or successor rule thereto; (ii) the entire Interest of the Member is Transferred
to a single transferee; and (iii) after the Transfer, the balance of the Capital
Account of the Transferee is not less than $150,000. Any transferee which
acquires an Interest by operation of law as the result of the death, bankruptcy,
insolvency or dissolution of a Member or otherwise, shall be entitled to the
allocations and distributions allocable to the Interest so acquired and to
Transfer such Interest in accordance with the terms of this Agreement, but shall
not be entitled to the other rights of a Member unless and until such transferee
becomes a substituted Member. If a Member transfers an Interest with the
approval of the Board of Managers, the Board of Managers shall promptly take all
necessary actions so that the transferee to whom such Interest is transferred is
admitted to the Company as a Member. Each Member effecting a Transfer and its
transferee agree to pay all expenses, including attorneys' and accountants'
fees, incurred by the Company in connection with such Transfer.
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(c) Each Member shall indemnify and hold harmless the Company, the
Managers, the Adviser, 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 TRANSFER OF INTERESTS OF SPECIAL ADVISORY MEMBER.
The Adviser may not Transfer its Interest as the Special Advisory
Member.
4.6 REPURCHASE OF INTERESTS.
(a) Except as otherwise provided in this Agreement, no Member or
other person holding an Interest or portion thereof shall have the right to
withdraw or tender to the Company for repurchase that Interest or portion
thereof. The Board of Managers from time to time, in its complete and exclusive
discretion and on such terms and conditions as it may determine, may cause the
Company to repurchase Interests or portions thereof pursuant to written tenders.
However, the Company shall not offer to repurchase Interests on more than two
occasions during any one Fiscal Year unless it has received an opinion of
counsel to the effect that such more frequent offers would not cause any adverse
tax consequences to the Company or the Members. In determining whether to cause
the Company to repurchase Interests or portions thereof pursuant to written
tenders, the Board of Managers shall consider the recommendation of the Adviser,
and shall also consider the following factors, among others:
(1) whether any Members have requested to tender Interests
or portions thereof to the Company;
(2) the liquidity of the Company's assets;
(3) the investment plans and working capital requirements of
the Company;
(4) the relative economies of scale with respect to the size
of the Company;
(5) the history of the Company in repurchasing Interests or
portions thereof;
(6) the economic condition of the securities markets; and
(7) the anticipated tax consequences of any proposed
repurchases of Interests or portions thereof.
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The Board of Managers shall cause the Company to repurchase Interests or
portions thereof pursuant to written tenders only on terms fair to the Company
and to all Members or one or more classes of Members (including persons holding
Interests acquired from Members), as applicable.
(b) A Member who tenders for repurchase only a portion of such
Member's Interest shall be required to maintain a Capital Account balance equal
to the greater of (i) $150,000, net of the Incentive Allocation, if any, that
would be debited against such Capital Account if the date of repurchase of such
Interest or portion thereof were a date on which an Incentive Allocation would
otherwise be made (the "Tentative Incentive Allocation") or (ii) the amount of
the Tentative Incentive Allocation.
(c) The Adviser may tender its Interest or a portion thereof as a
Member or Special Advisory Member of the Company under Section 4.6(a) hereof.
(d) If the Adviser's status as Special Advisory Member is terminated
pursuant to Section 4.1 hereof, it (or its trustee or other legal
representative) may, by written notice to the Board of Managers within 60 days
of the effective date of such termination, tender to the Company for repurchase
all or any portion of its Special Advisory Account. Not later than thirty (30)
days after the receipt of such notice, the Board of Managers shall cause such
tendered portion of the Special Advisory Account to be repurchased by the
Company for cash.
(e) The Board of Managers may cause the Company to repurchase an
Interest or portion thereof of a Member or any person acquiring an Interest or
portion thereof from or through a Member in the event that the Board of Managers
determines or has reason to believe that:
(1) such an Interest or portion thereof has been transferred
in violation of Section 4.4 hereof, or such an Interest
or portion thereof has vested in any person by operation
of law as the result of the death, dissolution,
bankruptcy or incompetency of a Member;
(2) ownership of such an Interest by a Member or other
person will cause the Company to be in violation of, or
require registration of any Interest or portion thereof
under, or subject the Company to additional registration
or regulation under, the securities laws of the United
States or any other relevant jurisdiction;
(3) continued ownership of such an Interest may be harmful
or injurious to the business or reputation of the
Company, the Managers or the Adviser, or may subject the
Company or any of the Members to an undue risk of
adverse tax or other fiscal consequences;
(4) any of the representations and warranties made by a
Member in connection with the acquisition of an Interest
or portion thereof was not true when made or has ceased
to be true; or
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(5) it would be in the best interests of the Company, as
determined by the Board of Managers in its absolute
discretion, for the Company to repurchase such an
Interest or portion thereof.
(f) Repurchases of Interests or portions thereof by the Company
shall be payable promptly after the expiration date of such repurchase in
accordance with the terms of the Company's repurchase offer. Payment of the
purchase price shall consist of: (i) cash in an aggregate amount equal to such
percentage, as may be determined by the Board of Managers, of the estimated
unaudited net asset value of Interests repurchased by the Company determined as
of the expiration date of such repurchase (the "Cash Payment"); and, if
determined to be necessary or appropriate by the Board of Managers, (ii) a
promissory note entitling the holder thereof to a contingent payment equal to
the excess, of any, of (x) the net asset value of the Interests repurchased by
the Company as of the expiration date of such repurchases, determined based on
the audited financial statements of the Company for the Fiscal Year in which
such repurchases were effective, over (y) the Cash Payment. Notwithstanding
anything in the foregoing to the contrary, the Board of Managers, in its
discretion, may pay any portion of the purchase price in marketable Securities
(or any combination of marketable Securities and cash) having a value,
determined as of the date of repurchase, equal to the amount to be repurchased.
All such repurchases shall be subject to any and all conditions as the Board of
Managers may impose in its sole discretion. The amount due to any Member whose
Interest or portion thereof is repurchased shall be equal to the value of such
Member's Capital Account or portion thereof as applicable as of the effective
date of repurchase, after giving effect to all allocations to be made to such
Member's Capital Account as of such date.
ARTICLE V
CAPITAL
5.1 CONTRIBUTIONS TO CAPITAL.
(a) The minimum initial contribution of each Member to the capital
of the Company shall be such amount as the Board of Managers, in its discretion,
may determine from time to time, but in no event shall be less than $150,000.
The amount of the initial contribution of each Member shall be recorded on the
books and records of the Company upon acceptance as a contribution to the
capital of the Company. The Managers shall not be entitled to make voluntary
contributions of capital to the Company as Managers of the Company, but may make
voluntary contributions to the capital of the Company as Members. The Adviser
may make voluntary contributions to the capital of the Company as a Member.
(b) The Members and the Adviser, as a Member, may make additional
contributions to the capital of the Company of at least $25,000, effective as of
such times as the Board of Managers, in its discretion, may permit, subject to
Section 2.7 hereof, but no Member
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shall be obligated to make any additional contribution to the capital of the
Company except to the extent provided in Section 5.7 hereof.
(c) Except as otherwise permitted by the Board of Managers, (i)
initial and any additional contributions to the capital of the Company by any
Member shall be payable in cash or in such Securities that the Board of
Managers, in its absolute discretion, may agree to accept on behalf of the
Company, and (ii) initial and any additional contributions in cash shall be
payable in readily available funds at the date of the proposed acceptance of the
contribution. The Company shall charge each Member making a contribution in
Securities to the capital of the Company such amount as may be determined by the
Board of Managers not exceeding 2% of the value of such contribution in order to
reimburse the Company for any costs incurred by the Company by reason of
accepting such Securities, and any such charge shall be due and payable by the
contributing Member in full at the time the contribution to the capital of the
Company to which such charges relate is due. The value of contributed Securities
shall be determined in accordance with Section 7.3 hereof as of the date of
contribution.
(d) The minimum initial and additional contributions set forth in
(a) and (b) of this Section 5.1 may be reduced by the Board of Managers.
5.2 RIGHTS OF MEMBERS TO CAPITAL.
No Member shall be entitled to interest on his contribution to the
capital of the Company, nor shall any Member be entitled to the return of any
capital of the Company except (i) upon the repurchase by the Company of a part
or all of such Member's Interest pursuant to Section 4.6 hereof, (ii) pursuant
to the provisions of Section 5.7(c) hereof or (iii) upon the liquidation of the
Company'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 Company's property or to compel any sale or appraisal of the
Company's assets.
5.3 CAPITAL ACCOUNTS.
(a) The Company shall maintain a separate Capital Account for each
Member.
(b) Each Member's Capital Account shall have an initial balance
equal to the amount of cash and the value of any Securities (determined in
accordance with Section 7.3 hereof) constituting such Member's initial
contribution to the capital of the Company, or, in the case of Members who were
limited partners of the Partnership before the Conversion, such Member's initial
contribution to the capital of the Partnership.
(c) Each Member's Capital Account shall be increased by the sum of
(i) the amount of cash and the value of any Securities (determined in accordance
with Section 7.3 hereof) constituting additional contributions by such Member to
the capital of the Company permitted pursuant to Section 5.1 hereof, plus (ii)
all amounts credited to such Member's Capital Account pursuant to Sections 5.4
through 5.7 or 5.9 hereof.
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(d) Each Member's Capital Account shall be reduced by the sum of (i)
the amount of any repurchase of the Interest, or portion thereof, of such Member
or distributions to such Member pursuant to Sections 4.6, 5.11 or 6.2 hereof
which are not reinvested, plus (ii) any amounts debited against such Capital
Account pursuant to Sections 5.4 through 5.9 hereof.
(e) The Company shall maintain a Special Advisory Account for the
Adviser in its capacity as Special Advisory Member solely for purposes of
receiving the Incentive Allocation pursuant to Section 5.8 hereof. The Special
Advisory Account shall have an initial balance of zero.
5.4 ALLOCATION OF NET PROFIT AND LOSS.
As of the last day of each Fiscal Period, any Net Profit or Net Loss
for the Fiscal Period shall be allocated among and credited to or debited
against the Capital Accounts of the Members in accordance with their respective
Investment Percentages for such Fiscal Period.
5.5 ALLOCATION OF INSURANCE PREMIUMS AND PROCEEDS.
(a) Any premiums payable by the Company for Insurance purchased
pursuant to Section 3.8(d) hereof shall be apportioned evenly over each Fiscal
Period or portion thereof falling within the period to which such premiums
relate under the terms of such Insurance, and the portion of the premiums so
apportioned to any Fiscal Period shall be allocated among and debited against
the Capital Accounts of each Member who is a member of the Company during such
Fiscal Period in accordance with such Member's Investment Percentage for such
Fiscal Period.
(b) Proceeds, if any, to which the Company may become entitled
pursuant to such Insurance shall be allocated among and credited to the Capital
Accounts of each Member who is a member of the Company during the Fiscal Period
in which the event which gives rise to recovery of proceeds occurs in accordance
with such Member's Investment Percentage for such Fiscal Period.
5.6 ALLOCATION OF CERTAIN WITHHOLDING TAXES AND OTHER EXPENDITURES.
(a) If the Company incurs a withholding tax or other tax obligation
with respect to the share of Company income allocable to any Member, then the
Board of Managers, without limitation of any other rights of the Company or the
Managers, shall cause the amount of such obligation to be debited against the
Capital Account of such Member when the Company pays such obligation, and any
amounts then or thereafter distributable to such Member shall be reduced by the
amount of such taxes. If the amount of such taxes is greater than any such
distributable amounts, then such Member and any successor to such Member's
Interest shall pay to the Company as a contribution to the capital of the
Company, upon demand of the Board of Managers, the amount of such excess. The
Board of Managers 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; provided, that in the event that the Board of
Managers determines that a Member is eligible for a refund of any withholding
tax, the Board of Managers may, at the request and expense of such Member,
assist such Member in applying for such refund.
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(b) Except as otherwise provided for in this Agreement and unless
prohibited by the 1940 Act, any expenditures payable by the Company, to the
extent determined by the Board of Managers to have been paid or withheld on
behalf of, or by reason of particular circumstances applicable to, one or more
but fewer than all of the Members, shall be charged to only those Members on
whose behalf such payments are made or whose particular circumstances gave rise
to such payments. Such charges shall be debited from the Capital Accounts of
such Members as of the close of the Fiscal Period during which any such items
were paid or accrued by the Company.
5.7 RESERVES.
(a) Appropriate reserves may be created, accrued and charged against
Net Assets and proportionately against the Capital Accounts of the Members for
contingent liabilities, if any, as of the date any such contingent liability
becomes known to the Adviser or the Board of Managers, such reserves to be in
the amounts which the Board of Managers, in its sole discretion, deems necessary
or appropriate. The Board of Managers may increase or reduce any such reserves
from time to time by such amounts as the Board of Managers, in its sole
discretion, deems necessary or appropriate. The amount of any such reserve, or
any increase or decrease therein, shall be proportionately charged or credited,
as appropriate, to the Capital Accounts of those parties who are Members at the
time when such reserve is created, increased or decreased, as the case may be;
provided, however, that if any such individual reserve item, adjusted by any
increase therein, exceeds the lesser of $500,000 or 1% of the aggregate value of
the Capital Accounts of all such Members, the amount of such reserve, increase,
or decrease shall instead be charged or credited to those parties who were
Members at the time, as determined by the Board of Managers, in its sole
discretion, of the act or omission giving rise to the contingent liability for
which the reserve was established, increased or decreased in proportion to their
Capital Accounts at that time.
(b) If at any time an amount is paid or received by the Company
(other than contributions to the capital of the Company, distributions or
repurchases of Interests or portions thereof) and such amount exceeds the lesser
of $500,000 or 1% of the aggregate value of the Capital Accounts of all Members
at the time of payment or receipt and such amount was not accrued or reserved
for but would nevertheless, in accordance with the Company's accounting
practices, be treated as applicable to one or more prior Fiscal Periods, then
such amount shall be proportionately charged or credited, as appropriate, to
those parties who were Members during such prior Fiscal Period or Periods.
(c) If any amount is required by paragraph (a) or (b) of this
Section 5.7 to be charged or credited to a party who is no longer a Member, such
amount shall be paid by or to such party, as the case may be, in cash, with
interest from the date on which the Board of Managers determines that such
charge or credit is required. In the case of a charge, the former Member shall
be obligated to pay the amount of the charge, plus interest as provided above,
to the Company on demand; provided, however, that (i) in no event shall a former
Member be obligated to make a payment exceeding the amount of such Member's
Capital Account at the time to which the charge relates; and (ii) no such demand
shall be made after the expiration of three years since the date on which such
party ceased to be a Member. To the extent that a former Member fails to pay to
the Company, in full, any amount required to be charged to such former Member
pursuant to paragraph
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(a) or (b), whether due to the expiration of the applicable limitation period or
for any other reason whatsoever, the deficiency shall be charged proportionately
to the Capital Accounts of the Members at the time of the act or omission giving
rise to the charge to the extent feasible, and otherwise proportionately to the
Capital Accounts of the current Members.
5.8 INCENTIVE ALLOCATION.
(a) So long as the Adviser serves as the Special Advisory Member of
the Company, the Incentive Allocation shall be debited against the Capital
Account of each Member as of the last day of each Allocation Period with respect
to such Member and the amount so debited shall simultaneously be credited to the
Special Advisory Account or, subject to compliance with the 1940 Act and the
Advisers Act, to the Capital Accounts of such Members who are directors,
officers or employees of CIBC WM or its Affiliates, or with respect to which
such directors, officers or employees are the sole beneficial owners, as have
been designated in any written notice delivered by the Adviser to the Board of
Managers within 90 days after the close of such Allocation Period.
(b) By the last business day of the month following the date on
which an Incentive Allocation is made, the Special Advisory Member may withdraw
up to 100% of the Incentive Allocation (computed on the basis of unaudited data)
that was credited to the Special Advisory Account. Within 30 days after the
completion of the audit of the books of the Company for the year in which
allocations to the Special Advisory Account are made, the Company shall pay to
the Special Advisory Member any additional amount of Incentive Allocation
determined to be owed to the Special Advisory Member based on the audit, and the
Special Advisory Member shall pay to the Company any excess amount of Incentive
Allocation determined to be owed to the Company.
5.9 ALLOCATION OF ORGANIZATIONAL EXPENSES.
(a) As of the first Expense Allocation Date, Organizational Expenses
shall be allocated among and debited against the Capital Accounts of the Members
in accordance with their respective Capital Percentages on such Expense
Allocation Date.
(b) As of each Expense Allocation Date following the first Expense
Allocation Date, all amounts previously debited against the Capital Account of a
Member pursuant to this Section 5.9 on the preceding Expense Allocation Date
will be credited to the Capital Account of such Member, and Organizational
Expenses shall then be re-allocated among and debited against the Capital
Accounts of all Members in accordance with their respective Capital Percentages
on such Expense Allocation Date.
5.10 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 5.10 shall be made pursuant to the
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principles of Sections 704(b) and 704(c) of the Code, and in conformity with
Regulations Sections 1.704-1(b)(2)(iv)(f), 1.704-1(b)(4)(i) and 1.704-3(e)
promulgated thereunder, as applicable, or the successor provisions to such
Section 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).
If the Company realizes capital gains (including short-term capital
gains) for Federal income tax purposes ("gains") for any fiscal year during or
as of the end of which one or more Positive Basis Members (as hereinafter
defined) withdraw from the Company pursuant to Articles IV or VI, the Board of
Managers, unless otherwise determined by the Board of Managers, in its sole
discretion, shall allocate such gains as follows: (i) to allocate such gains
among such Positive Basis Members, pro rata in proportion to the respective
Positive Basis (as hereinafter defined) of each such Positive Basis Member,
until either the full amount of such gains shall have been so allocated or the
Positive Basis of each such Positive Basis Member shall have been eliminated and
(ii) to allocate any gains not so allocated to Positive Basis Members to the
other Members in such manner as shall equitably reflect the amounts allocated to
such Members' Capital Accounts pursuant to Section 5.3; provided, however, that
if, following such fiscal year, the Company realizes gains from a sale of
Securities the proceeds of which are designated on the Company's books and
records as being used to effect payments of all or part of the interest in the
Company of any Positive Basis Member, there shall be allocated to any Positive
Basis Member an amount of such gains equal to the amount, if any, by which his
or its Positive Basis as of the effective date of his or its withdrawal exceeds
the amount allocated to him or it pursuant to clause (i) of this sentence.
If the Company realizes capital losses (including long-term capital
losses) for Federal income tax purposes ("losses") for any fiscal year during or
as of the end of which one or more Negative Basis Members (as hereinafter
defined) withdraw from the Company pursuant to Articles IV or VI, the Board of
Managers, unless otherwise determined by the Board of Managers, in its sole
discretion, shall allocate such losses as follows: (i) to allocate such losses
among such Negative Basis Members, pro rata in proportion to the respective
Negative Basis (as hereinafter defined) of each such Negative Basis Member,
until either the full amount of such losses shall have been so allocated or the
Negative Basis of each such Negative Basis Member shall have been eliminated and
(ii) to allocate any losses not so allocated to Negative Basis Members to the
other Members in such manner as shall equitably reflect the amounts allocated to
such Members' Capital Accounts pursuant to Section 5.3; provided, however, that
if, following such fiscal year, the Company realizes losses from a sale of
Securities the proceeds of which are designated on the Company's books and
records as being used to effect payments of all or part of the interest in the
Company of any Negative Basis Member, there shall be allocated to any Negative
Basis Member an amount of such losses equal to the amount, if any by which his
or its Negative Basis as of the effective date of his or its withdrawal exceeds
the amount allocated to him or it pursuant to clause (i) of this sentence.
As used herein, (i) the term "Positive Basis" shall mean, with
respect to any Member and as of any time of calculation, the amount by which its
interest in the Company as of such time exceeds its "adjusted tax basis," for
Federal income tax purposes, in its interest in the
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Company as of such time (determined without regard to any adjustments made to
such "adjusted tax basis" by reason of any transfer or assignment of such
interest, including by reason of death, and without regard to such Member's
share of the liabilities of the Company under Section 752 of the Code), and (ii)
the term "Positive Basis Member" shall mean any Member who withdraws from the
Company and who has Positive Basis as of the effective date of its withdrawal,
but such Member shall cease to be a Positive Basis Member at such time as it
shall have received allocations pursuant to clause (i) of the second paragraph
of this Section 5.10 equal to its Positive Basis as of the effective date of its
withdrawal.
As used herein, (i) the term "Negative Basis" shall mean, with
respect to any Member and as of any time of calculation, the amount by which its
interest in the Company as of such time is less than its "adjusted tax basis,"
for Federal income tax purposes, in its interest in the Company as of such time
(determined without regard to any adjustments made to such "adjusted tax basis"
by reason of any transfer or assignment of such interest, including by reason of
death, and without regard to such Member's share of the liabilities of the
Company under Section 752 of the Code), and (ii) the term "Negative Basis
Member" shall mean any Member who withdraws from the Company and who has
Negative Basis as of the effective date of its withdrawal, but such Member shall
cease to be a Negative Basis Member at such time as it shall have received
allocations pursuant to clause (i) of the third paragraph of this Section. 5.10
equal to its Negative Basis as of the effective date of its withdrawal.
Notwithstanding anything to the contrary in the foregoing, if the
Company realizes taxable gains in any fiscal year with respect to which the
Special Advisory Member is entitled to an Incentive Allocation under Section 5.8
hereof, the Board of Managers (at the request of the Special Advisory Member)
may specially allocate such gains to the Special Advisory Member in an amount by
which the Incentive Allocation exceeds the Special Advisory Member's "adjusted
tax basis" (determined without regard to any allocation to be made pursuant to
this paragraph) in its interest in the Company as of the time it withdraws such
Incentive Allocation. The Special Advisory Member's "adjusted tax basis", for
these purposes, shall be increased by any amount of the Incentive Allocation
withdrawal which it elects to contribute as a Member to the Company as of the
date of the withdrawal of the Incentive Allocation.
5.11 DISTRIBUTIONS.
(a) The Board of Managers, in its sole discretion, may authorize the
Company to make distributions in cash at any time to all of the Members on a pro
rata basis in accordance with the Members' Investment Percentages.
(b) The Board of Managers may withhold taxes from any distribution
to any Member to the extent required by the Code or any other applicable law.
For purposes of this Agreement, any taxes so withheld by the Company with
respect to any amount distributed by the Company 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.
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5.12 FOREIGN WITHHOLDING.
Notwithstanding any provision of this Agreement to the contrary, the
Board of Managers shall withhold and pay over to the Internal Revenue Service,
pursuant to Section 1441, 1442, 1445 or 1446 of the Code, or any successor
provisions, at such times as required by such Sections, such amounts as the
Company is required to withhold under such Sections, as from time to time are in
effect. To the extent that a foreign Member claims to be entitled to a reduced
rate of, or exemption from, U.S. withholding tax pursuant to an applicable
income tax treaty, or otherwise, the foreign Member shall furnish the Board of
Managers with such information and forms as such foreign 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 foreign Member
represents and warrants that any such information and forms furnished by such
foreign Member shall be true and accurate and agrees to indemnify the Company
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.
Any amount of withholding taxes withheld and paid over by the
Board of Managers with respect to a foreign Member's distributive share of the
Company's gross income, income or gain shall be treated as a distribution to
such foreign Member and shall be charged against the Capital Account of such
foreign Member.
ARTICLE VI
DISSOLUTION AND LIQUIDATION
6.1 DISSOLUTION.
The Company shall be dissolved:
(1) upon the affirmative vote to dissolve the Company by:
(i) the Board of Managers 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 Manager
at a meeting called by the Adviser in accordance with
Section 2.6(c) hereof when no Manager remains to
continue the business of the Company;
(3) upon the expiration of any two year period which
commences on the date on which any Member has submitted
a written notice to the Company requesting to tender its
entire Interest for repurchase by the Company if such
Interest has not been repurchased by the Company;
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(4) as required by operation of law.
Dissolution of the Company shall be effective on the later of 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 of Managers and Members may
elect to continue the business of the Company as provided above, but the Company
shall not terminate until the assets of the Company have been liquidated in
accordance with Section 6.2 hereof and the Certificate has been canceled.
6.2 LIQUIDATION OF ASSETS.
(a) Upon the dissolution of the Company as provided in Section 6.1
hereof, the Board of Managers shall promptly appoint the Administrator as the
liquidator and the Administrator shall liquidate the business and administrative
affairs of the Company, except that if the Board of Managers does not appoint
the Administrator as the liquidator or the Administrator 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 Company. Net Profit and Net Loss
during the period of liquidation shall be allocated pursuant to Section 5.4
hereof. The proceeds from liquidation (after establishment of appropriate
reserves for contingencies in such amount as the Board of Managers or liquidator
shall deem appropriate in its sole discretion as applicable) shall be
distributed in the following manner:
(1) the debts of the Company, other than debts, liabilities
or obligations to Members, and the expenses of
liquidation (including legal and accounting expenses
incurred in connection therewith), up to and including
the date that distribution of the Company'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 next be paid in their order of
seniority and on a pro rata basis;
(3) The Special Advisory Member shall next be paid any
balance in the Special Advisory Account after giving
effect to the Incentive Allocation, if any, to be made
pursuant to Section 5.8 hereof; and
(4) the Members shall next be paid 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, upon dissolution of the Company, the Board of Managers or
other liquidator may distribute ratably in kind any assets of the Company;
provided, however, that if any in-kind distribution is to be made (i) the
assets distributed in kind shall be valued pursuant to Section 7.3 hereof as
of the actual date of their distribution and charged as so valued and
distributed against amounts to be paid under Section
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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 AND REPORTS.
(a) The Company shall adopt for tax accounting purposes any
accounting method which the Board of Managers shall decide in its sole
discretion is in the best interests of the Company. The Company's accounts shall
be maintained in U.S. currency.
(b) After the end of each taxable year, the Company shall furnish to
each Member such information regarding the operation of the Company and such
Member's Interest as is necessary for Members to complete federal, state and
local income tax or information returns and any other tax information required
by federal, state or local law.
(c) Except as otherwise required by the 1940 Act, or as may
otherwise be permitted by rule, regulation or order, within 60 days after the
close of the period for which a report required under this Section 7.1(c) is
being made, the Company shall furnish to each Member a semi-annual report and an
annual report containing the information required by such Act. The Company 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 Company may furnish to each Member such other periodic reports as it deems
necessary or appropriate in its discretion.
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS.
(a) All matters concerning the determination and allocation among
the Members of the amounts to be determined and allocated pursuant to Article V
hereof, including any taxes thereon and accounting procedures applicable
thereto, shall be determined by the Board of Managers unless specifically and
expressly otherwise provided for by the provisions of this Agreement or required
by law, and such determinations and allocations shall be final and binding on
all the Members.
(b) The Board of Managers may make such adjustments to the
computation of Net Profit or Net Loss, the Allocation Change with respect to any
Member, or any components comprising any of the foregoing as it considers
appropriate to reflect fairly and accurately the financial results of the
Company and the intended allocation thereof among the Members.
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7.3 VALUATION OF ASSETS.
(a) Except as may be required by the 1940 Act, the Board of Managers
shall value or have valued any Securities or other assets and liabilities of the
Company as of the close of business on the last day of each Fiscal Period in
accordance with such valuation procedures as shall be established from time to
time by the Board of Managers and which conform to the requirements of the 1940
Act. In determining the value of the assets of the Company, no value shall be
placed on the goodwill or name of the Company, or the office records, files,
statistical data or any similar intangible assets of the Company not normally
reflected in the Company's accounting records, but there shall be taken into
consideration any items of income earned but not received, expenses incurred but
not yet paid, liabilities, fixed or contingent, and any other prepaid expenses
to the extent not otherwise reflected in the books of account, and the value of
options or commitments to purchase or sell Securities or commodities pursuant to
agreements entered into prior to such valuation date.
(b) The value of Securities and other assets of the Company and the
net worth of the Company as a whole determined pursuant to this Section 7.3
shall be conclusive and binding on all of the Members and all parties claiming
through or under them.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT.
(a) Except as otherwise provided in this Section 8.1, this Agreement
may be amended, in whole or in part, with: (i) the approval of the Board of
Managers (including the vote of a majority of the Independent Managers, if
required by the 1940 Act) and (ii) if required by the 1940 Act, the approval of
the Members by such vote as is required by the 1940 Act.
(b) Any amendment that would:
(1) increase the obligation of a Member to make any
contribution to the capital of the Company;
(2) reduce the Capital Account of a Member or Special
Advisory Account other than in accordance with Article
V; or
(3) modify the events causing the dissolution of the
Company;
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
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amendment has been afforded a reasonable opportunity (pursuant to such
procedures as may be prescribed by the Board of Managers) to tender his entire
Interest for repurchase by the Company.
(c) The power of the Board of Managers to amend this Agreement at
any time without the consent of the other Members as set forth in paragraph (a)
of this Section 8.1 shall specifically include the power to:
(1) restate this Agreement together with any amendments
hereto which have been duly adopted in accordance
herewith 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,
including but not limited to, to satisfy the
requirements, or to reflect any relaxation of such
requirements in the future, of the Bank Holding Company
Act or other U.S. or Canadian banking laws, or any
regulations, guidelines or policies or interpretations
of the banking regulatory agencies or the staff thereof,
or to cure any ambiguity or to correct or supplement any
provision hereof which 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 advisable to ensure that the Partnership
will not be treated as an association taxable as a
corporation or as a publicly traded partnership as
defined in Section 7704(b) of the Code.
(d) The Board of Managers shall cause written notice to be given of
any amendment to this Agreement (other than any amendment of the type
contemplated by clause (1) of Section 8.1(c) hereof) to each Member, which
notice shall set forth (i) the text of the amendment or (ii) a summary thereof
and a statement that the text thereof will be furnished to any Member upon
request.
8.2 SPECIAL POWER OF ATTORNEY.
(a) Each Member hereby irrevocably makes, constitutes and appoints
each Manager, acting severally, and any liquidator of the Company's assets
appointed pursuant to Section 6.2 hereof with full power of substitution, the
true and lawful representatives and attorneys-in-fact of, and in the name, place
and stead of, such Member, with the power from time to time to make, execute,
sign, acknowledge, swear to, verify, deliver, record, file and/or publish:
(1) any amendment to this Agreement which complies with the
provisions of this Agreement (including the provisions
of Section 8.1 hereof);
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(2) any amendment to the Certificate required because this
Agreement is amended, including, without limitation, an
amendment to effectuate any change in the membership of
the Company; and
(3) all such other instruments, documents and certificates
which, in the opinion of legal counsel to the Company,
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 Company 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 Company 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 Company without such Member's
consent. If an amendment to the Certificate or this Agreement or any action by
or with respect to the Company is taken in the manner contemplated by this
Agreement, each Member agrees that, notwithstanding any objection which 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 Company.
(c) This power-of-attorney is a special power-of-attorney and is
coupled with an interest in favor of each of the Managers and 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 Company or Board of Managers
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 of Managers for admission to the
Company 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 of Managers to execute, acknowledge and file any
instrument necessary to effect such substitution.
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8.3 NOTICES.
Notices which may or are required to be provided under this
Agreement shall be made, if to a Member, by regular mail, or if to the Board of
Managers or the Adviser, by hand delivery, registered or certified mail return
receipt requested, commercial courier service, telex or telecopier, and shall be
addressed to the respective parties hereto at their addresses as set forth in
the books and records of the Company. 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 or telecopier. A document that is not a notice and that is
required to be provided under this Agreement by any party to another party may
be delivered by any reasonable means.
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors, 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 which 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 Company'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.
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
such State.
(b) UNLESS OTHERWISE AGREED IN WRITING, EACH MEMBER AND THE SPECIAL
ADVISORY MEMBER AGREE TO SUBMIT ALL CONTROVERSIES ARISING BETWEEN MEMBERS OR ONE
OR MORE MEMBERS OR THE SPECIAL ADVISORY MEMBER AND THE COMPANY TO ARBITRATION IN
ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW AND UNDERSTANDS THAT:
(1) ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
(2) THEY ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO A JURY TRIAL;
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(3) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED 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) THE 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 OR THE SPECIAL ADVISORY MEMBER AND THE COMPANY 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
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. (THE "NASD"), AS THE MEMBER OR
SPECIAL ADVISORY MEMBER OR ENTITY INSTITUTING THE ARBITRATION MAY ELECT. IF THE
NYSE OR NASD 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
THEM.
(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 UNTIL: (i) THE CLASS
CERTIFICATION IS DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE MEMBER
IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH 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, Managers, the
Special Advisory Member and the Company. This Agreement is not intended for the
benefit of non-Member creditors and no rights are granted to non-Member
creditors under this Agreement.
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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 Company.
8.9 MERGER AND CONSOLIDATION.
(a) The Company may merge or consolidate with or into one or more
limited liability companies formed under the Delaware Act or other business
entities 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.
(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(f) of the Delaware Act, (i) effect any amendment to this
Agreement, (ii) effect the adoption of a new limited liability company agreement
for the Company if it is the surviving or resulting limited liability company in
the merger or consolidation, or (iii) provide that the limited liability company
agreement of any other constituent limited liability company to the merger or
consolidation (including a limited liability company formed for the purpose of
consummating the merger or consolidation) shall be the limited liability company
agreement of the surviving or resulting limited liability company.
8.10 PRONOUNS.
All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the person or persons, firm or
corporation may require in the context thereof.
8.11 CONFIDENTIALITY.
(a) A Member may obtain from the Company such information regarding
the affairs of the Company 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 of Managers.
(b) Each Member covenants that, except as required by applicable law
or any regulatory body, it will not divulge, furnish or make accessible to any
other person the name and/or address (whether business, residence or mailing) of
any Member (collectively, "Confidential Information") without the prior written
consent of the Board of Managers, which consent may be withheld in its sole
discretion.
(c) Each Member recognizes that in the event that this Section 8.11
is breached by any Member or any of its principals, partners, members,
directors, officers, employees or agents or any of its affiliates, including any
of such affiliates' principals, partners, members, directors, officers,
employees or agents, irreparable injury may result to the non-breaching Members
and the Company. Accordingly, in addition to any and all other remedies at law
or in equity to which the non-breaching Members and the
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Company may be entitled, such Members shall also 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 Company determines that any of the other Members
or any of its principals, partners, members, directors, officers, 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.
8.12 CERTIFICATION OF NON-FOREIGN STATUS.
Each Member or transferee of an Interest from a Member shall
certify, upon admission to the Company and at such other times thereafter as the
Board of Managers may request, whether he is a "United States Person" within the
meaning of Section 7701(a)(30) of the Code on forms to be provided by the
Company, and shall notify the Company 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 of Managers may be treated as a non-United
States Person for purposes of U.S. federal tax withholding.
8.13 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).
8.14 FILING OF RETURNS.
The Board of Managers or its designated agent shall prepare and
file, or cause the accountants of the Company to prepare and file, a Federal
information tax return in compliance with Section 6031 of the Code and any
required state and local income tax and information returns for each tax year of
the Company.
8.15 TAX MATTERS PARTNER.
(a) A Manager who is a Member shall be designated on the Company's
annual Federal income tax return, and have full powers and responsibilities, as
the Tax Matters Partner of the Company for purposes of Section 6231(a)(7) of the
Code. In the event that no Manager is a Member, a Member shall be so designated.
Should any Member be designated as the Tax Matters Partner for the Company
pursuant to Section 6231(a)(7) of the Code, it shall, and each Member hereby
does, to the fullest extent permitted by law, delegate to a Manager selected by
the Board of Managers all of its rights, powers and authority to act as such Tax
Matters Partner
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and hereby constitutes and appoints such Manager as its true and lawful
attorney-in-fact, with power to act in its name and on its behalf, including the
power to act through such agents or attorneys as it shall elect or appoint, to
receive notices, to make, execute and deliver, swear to, acknowledge and file
any and all reports, responses and notices, and to do any and all things
required or advisable, in the Manager's judgment, to be done by such a Tax
Matters Partner. Any Member designated as the Tax Matters Partner for the
Company under Section 6231(a)(7) of the Code shall be indemnified and held
harmless by the Company from any and all liabilities and obligations that arise
from or by reason of such designation.
(b) Each person (for purposes of this Section 8.15, called a
"Pass-Thru Partner") that holds or controls an interest as a Member on behalf
of, or for the benefit of, another person or persons, or which Pass-Thru Partner
is beneficially owned (directly or indirectly) by another person or persons,
shall, within 30 days following receipt from the Tax Matters Partner of any
notice, demand, request for information or similar document, convey such notice
or other document in writing to all holders of beneficial interests in the
Company holding such interests through such Pass-Thru Partner. In the event the
Company shall be the subject of an income tax audit by any Federal, state or
local authority, to the extent the Company is treated as an entity for purposes
of such audit, including administrative settlement and judicial review, the Tax
Matters Partner shall be authorized to act for, and its decision shall be final
and binding upon, the Company and each Member thereof. All expenses incurred in
connection with any such audit, investigation, settlement or review shall be
borne by the Company.
8.16 SECTION 754 ELECTION.
In the event of a distribution of Company property to a Member or an
assignment or other transfer (including by reason of death) of all or part of
the interest of a Member in the Company, at the request of a Member, the Board
of Managers, in its discretion, may cause the Company to elect, pursuant to
Section 754 of the Code, or the corresponding provision of subsequent law, to
adjust the basis of the Company property as provided by Sections 734 and 743 of
the Code.
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THE UNDERSIGNED ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS ENTIRETY
BEFORE SIGNING, INCLUDING THE PRE-DISPUTE ARBITRATION CLAUSE SET FORTH IN
SECTION 8.6 AND THE CONFIDENTIALITY CLAUSE SET FORTH IN SECTION 8.11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MANAGERS:
/s/ /s/
- ----------------------------------- -----------------------------------
/s/ /s/
- ----------------------------------- -----------------------------------
ORGANIZATIONAL MEMBER:
/s/
- -----------------------------------
MEMBERS:
Each person who before the Conversion, has signed a Limited Partner Signature
Page and who had been accepted by the Individual General Partners of the
Partnership as a limited partner of the Partnership, or who shall sign a Member
Signature Page and who shall be accepted by the Board of Managers to the Company
as a Member.
SPECIAL ADVISORY MEMBER:
CIBC OPPENHEIMER ADVISERS, L.L.C.
By: CIBC World Markets Corp.
Managing Member
By: /s/
-----------------------------------
Name:
Title:
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