OLD FIELD MASTER FUND, LLC
(A Delaware Limited Liability Company)
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of August 23, 2006
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS.........................................................1
ARTICLE II: ORGANIZATION; ADMISSION OF MEMBERS.................................4
2.1 FORMATION OF LIMITED LIABILITY COMPANY.................................4
2.2 NAME...................................................................4
2.3 PRINCIPAL AND REGISTERED OFFICE........................................4
2.4 DURATION...............................................................4
2.5 BUSINESS OF THE FUND...................................................4
2.6 BOARD OF MANAGERS......................................................6
2.7 MEMBERS................................................................7
2.8 INITIAL CONTRIBUTION...................................................7
2.9 BOTH MANAGERS AND MEMBERS..............................................8
2.10 LIMITED LIABILITY.....................................................8
ARTICLE III: MANAGEMENT........................................................8
3.1 MANAGEMENT AND CONTROL.................................................8
3.2 ACTIONS BY THE BOARD OF MANAGERS.......................................9
3.3 MEETINGS OF MEMBERS....................................................9
3.4 CUSTODY OF THE FUND'S ASSETS..........................................10
3.5 OTHER ACTIVITIES OF MEMBERS AND MANAGERS..............................10
3.6 DUTY OF CARE...........................................................10
3.7 INDEMNIFICATION........................................................11
3.8 FEES, EXPENSES AND REIMBURSEMENT.......................................13
ARTICLE IV: TERMINATION OF STATUS OF ADVISER AND MANAGERS,
TRANSFERS AND REPURCHASES.....................................................14
4.1 TERMINATION OF STATUS OF A MANAGER.....................................14
4.2 REMOVAL OF THE MANAGERS...............................................14
4.3 TRANSFER OF UNITS OF MEMBERS..........................................14
4.4 REPURCHASE OF UNITS...................................................15
ARTICLE V: CAPITAL............................................................17
5.1 CAPITAL CONTRIBUTIONS..................................................17
5.2 RIGHTS OF MEMBERS TO CAPITAL...........................................17
5.3 CAPITAL ACCOUNTS.......................................................18
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5.4 ALLOCATION OF NET PROFIT AND NET LOSS; ALLOCATION OF OFFERING
COSTS......................................................................18
5.5 RESERVES..............................................................18
5.6 TAX ALLOCATIONS.......................................................18
5.7 DISTRIBUTIONS.........................................................19
5.8 WITHHOLDING...........................................................19
ARTICLE VI: DISSOLUTION AND LIQUIDATION.......................................20
6.1 DISSOLUTION............................................................20
6.2 LIQUIDATION OF ASSETS..................................................20
ARTICLE VII: ACCOUNTING, VALUATIONS, AND BOOKS AND RECORDS....................21
7.1 ACCOUNTING AND REPORTS.................................................21
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS...............................21
7.3 VALUATION OF ASSETS...................................................21
ARTICLE VIII: MISCELLANEOUS PROVISIONS........................................22
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT......................22
8.2 SPECIAL POWER OF ATTORNEY.............................................23
8.3 NOTICES...............................................................24
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.........................24
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2................................24
8.6 CHOICE OF LAW.........................................................24
8.7 NOT FOR BENEFIT OF CREDITORS..........................................25
8.8 CONSENTS..............................................................25
8.9 MERGER AND CONSOLIDATION..............................................25
8.10 PRONOUNS.............................................................25
8.11 CONFIDENTIALITY......................................................25
8.12 CERTIFICATION OF NON-FOREIGN STATUS..................................26
8.13 SEVERABILITY.........................................................26
8.14 FILING OF RETURNS....................................................26
8.15 TAX MATTERS PARTNER..................................................27
8.16 SECTION 754 ELECTION.................................................27
8.17 USE OF NAMES "MARWOOD" AND "OLD FIELD MASTER FUND"...................27
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OLD FIELD MASTER FUND, LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of Old Field Master Fund, LLC (the
"Fund") is dated as of August 23, 2006 by and among Xxxx X. Xxxxx, as the
Manager, Marwood Alternative Asset Management LLC, as the initial Member, and
those persons hereinafter admitted as Members.
WHEREAS, the Fund has heretofore been formed as a limited liability company
under the Delaware Limited Liability Company Act pursuant to an initial
Certificate of Formation (the "Certificate") dated and filed with the Secretary
of State of Delaware on August 8, 2006.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants hereinafter set forth, it is hereby agreed as follows:
ARTICLE I: DEFINITIONS
For purposes of this Agreement:
"ADVISERS ACT" - The Investment Advisers Act of 1940, as amended, and the rules,
regulations, and orders thereunder, as amended from time to time, or any
successor law.
"AFFILIATE" - An affiliated person of a person as such term is defined in the
1940 Act.
"AGREEMENT" - This Limited Liability Company Agreement, as amended from time to
time.
"BOARD" - 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 such Member pursuant to Section 5.3.
"CAPITAL CONTRIBUTION" - With respect to each Member, the amount of capital
contributed to the Fund pursuant to Section 5.1.
"CERTIFICATE" - The Certificate of Formation of the Fund and any amendments
thereto as filed with the office of the Secretary of State of the State of
Delaware.
"CLOSING DATE" - The first date on or as of which a person other than Marwood
Alternative Asset Management LLC is admitted to the Fund as a Member.
"CODE" - The United States Internal Revenue Code of 1986, as amended from time
to time, or any successor law.
"DELAWARE ACT" - The Delaware Limited Liability Company Act, as amended from
time to time, or any successor law.
"DISTRIBUTOR" - Marwood Alternative Asset Management LLC or any person who may
hereafter serve as a placement agent for Units pursuant to a placement agreement
with the Fund, or as the distributor of Units pursuant to a general distribution
agreement with the Fund.
"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 each Fiscal Year;
2) the last day of each Taxable Year;
3) the day preceding any day as of which a contribution to the capital of the
Fund is made pursuant to Section 5.1;
4) any day on which the Fund repurchases any Units of any Member; or
5) 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 from the Capital Accounts of all Members in accordance with their
respective ownership of Units.
"FISCAL YEAR" - Taxable Year.
"FORM N-2" - The Fund's Registration Statement on Form N-2 filed with the
Securities and Exchange Commission, as amended from time to time.
"INDEMNITEES" - Each Manager of the Fund and the directors, officers and
employees of Marwood.
"INDEPENDENT MANAGERS" - Those Managers who are not "interested persons" of the
Fund as such term is defined by the 1940 Act.
"FUND" - The limited liability company governed hereby.
"INITIAL MANAGER" - The person who directed the formation of the Fund and served
as initial Manager (who may thereafter, but need not, serve as a Manager).
"INVESTMENT FUNDS" - Investment funds in which the Fund's assets are invested.
"INVESTMENT MANAGERS" - The organizations that manage and direct the investment
activities of Investment Funds or are retained to manage and invest designated
portions of the Fund's assets.
"MANAGER" - A person designated as a Manager of the Fund pursuant to the
provisions of Section 2.6 of the Agreement and who serves on the Board of the
Fund, and the Initial Manager.
"MARWOOD" - Marwood Alternative Asset Management LLC, a Delaware limited
liability company, or any successor thereof.
"MEMBER" - Any person who shall have been admitted to the Fund as a member
(including any Manager in such person's capacity as a member of the Fund but
excluding any Manager in such person's capacity as a Manager of the Fund) until
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the Fund repurchases all the Units of such person pursuant to Section 4.4 hereof
or a substituted member or members are admitted with respect to any such
person's Units as a member pursuant to Section 4.3 hereof; such term includes
Marwood or an Affiliate of Marwood to the extent Marwood (or such Affiliate)
makes a capital contribution to the Fund and shall have been admitted to the
Fund as a member.
"NET ASSETS" - The total value of all assets of the Fund, less an amount equal
to all accrued debts, liabilities and obligations of the Fund, calculated before
giving effect to any repurchases of Units. The Net Assets of the Fund will be
computed as of the close of business on the last day of each Fiscal Period.
Other securities and assets of the Fund will be valued at market value, if
market quotations are readily available, or will be valued based upon estimates
made in good faith by the Board in accordance with procedures adopted by the
Board. Expenses of the Fund and its liabilities (including the amount of any
borrowings) are taken into account for purposes of computing Net Assets.
"NET ASSET VALUE" - Net Assets divided by the number of Units outstanding at the
applicable date. The initial Net Asset Value of a Unit, as of the closing of the
initial sale of Units, shall be $100.
"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
Fund, as of the close of business on the Closing Date).
"1940 ACT" - The Investment Company Act of 1940, as amended, and the rules,
regulations and orders thereunder, as amended from time to time, or any
successor law.
"REGULATIONS" - Treasury Regulations promulgated under the Code.
"SECURITIES" - Securities (including, without limitation, equities, debt
obligations, options, and other "securities" as that term is defined in Section
2(a)(36) of the 0000 Xxx) and any contracts for forward or future delivery of
any security, debt obligation, currency, commodity, any type of derivative
instrument and financial instrument and any contract based on any index or group
of securities, debt obligations, currencies, commodities, and any options
thereon.
"TAXABLE YEAR" - The period commencing on the Closing Date and ending on the
next succeeding December 31, and thereafter each period commencing on January 1
of each year and ending on the immediately following December 31 (or on the date
of the final distribution pursuant to Section 6.2 hereof), unless and until the
Board shall elect another taxable year for the Fund.
"TRANSFER" - The assignment, transfer, sale, encumbrance, pledge, or other
disposition of a Unit, including any right to receive any allocations and
distributions attributable to such Unit.
"UNITS" - The units of limited liability company interest, each representing an
ownership interest in the Fund, including the rights and obligations of a Member
under this Agreement and the Delaware Act. Upon the closing of the initial
issuance of Units, one Unit shall be issued with respect to each $100
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contributed to the capital of the Fund by a Member. Thereafter Units shall be
issued at the Net Asset Value as of the date of issuance.
"VALUATION DATE" - The date as of which the Fund values Units for purposes of
determining the price at which Units are to be repurchased by the Fund pursuant
to an offer made by the Fund pursuant to Section 4.4 hereof.
ARTICLE II: ORGANIZATION; ADMISSION OF MEMBERS
2.1 FORMATION OF LIMITED LIABILITY COMPANY
The Fund has been formed as a limited liability company at the direction of the
Initial Manager, which authorized the filing of the Certificate. Such formation
and filing are hereby ratified by the execution of this Agreement. The Board
shall cause the execution and filing in accordance with the Delaware Act of any
amendment to the Certificate and shall cause the execution and filing with
applicable governmental authorities of any other instruments, documents, and
certificates that, in the opinion of the Fund's legal counsel, may from time to
time be required by the laws of the United States of America, the State of
Delaware, or any other jurisdiction in which the Fund shall determine to do
business, or any political subdivision or agency thereof, or as such legal
counsel may deem necessary or appropriate to effectuate, implement, and continue
the valid existence and business of the Fund.
2.2 NAME
The Fund's name shall be "Old Field Master Fund, LLC" or such other name as the
Board may hereafter adopt upon (i) causing an appropriate amendment to the
Certificate to be filed in accordance with the Delaware Act and (ii) taking such
other actions as may be required by law.
2.3 PRINCIPAL AND REGISTERED OFFICE
The Fund shall have its principal office at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxx, XX 00000, or at such other place as may be designated from time to time
by the Board.
The Fund shall have its registered office in Delaware at Corporation Service
Company and shall have Corporation Service Company as its registered agent for
service of process in Delaware, unless a different registered office or agent is
designated from time to time by the Board.
2.4 DURATION
The term of the Fund commenced on the filing of the Certificate with the
Secretary of State of Delaware and shall continue until the Fund is dissolved
pursuant to Section 6.1 hereof.
2.5 BUSINESS OF THE FUND
(a) The business of the Fund is, either directly or indirectly, through one or
more other pooled investment vehicles, to purchase, sell (including short
sales), invest, and trade in Securities, on margin or otherwise, to engage in
any financial or derivative transactions relating thereto or otherwise, and to
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receive investment as a master fund as part of a master-feeder fund structure,
or to invest in one or more other funds as a fund of funds. The Fund may
execute, deliver, and perform all contracts, agreements, subscription documents,
and other undertakings and engage in all activities and transactions as may in
the opinion of the Board be necessary or advisable to carry out its objective or
business.
(b) The Fund shall operate as a closed-end, non-diversified, management
investment company in accordance with the 1940 Act and subject to any
fundamental policies and investment restrictions as may be adopted by the Board.
The Fund may register its Units under the Securities Act of 1933, as amended,
but need not so register Units.
(c) In furtherance of the Fund's business, the Board shall have the authority to
take the following actions, and to delegate such portion or all of such
authority to such officers of the Fund as the Board may elect:
(1) To acquire or buy, and invest the Fund's property in, own, hold for
investment or otherwise, and to sell or otherwise dispose of, all types
and kinds of securities and investments of any kind including, but not
limited to, investment funds, stocks, profit-sharing interests or
participations and all other contracts for or evidences of equity
interests, bonds, debentures, warrants and rights to purchase securities,
and interests in loans, certificates of beneficial interest, bills, notes
and all other contracts for or evidences of indebtedness, money market
instruments including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and other obligations, and all
other negotiable and non-negotiable securities and instruments, however
named or described, issued by corporations, trusts, associations or any
other Persons, domestic or foreign, or issued or guaranteed by the United
States of America or any agency or instrumentality thereof, by the
government of any foreign country, by any State, territory or possession
of the United States, by any political subdivision or agency or
instrumentality of any state or foreign country, or by any other
government or other governmental or quasi-governmental agency or
instrumentality, domestic or foreign; to acquire and dispose of interests
in domestic or foreign loans made by banks and other financial
institutions; to deposit any assets of the Fund in any bank, trust company
or banking institution or retain any such assets in domestic or foreign
cash or currency; to purchase and sell gold and silver bullion, precious
or strategic metals, and coins and currency of all countries; to engage in
"when issued" and delayed delivery transactions; to enter into repurchase
agreements, reverse repurchase agreements and firm commitment agreements;
to employ all types and kinds of hedging techniques and investment
management strategies; and to change the investments of the Fund.
(2) To acquire (by purchase, subscription or otherwise), to hold, to trade
in and deal in, to acquire any rights or options to purchase or sell, to
sell or otherwise dispose of, to lend and to pledge any of the Fund's
property or any of the foregoing securities, instruments or investments;
to purchase and sell options on securities, currency, precious metals and
other commodities, indices, futures contracts and other financial
instruments and assets and enter into closing and other transactions in
connection therewith; to enter into all types of commodities contracts,
including, without limitation, the purchase and sale of futures contracts
on securities, currency, precious metals and other commodities, indices
5
and other financial instruments and assets; to enter into forward foreign
currency exchange contracts and other foreign exchange and currency
transactions of all types and kinds; to enter into interest rate, currency
and other swap transactions; and to engage in all types and kinds of
hedging and risk management transactions.
(3) To exercise all rights, powers and privileges of ownership or interest
in all securities and other assets included in the Fund property,
including, without limitation, the right to vote thereon and otherwise act
with respect thereto; and to do all acts and things for the preservation,
protection, improvement and enhancement in value of all such securities
and assets.
(4) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, lease, develop and dispose of (by sale or otherwise) any type or
kind of property, real or personal, including domestic or foreign
currency, and any right or interest therein.
(5) To borrow money and in this connection issue notes, commercial paper
or other evidence of indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security all or any part of the Fund
property; to endorse, guarantee, or undertake the performance of any
obligation or engagement of any other Person; to lend all or any part of
the Fund's property to other Persons; and to issue general unsecured or
other obligations of the Fund, and enter into indentures or agreements
relating thereto.
(6) To aid, support or assist by further investment or other action any
Person, any obligation of or interest which is included in the Fund's
property or in the affairs of which the Fund has any direct or indirect
interest; to do all acts and things designed to protect, preserve, improve
or enhance the value of such obligation or interest; and to guarantee or
become surety on any or all of the contracts, securities and other
obligations of any such Person.
(7) To join other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Board shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Board shall deem proper.
(8) To carry on any other business in connection with or incidental to any
of the foregoing powers referred to in this Agreement, to do everything
necessary, appropriate or desirable for the accomplishment of any purpose
or the attainment of any object or the furtherance of any power referred
to in this Agreement, either alone or in association with others, and to
do every other act or thing incidental or appurtenant to or arising out of
or connected with such business or purposes, objects or powers.
2.6 BOARD OF MANAGERS
(a) Prior to the Closing Date, the initial Member or Members may designate such
persons who shall agree to be bound by all of the terms of this Agreement to
serve as Managers on the Board of Managers. By signing this Agreement or signing
6
an investor application or certification in connection with the purchase of
Units, a Member admitted on the Closing Date shall be deemed to have voted for
the election of each of the Managers so designated. After the Closing Date, the
Board may, subject to the provisions of paragraphs (a) and (b) of this Section
2.6 with respect to the number of and vacancies in the position of Manager and
the provisions of Section 3.3 hereof with respect to the election of Managers to
the Board by Members, designate any person who shall agree to be bound by all of
the terms of this Agreement as a Manager. The names and mailing addresses of the
Managers shall be set forth in the books and records of the Fund. The number of
managers shall be fixed from time to time by the Board.
(b) Each Manager shall serve on the Board for the duration of the term of the
Fund, unless his or her status as a Manager shall be sooner terminated pursuant
to Section 4.1 or Section 4.2 hereof. In the event of any vacancy in the
position of Manager, the remaining Managers may appoint an individual to serve
in such capacity, so long as immediately after such appointment at least two-
thirds (2/3) of the Managers then serving would have been elected by the
Members. The Board may call a meeting of Members to fill any vacancy in the
position of Manager, and shall do so within 60 days after any date on which
Managers who were elected by the Members cease to constitute a majority of the
Managers then serving on the Board.
(c) In the event that no Manager remains to continue the business of the Fund,
Marwood shall promptly call a meeting of the Members, to be held within 60 days
after the date on which the last Manager ceased to act in that capacity, for the
purpose of determining whether to continue the business of the Fund and, if the
business shall be continued, of electing the required number of Managers to the
Board. If the Members shall determine at such meeting not to continue the
business of the Fund or if the required number of Managers is not elected within
60 days after the date on which the last Manager ceased to act in that capacity,
then the Fund shall be dissolved pursuant to Section 6.1 hereof and the assets
of the Fund shall be liquidated and distributed pursuant to Section 6.2 hereof.
2.7 MEMBERS
The Fund may offer Units for purchase by investors (including through exchange)
in such manner and at such times as may be determined by the Board. Each
subscription for Units is subject to the receipt by the Fund or its custodian of
cleared funds on or before the acceptance date for such subscription in the full
amount of such subscription. Subject to the foregoing, a person may be admitted
to the Fund as a Member subject to the condition that such person shall execute
and deliver a Member Certification pursuant to which such Member agrees to be
bound by all the terms and provisions of this Agreement. The Board may, in its
sole and absolute discretion, reject any subscription for Units. The Board may,
in its sole and absolute discretion, suspend the offering of the Units at any
time. The admission of any person as a Member shall be effective upon the
revision of the books and records of the Fund to reflect the name and the
contribution to the capital of the Fund of such Member.
2.8 INITIAL CONTRIBUTION
The initial contribution of capital to the Fund by Marwood shall be represented
by Units, which Units shall have the same rights as other Units held by Members.
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2.9 BOTH MANAGERS AND MEMBERS
A Member may also be a Manager for purposes of the Delaware Act, in which event
such Member's rights and obligations in each capacity shall be determined
separately in accordance with the terms and provisions of this Agreement or as
provided in the Delaware Act.
2.10 LIMITED LIABILITY
Except as provided under the Delaware Act or the 1940 Act, a Member shall not be
liable for the Fund's debts, obligations, and liabilities in any amount in
excess of the capital account balance of such Member. Except as provided under
the Delaware Act or the 1940 Act, a Manager shall not be liable for the Fund's
debts, obligations or liabilities.
ARTICLE III: MANAGEMENT
3.1 MANAGEMENT AND CONTROL
(a) Management and control of the business of the Fund shall be vested in the
Board, which shall have the right, power, and authority, on behalf of the Fund
and in its name, to exercise all rights, powers, and authority of managers under
the Delaware Act and to do all things necessary and proper to carry out the
objective and business of the Fund and their duties hereunder. No Manager shall
have the authority individually to act on behalf of or to bind the Fund except
within the scope of such Manager's authority as delegated by the Board. The
parties hereto intend that, except to the extent otherwise expressly provided
herein, (i) each Manager shall be vested with the same powers, authority, and
responsibilities on behalf of the Fund as are customarily vested in each
director of a Delaware corporation and (ii) each Independent Manager shall be
vested with the same powers, authority and responsibilities on behalf of the
Fund as are customarily vested in each director of a closed-end Management
investment company registered under the 1940 Act that is organized as a Delaware
corporation who is not an "interested person" of such company, as such term is
defined by the 1940 Act. During any period in which the Fund shall have no
Managers, Marwood, as the initial Member, shall have the authority to manage the
business and affairs of the Fund.
(b) Members, in their capacity as Members, shall have no right to participate in
and shall take no part in the management or control of the Fund's business and
shall have no right, power or authority to act for or bind the Fund. Members
shall have the right to vote on any matters only as provided in this Agreement
or on any matters that require the approval of the holders of voting securities
under the 1940 Act or as otherwise required in the Delaware Act.
(c) The Board may delegate to any other person any rights, power and authority
vested by this Agreement in the Board to the extent permissible under applicable
law, and may appoint persons to serve as officers of the Fund, with such titles
and authority as may be determined by the Board consistent with applicable law.
(d) The Board shall have full power and authority to adopt By-Laws providing for
the conduct of the business of the Fund and containing such other provisions as
they deem necessary, appropriate or desirable, and, subject to the voting powers
of one or more Classes created pursuant to this section 3.1, to amend and repeal
such By-Laws. Unless the By-Laws specifically require that Members authorize or
8
approve the amendment or repeal of a particular provision of the By-Laws, any
provision of the By-Laws may be amended or repealed by the Board without Member
authorization or approval.
(e) The Board shall have the full power and authority, without Member approval,
to authorize one or more Classes of Units; Units of each such Class having such
preferences, voting powers and special or relative rights or privileges
(including conversion rights, if any) as the Board may determine and as shall be
set forth in a resolution adopted in accordance with the By-Laws.
3.2 ACTIONS BY THE BOARD OF MANAGERS
(a) Unless provided otherwise in this Agreement, the Board shall act only: (i)
by the affirmative vote of a majority of the Managers (including the vote of a
majority of the Independent Managers if required by the 0000 Xxx) present at a
meeting duly called at which a quorum of the Managers shall be present (in
person or, if in-person attendance is not required by the 1940 Act, by telephone
or other electronic means) or (ii) by unanimous written consent of all of the
Managers without a meeting, if permissible under the 1940 Act.
(b) The Board may designate from time to time a Principal Manager who shall
preside at all meetings of the Board. Meetings of the Board may be called by the
Principal Manager or by any two Managers, and may be held on such date and at
such time and place as the Board shall determine. Each Manager shall be entitled
to receive written notice of the date, time and place of such meeting within a
reasonable time in advance of the meeting. Except as otherwise required by the
1940 Act, notice need not be given to any Manager who shall attend a meeting
without objecting to the lack of notice or who shall execute a written waiver of
notice with respect to the meeting. Managers may attend and participate in any
meeting by telephone or other electronic means except where in-person attendance
at a meeting is required by the 1940 Act. A majority of the Managers shall
constitute a quorum at any meeting.
3.3 MEETINGS OF MEMBERS
(a) Actions requiring the vote of the Members may be taken at any duly
constituted meeting of the Members at which a quorum is present. Meetings of the
Members may be called by the Board or by Members holding Units with an aggregate
Net Asset Value of 25% or more of the aggregate Net Asset Value of all Units,
and may be held at such time, date and place as the Board shall determine. The
Board shall arrange to provide written notice of the meeting, stating the date,
time, and place of the meeting and the record date therefore, 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 aggregate Net Asset Value of all Units 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 the Members holding a majority, by
aggregate Net Asset Value, of the Units 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
9
(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 the aggregate Net Asset Value of such Member's Unit
ownership as of the record date for such meeting. The Board shall establish a
record date not less than 10 days nor more than 90 days prior to the date of any
meeting of Members as the record date for determining eligibility to vote at
such meeting and the number of votes that each Member will be entitled to cast
at the meeting, and shall maintain for each such record date a list setting
forth the name of each Member and the number of votes that each Member will be
entitled to cast at the meeting.
(c) A Member may vote at any meeting of Members by a proxy, provided that such
proxy is authorized to act by (i) a written instrument properly executed by the
Member and filed with the Fund before or at the time of the meeting or (ii) such
electronic, telephonic, computerized or other alternative means as may be
approved by a resolution adopted by the Board. A proxy may be suspended or
revoked, as the case may be, by the Member executing the proxy by a later
writing delivered to the Fund at any time prior to exercise of the proxy or if
the Member executing the proxy shall be present at the meeting and decide to
vote in person. Any action of the Members that is permitted to be taken at a
meeting of the Members may be taken without a meeting if consents in writing,
setting forth the action taken, are signed by Members 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 THE FUND'S ASSETS
The physical possession of all funds, Securities, or other properties of the
Fund shall at all times, be held, controlled and administered by one or more
custodians retained by the Fund in accordance with the requirements of the 1940
Act and the rules thereunder.
3.5 OTHER ACTIVITIES OF MEMBERS AND MANAGERS
(a) The Managers shall not be required to devote all of their time to the
affairs of the Fund, but shall devote such time as the Managers may reasonably
believe to 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, acquiring and disposing of Securities, providing of
investment advisory or brokerage services, serving as directors, officers,
employees, advisors, or agents of other companies, partners of any partnership,
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 any such activities of any other Member or Manager, or in or to
any profits derived therefrom.
10
3.6 DUTY OF CARE
(a) No Manager shall be liable to the Fund or to any of its Members for any loss
or damage occasioned by any act or omission in the performance of a Manager's
services pursuant to any agreement, including this Agreement, between a Manager
and the Fund for the provision of services to the Fund unless it shall be
determined by final judicial decision on the merits from which there is no
further right to appeal that such loss is due to an act or omission of the
Manager constituting willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the performance of its services to
the Fund.
(b) Members not in breach of any obligation hereunder or under their Member
Certifications shall be liable to the Fund, any other Member, or third parties
only as provided under the Delaware Act.
3.7 INDEMNIFICATION
(a) To the fullest extent permitted by law, the Fund shall, subject to Section
3.7(b) hereof, indemnify each Manager of the Fund and the directors, officers
and employees of Marwood (the "Indemnitees") (including for this purpose his or
her respective 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
Indemnitees may be or may have been involved as a party or otherwise, or with
which such Indemnitees may be or may have been threatened, while in office or
thereafter, by reason of being or having been a Manager of the Fund or the past
or present performance of services to the Fund by such Indemnitees, 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
Indemnitees by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of such Indemnitees'
offices. 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 so incurred by such Indemnitees, including, but not limited to,
reasonable counsel fees and accounting and auditing expenses (but excluding
amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties), may be paid from time to time by the Fund in advance of the final
disposition of any such action, suit, investigation, or proceeding upon receipt
of an undertaking by or on behalf of such Indemnitees to repay to the Fund
amounts so paid if it shall ultimately be determined that indemnification of
such expenses is not authorized under Section 3.7(a) hereof; provided, however,
that (i) such Indemnitees shall provide security for such undertaking, (ii) the
Fund shall be insured by or on behalf of such Indemnitees against losses arising
by reason of such Indemnitees' failure to fulfill such undertaking, or (iii) a
majority of the Managers (excluding any Manager who is either seeking
11
advancement of expenses hereunder or is or has been a party to any other action,
suit, investigation, or proceeding involving claims similar to those involved in
the action, suit, investigation, or proceeding giving rise to a claim for
advancement of expenses hereunder) or independent legal counsel in a written
opinion shall determine based on a review of readily available facts (as opposed
to a full trial-type inquiry) that there is reason to believe such Indemnitees
ultimately will be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation, or proceeding
(whether by a compromise payment, pursuant to a consent decree or otherwise)
without an adjudication or a decision on the merits by a court, or by any other
body before which the proceeding shall have been brought, that the Indemnitees
are liable to the Fund or its Members by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of such Indemnitees' offices, indemnification shall be provided pursuant
to Section 3.7(a) hereof if (i) approved as in the best interests of the Fund by
a majority of the Managers (excluding any Manager who is either seeking
indemnification hereunder or is or has been a party to any other action, suit,
investigation, or proceeding involving claims similar to those involved in the
action, suit, investigation, or proceeding giving rise to a claim for
indemnification hereunder) upon a determination based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that such Indemnitees
acted in good faith and in the reasonable belief that such actions were in the
best interests of the Fund and that such Indemnitees are not liable to the Fund
or its Members by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of such Indemnitees'
offices, or (ii) the Board secures a written opinion of independent legal
counsel based upon a review of readily available facts (as opposed to a full
trial-type inquiry) to the effect that such indemnification would not protect
such Indemnitees against any liability to the Fund or its Members to which such
Indemnitees 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 Indemnitees' offices.
(d) Any indemnification or advancement of expenses made pursuant to this Section
3.7 shall not prevent the recovery from any Indemnitees of any such amount if
such Indemnitees subsequently shall be determined in a decision on the merits in
any action, suit, investigation or proceeding involving the liability or expense
that gave rise to such indemnification or advancement of expenses to be liable
to the Fund or its Members by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of such
Indemnitees' offices. In (i) any suit brought by a Manager (or other person
entitled to indemnification hereunder) to enforce a right to indemnification
under this Section 3.7 it shall be a defense that, and (ii) in any suit in the
name of the Fund to recover any indemnification or advancement of expenses made
pursuant to this Section 3.7 the Fund shall be entitled to recover such expenses
upon a final adjudication that, the Manager or other person claiming a right to
indemnification under this Section 3.7 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 Fund (or any Member acting derivatively or otherwise
on behalf of the Fund or its Members).
12
(e) The Indemnitees may not satisfy any right of indemnification or advancement
of expenses granted in this Section 3.7 or to which such Indemnitees may
otherwise be entitled except out of the assets of the Fund, and no Member shall
be personally liable with respect to any such claim for indemnification or
advancement of expenses.
(f) The rights of indemnification provided hereunder shall not be exclusive of
or affect any other rights to which any person may be entitled by contract or
otherwise under law. Nothing contained in this Section 3.7 shall affect the
power of the Fund to purchase and maintain liability insurance on behalf of any
Manager or other person.
3.8 FEES, EXPENSES AND REIMBURSEMENT
(a) The Board may cause the Fund to compensate each Manager who is not an
"interested person" of the Fund (as defined in the 1940 Act), and such Manager
shall be reimbursed by the Fund for reasonable travel and out-of-pocket expenses
incurred by him in performing his duties under this Agreement.
(b) The Fund shall bear all costs and expenses incurred in its business and
operations. Costs and expenses to be borne by the Fund include, but are not
limited to, the following:
(1) all costs and expenses directly related to investment transactions and
positions for the Fund's account, including, but not limited to, brokerage
commissions, research fees, interest and commitment fees on loans and
debit balances, borrowing charges on securities sold short, dividends on
securities sold 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 operation and registration
of the Fund, offering costs and the costs of compliance with applicable
Federal and state laws;
(3) all costs and expenses associated with the organization and operation
of separate Investment Funds managed by Investment Managers retained by
the Fund;
(4) the costs and expenses of holding meetings of the Board and any
meetings of Members, including costs associated with the preparation and
dissemination of proxy materials;
(6) the fees and disbursements of the Fund's counsel, legal counsel to the
Independent Managers, auditing and accounting expenses and fees and
disbursements for independent accountants for the Fund, and other
consultants and professionals engaged on behalf of the Fund;
(7) the fees payable to custodians and other persons providing
administrative services to the Fund;
(8) the costs of a fidelity bond and any liability insurance obtained on
behalf of the Fund or the Board or Indemnitees;
13
(9) all costs and expenses of preparing, setting in type, printing, and
distributing reports and other communications to Members; and
(10) such other types of expenses as may be approved from time to time by
the Board.
(c) Subject to procuring any required regulatory approvals, from time to time
the Fund may, alone or in conjunction with other registered or unregistered
investment funds or other accounts for which Marwood, or any Affiliate of
Marwood, acts as general partner or investment adviser, purchase insurance in
such amounts, from such insurers and on such terms as the Board shall determine.
ARTICLE IV: TERMINATION OF STATUS OF ADVISER AND MANAGERS,
TRANSFERS AND REPURCHASES
4.1 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' 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 or her duties hereunder; (vi) shall be declared bankrupt
by a court with appropriate jurisdiction, file a petition commencing a voluntary
case under any bankruptcy law or make an assignment for the benefit of
creditors; (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
Fund under the Delaware Act.
4.2 REMOVAL OF THE MANAGERS
Any Manager may be removed either (a) by the vote or written consent of at least
two thirds (2/3) of the Managers not subject to the removal vote or (b) with or
without cause by, if at a meeting, a vote of a majority of the Members or, if by
written consent, a vote of Members holding at least two-thirds (2/3) of the
total number of votes eligible to be cast by all Members.
4.3 TRANSFER OF UNITS OF MEMBERS
(a) Units of a Member may be Transferred only (i) by operation of law pursuant
to the death, divorce, bankruptcy, insolvency, dissolution, or incompetency of
such Member or (ii) with the written consent of the Board (which may be withheld
in its sole discretion); provided, however, that the Board may not consent to
any Transfer other than a Transfer (i) in which the tax basis of the Units in
the hands of the transferee is determined, in whole or in part, by reference to
its tax basis in the hands of the 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), (iii) as a distribution from a qualified retirement plan or an
individual retirement account, or (iv) a Transfer to which the Board may consent
pursuant to the following sentence. The Board may consent to other pledges,
transfers, or assignments under such other circumstances and conditions as it,
in its sole discretion, deems appropriate; provided, however, that prior to any
such pledge, transfer, or assignment, the Board shall consult with counsel to
the Fund to ensure that such pledge, transfer, or assignment will not cause the
Fund to be treated as a "publicly traded partnership" taxable as a corporation.
In no event, however, will any transferee or assignee be admitted as a Member
14
without the consent of the Board which may be withheld in its sole discretion.
Any pledge, transfer, or assignment not made in accordance with this Section 4.4
shall be void.
(b) The Board may not consent to a Transfer of Units of a Member unless: (i) the
person to whom the Units are Transferred (or each of the person's beneficial
owners if such a person is a "private investment company" as defined in
paragraph (d)(3) of Rule 205-3 under the Advisers Act) is a person whom the
Board believes is a "Eligible Investor" as described in the Fund's Form N-2; and
(ii) all the Units of the Member are Transferred to a single transferee or,
after the Transfer of less than all the Member's Units, the balance of the
Capital Account of each of the transferee and transferor is not less than
$250,000. Any transferee that acquires Units by operation of law as the result
of the death, divorce, bankruptcy, insolvency, dissolution, or incompetency of a
Member or otherwise, shall be entitled to the allocations and distributions
allocable to the Units so acquired and to Transfer such Units 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 Units with the approval of the Board, the Board shall promptly
take all necessary actions so that the transferee to whom such Units are
transferred is admitted to the Fund as a Member. Each Member effecting a
Transfer and its transferee agree to pay all expenses, including attorneys' and
accountants' fees, incurred by the Fund in connection with such Transfer.
(c) Each Member shall indemnify and hold harmless the Fund, the Managers, each
other Member and any Affiliate of the foregoing against all losses, claims,
damages, liabilities, costs, and expenses (including legal or other expenses
incurred in investigating or defending against any such losses, claims, damages,
liabilities, costs, and expenses or any judgments, fines, and amounts paid in
settlement), joint or several, to which such persons may become subject by
reason of or arising from (i) any Transfer made by such Member in violation of
this Section 4.4 and (ii) any misrepresentation by such Member in connection
with any such Transfer.
4.4 REPURCHASE OF UNITS
(a) Except as otherwise provided in this Agreement, no Member or other person
holding Units shall have the right to withdraw or tender to the Fund for
repurchase of those Units. The Board from time to time, in its sole discretion
and on such terms and conditions as it may determine, may cause the Fund to
repurchase Units pursuant to written tenders. However, the Fund shall not offer
to repurchase Units on more than four 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 Fund or the
Members. In determining whether to cause the Fund to repurchase Units pursuant
to written tenders, the Board shall consider the following factors, among
others:
(1) whether any Members have requested to tender Units to the Fund;
(2) the liquidity of the Fund's assets;
(3) the investment plans and working capital requirements of the Fund;
(4) the relative economies of scale with respect to the size of the Fund;
15
(5) the history of the Fund in repurchasing Units;
(6) the economic condition of the securities markets; and
(7) the anticipated tax consequences of any proposed repurchases of Units.
The Board shall cause the Fund to repurchase Units pursuant to written tenders
only on terms determined by the Board to be fair to the Fund and to all Members
(including persons holding Units acquired from Members), as applicable.
(b) A Member who tenders for repurchase only a portion of the Member's Units
will be required to maintain a capital account balance at least equal to
$250,000. If a Member tenders an amount that would cause the Member's capital
account balance to fall below the required minimum, the Fund reserves the right
to reduce the amount to be purchased from the Member so that the required
minimum balance is maintained or to repurchase all of the tendering Member's
Units. A Member who tenders for repurchase Units initially purchased within a
period determined by the Board before such tender may, as determined by the
Board, be required to pay an early repurchase charge of a percentage of the
repurchase price for such Units, which charge will be withheld from the payment
of the repurchase price.
(c) The Board may cause the Fund to repurchase Units of a Member or any person
acquiring Units from or through a Member in the event that the Board determines
or has reason to believe that:
(1) such Units have been transferred in violation of Section 4.3 hereof,
or such Units have vested in any person by operation of law as the result
of the death, divorce, bankruptcy, insolvency, dissolution, or
incompetency of a Member;
(2) ownership of such Units by a Member or other person will cause the
Fund to be in violation of, or subject the Fund to additional registration
or regulation under, the securities laws of the United States or any other
relevant jurisdiction;
(3) continued ownership of such Units may subject the Fund or any of the
Members to an undue risk of adverse tax or other fiscal consequences;
(4) such Member's continued participation in the Fund may cause the Fund
to be classified as a "publicly traded partnership" within the meaning of
Section 7704 of the Code and the Treasury Regulations thereunder;
(5) any of the representations and warranties made by a Member in
connection with the acquisition of Units was not true when made or has
ceased to be true; or
(6) it would be in the best interests of the Fund, as determined by the
Board in its sole discretion, for the Fund to repurchase such Units.
(d) Provided that the Board shall have made a determination to repurchase Units,
Units will be valued for purposes of determining their repurchase price as of
the end of each fiscal quarter (a "Valuation Date"). Units to be repurchased
pursuant to subsection 4.4(c) shall be tendered by the affected Members, and
16
payment for such Units shall be made by the Fund, at such times as the Fund
shall set forth in its notice to the affected Members. Units being tendered by
Members pursuant to subsection 4.4(a) shall be tendered by Members at least
thirty (30) days prior to the applicable Valuation Date. The Fund shall pay the
repurchase price for tendered Units approximately, but no earlier than, thirty
(30) days after the applicable Valuation Date. The voting rights of Members as
provided in this Agreement with respect to the tendered Units shall continue
until such time as the Initial Payment (as defined below) of the repurchase
price is paid under this subsection 4.4(d). Payment of the repurchase price for
Units shall consist of cash in an amount equal to such percentage (generally
expected to be 100% or 90%), as may be determined by the Board, of the estimated
unaudited Net Asset Value of the Units repurchased by the Fund determined as of
the Valuation Date relating to such Units (the "Initial Payment"). The Fund may
establish an escrow to hold funds or otherwise earmark funds (including
investments) reasonably determined by the Board to be needed to make both the
Initial Payment and, if the Initial Payment is less than 100% of the estimated
unaudited Net Asset Value, the balance of such estimated Net Asset Value. The
Fund shall pay the balance, if any, of the purchase price based on the audited
financial statements of the Fund for the Fiscal Year in which such repurchase
was effective. Notwithstanding anything in the foregoing to the contrary, the
Board, in its discretion, may pay any portion of the repurchase price in
marketable Securities (or any combination of marketable Securities and cash)
having a value, determined as of the Valuation Date relating to such Units,
equal to the amount to be repurchased.
ARTICLE V: CAPITAL
5.1 CAPITAL CONTRIBUTIONS
(a) The minimum initial contribution of each Member to the capital of the Fund
shall be such amount as the Board, in its sole and absolute discretion, may
determine from time to time. The amount of the initial contribution of each
Member shall be recorded on the books and records of the Fund upon acceptance as
a contribution to the capital of the Fund. The Managers shall not be entitled to
make contributions of capital to the Fund as Managers of the Fund, but may make
contributions to the capital of the Fund as Members.
(b) Members may make additional contributions to the capital of the Fund
effective as of such times as the Board, in its discretion, may permit, subject
to Section 2.7 hereof, but no Member shall be obligated to make any additional
contribution to the capital of the Fund. The minimum initial capital
contribution of a Member to the capital of the Fund shall be such amount as the
Board, in its sole discretion, may determine from time to time.
(c) Initial and any additional contributions to the capital of the Fund by any
Member shall be payable in cash, in-kind or in such manner and at such times as
may be determined by the Board, payable in readily available funds at the date
of the proposed acceptance of the contribution.
5.2 RIGHTS OF MEMBERS TO CAPITAL
No Member shall be entitled to interest on any contribution to the capital of
the Fund, nor shall any Member be entitled to the return of any capital of the
Fund except (i) upon the repurchase by the Fund of a part or all of such
Member's Units pursuant to Section 4.4 hereof, (ii) pursuant to the provisions
17
of Section 5.7 hereof or (iii) upon the liquidation of the Fund's assets
pursuant to Section 6.2 hereof. No Member shall be liable for the return of any
such amounts. No Member shall have the right to require partition of the Fund's
property or to compel any sale or appraisal of the Fund's assets.
5.3 CAPITAL ACCOUNTS
(a) The Fund shall maintain a separate Capital Account for each Member. The Net
Asset Value of each Member's Capital Account shall equal the aggregate Net Asset
Value of such Member's Units.
(b) Each Member's Capital Account shall have an initial balance equal to the
amount of cash constituting such Member's initial contribution to the capital of
the Fund.
(c) Each Member's Capital Account shall be increased by the sum of (i) the
amount of cash constituting additional contributions by such Member to the
capital of the Fund permitted pursuant to Section 5.1 hereof, plus (ii) all
amounts credited to such Member's Capital Account pursuant to Sections 5.4 and
5.5 hereof.
(d) Each Member's Capital Account shall be reduced by the sum of (i) the amount
of any repurchase of the Units of such Member or distributions to such Member
pursuant to Sections 4.4, 5.7 or 6.2 hereof which are not reinvested (net of any
liabilities secured by any asset distributed that such Member is deemed to
assume or take subject to under Section 752 of the Code), plus (ii) any amounts
debited against such Capital Account pursuant to Sections 5.4 and 5.5 hereof.
Expenses with respect to any Fiscal Period shall be calculated and charged at
the end of such Fiscal Period prior to giving effect to any repurchases to be
made as of the end of such Fiscal Period.
5.4 ALLOCATION OF NET PROFIT AND NET LOSS; ALLOCATION OF OFFERING COSTS
As of the last day of each Fiscal Period, any Net Profit or Net Loss for the
Fiscal Period, and any offering costs required by applicable accounting
principles to be charged to capital that are paid or accrued during the Fiscal
Period shall be allocated among and credited to or debited against the Capital
Accounts of the Members in accordance with their respective Unit ownership for
such Fiscal Period.
5.5 RESERVES
Appropriate reserves may be created, accrued, and charged against Members'
Capital Accounts (on a pro rata basis in accordance with the Net Asset Value of
each Unit) for contingent liabilities, if any, as of the date any such
contingent liability becomes known to the Board, such reserves to be in the
amounts that the Board, in its sole discretion, deems necessary or appropriate.
The Board may increase or reduce any such reserves from time to time by such
amounts as the Board, in its sole and absolute discretion, deems necessary or
appropriate.
18
5.6 TAX ALLOCATIONS
For each Taxable 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 Taxable Years (or relevant portions thereof).
Allocations under this Section 5.6 shall be made pursuant to the principles of
Sections 704(b) and 704(c) of the Code, and in conformity with Regulations
Sections 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and 1.704-3(e)
promulgated thereunder, as applicable, or the successor provisions to such
provisions of the Code 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 Regulations Section 1.704-1(b)(2)(ii)(d).
Notwithstanding the preceding paragraph, in the event that the Fund repurchases
a Member's Units, in whole or in part, the Board may, in its sole and absolute
discretion, specially allocate items of Fund income and gain to that Member for
tax purposes to reduce the amount, if any, by which that Member's repurchase
price exceeds that Member's tax basis for its repurchased Units, or specially
allocate items of Fund deduction and loss to that Member for tax purposes to
reduce the amount, if any, by which that Member's tax basis for its repurchased
Units exceeds that Member's repurchase price.
5.7 DISTRIBUTIONS
The Board, in its sole and absolute discretion, may authorize the Fund to make
distributions in cash or in kind at any time to any one or more of the Members.
5.8 WITHHOLDING
(a) The Board may withhold from any distribution to a Member, or deduct from a
Member's Capital Account, and pay over to the Internal Revenue Service (or any
other relevant taxing authority) any taxes due in respect of such Member to the
extent required by the Code or any other applicable law.
(b) For purposes of this Agreement, any taxes so withheld or deducted by the
Fund shall be deemed to be a distribution or payment to such Member, reducing
the amount otherwise distributable or payable to such Member pursuant to this
Agreement and reducing the Capital Account of such Member.
(c) The Board shall not be obligated to apply for or obtain a reduction of or an
exemption from withholding tax on behalf of any Member that may be eligible for
such reduction or exemption. To the extent that a Member claims to be entitled
to a reduced rate of, or exemption from, a withholding tax pursuant to an
applicable income tax treaty, or otherwise, such Member shall furnish the Board
with such information and forms as such Member may be required to complete in
order to comply with any and all laws and regulations governing the obligations
of withholding tax agents. Each Member represents and warrants that any such
information and forms furnished by such Member shall be true and accurate and
agrees to indemnify the Fund, the Board and each of the other Members from any
and all damages, costs and expenses resulting from the filing of inaccurate or
incomplete information or forms relating to such withholding taxes.
19
ARTICLE VI: DISSOLUTION AND LIQUIDATION
6.1 DISSOLUTION
The Fund shall be dissolved:
(1) upon the affirmative vote to dissolve the Fund by the Board;
(2) upon the failure of Members to elect successor Managers at a meeting
called by Marwood in accordance with Section 2.6(c) hereof when no Manager
remains to continue the business of the Fund;
(3) as required by operation of law.
Dissolution of the Fund shall be effective on the later of the day on which the
event giving rise to the dissolution shall occur or the conclusion of the 60-day
period during which the Members may elect to continue the business of the Fund
as provided in Section 2.6, but the Fund shall not terminate until the assets of
the Fund have been liquidated, and the business and affairs of the Fund have
been wound up, in accordance with Section 6.2 hereof and the Certificate has
been canceled.
6.2 LIQUIDATION OF ASSETS
(a) Upon the dissolution of the Fund as provided in Section 6.1 hereof, the
Board shall promptly appoint Marwood as the liquidator and Marwood shall
liquidate the assets, and wind up the business and affairs of the Fund, except
that if the Board does not appoint Marwood as the liquidator or Marwood 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 assets, and wind up the business and affairs of the Fund. 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 or liquidator
shall deem appropriate in its sole and absolute discretion as applicable) shall
be distributed in the following manner:
(1) the debts of the Fund, 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 Fund's assets to the Members has been completed,
shall first be paid on a pro rata basis in accordance with their
respective amounts;
(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 in
accordance with their respective amounts;
(3) Marwood shall be paid next, to the extent of any balance in their
account; and
(4) the Members shall next be paid on a pro rata basis in accordance with
the positive balances of their respective Capital Accounts after giving
effect to all allocations to be made to such Members' Capital Accounts for
20
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 Fund, the Board or other liquidator may distribute ratably in
kind any assets of the Fund; provided, however, that if any in-kind distribution
is to be made (I) the assets distributed in kind shall be valued pursuant to
Section 7.3 hereof as of the actual date of their distribution and charged as so
valued and distributed against amounts to be paid under Section 6.2(a) above,
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 Fund shall adopt for tax accounting purposes any accounting method that
the Board shall decide in its sole and absolute discretion is in the best
interests of the Fund. The Fund's accounts shall be maintained in U.S. currency.
(b) After the end of each Taxable Year, the Fund shall furnish to each Member
such information regarding the operation of the Fund and such Member's Units as
is necessary for such Member to complete federal, state, and local income tax or
information returns and any other tax information required by federal, state, or
local law.
(c) Except as otherwise required by the 1940 Act, or as may otherwise be
permitted by rule, regulation, or order, within 60 days after the close of the
period for which a report required under this Section 7.1(c) is being made, the
Fund shall furnish to each Member a semi-annual report and an audited annual
report containing the information required by such Act. The Fund shall cause
financial statements contained in each annual report furnished hereunder to be
accompanied by a certificate of independent public accountants based upon an
audit performed in accordance with generally accepted accounting principles. The
Fund may furnish to each Member such other periodic reports as 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 in its sole and absolute discretion unless
specifically and expressly otherwise provided for by the provisions of this
Agreement or required by law, and such determinations and allocations shall be
final and binding on all the Members.
(b) The Board in its sole and absolute discretion may make such adjustments to
the computation of Net Profit or Net Loss or any components thereof as it
considers appropriate to reflect fairly and accurately the financial results of
the Fund and the intended allocations thereof among the Members.
21
7.3 VALUATION OF ASSETS
(a) Except as may be required by the 1940 Act, the Board shall value or have
valued any Securities or other assets and liabilities of the Fund as of the
close of business on the last day of each Fiscal Period in accordance with such
valuation procedures as shall be established from time to time by the Board and
which conform to the requirements of the 1940 Act. In determining the value of
the assets of the Fund, no value shall be placed on the goodwill or name of the
Fund, or the office records, files, statistical data, or any similar intangible
assets of the Fund not normally reflected in the Fund's accounting records, but
there shall be taken into consideration any items of income earned but not
received, expenses incurred but not yet paid, liabilities, fixed or contingent,
and any other prepaid expenses to the extent not otherwise reflected in the
books of account, and the value of options or commitments to purchase or sell
Securities or commodities pursuant to agreements entered into prior to such
valuation date.
(b) The Fund will value interests in Investment Funds at their "fair value," as
determined in good faith by the Board, which value ordinarily will be the value
of an interest in an Investment Fund determined by the Investment Manager of the
Investment Fund in accordance with the policies established by the Investment
Fund, absent information indicating that such value does not represent the fair
value of the interest.
(c) The value of Securities and other assets of the Fund and the Net Asset Value
of the Fund as a whole determined pursuant to this Section 7.3 shall be
conclusive and binding on all of the Members and all parties claiming through or
under them in the absence of manifest error.
ARTICLE VIII: MISCELLANEOUS PROVISIONS
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT
(a) Except as otherwise provided in this Section 8.1, this Agreement may be
amended, in whole or in part, with: (i) the approval of the Board (including the
vote of a majority of the Independent Managers, if required by the 0000 Xxx) and
(ii) if required by the 1940 Act, the approval of the Members by such vote as is
required by the 0000 Xxx.
(b) Any amendment that would:
(1) increase the obligation of a Member to make any contribution to the
capital of the Fund; or
(2) reduce the Capital Account of a Member;
may be made only if (i) the written consent of each Member adversely affected
thereby is obtained prior to the effectiveness thereof or (ii) such amendment
does not become effective until (A) each Member has received written notice of
such amendment and (B) any Member objecting to such amendment has been afforded
a reasonable opportunity (pursuant to such procedures as may be prescribed by
the Board) to tender all of its Units for repurchase by the Fund.
(c) The power of the Board to amend this Agreement at any time without the
consent of the other Members as set forth in paragraph (a) of this Section 8.1
shall specifically include the power to:
22
(1) restate this Agreement together with any amendments hereto that have
been duly adopted in accordance herewith to incorporate such amendments in
a single, integrated document;
(2) amend this Agreement to effect compliance with any applicable law or
regulation (other than with respect to the matters set forth in Section
8.1(b) hereof) or to cure any ambiguity or to correct or supplement any
provision hereof that may be inconsistent with any other provision hereof;
and
(3) amend this Agreement to make such changes as may be necessary or
advisable to ensure that the Fund will not be treated as an association or
a publicly traded partnership taxable as a corporation as defined in
Section 7704(b) of the Code.
(d) The Board shall cause written notice to be given of any amendment to this
Agreement (other than any amendment of the type contemplated by clause (1) of
Section 8.1(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 Fund's assets appointed pursuant to
Section 6.2 hereof with full power of substitution, the true and lawful
representatives and attorneys-in-fact of, and in the name, place and stead of,
such Member, with the power from time to time to make, execute, sign,
acknowledge, swear to, verify, deliver, record, file, and/or publish:
(1) any amendment to this Agreement that complies with the provisions of
this Agreement (including the provisions of Section 8.1 hereof);
(2) any amendment to the Certificate required because this Agreement is
amended, including, without limitation, an amendment to effectuate any
change in the membership of the Fund; and
(3) all such other instruments, documents, and certificates that, in the
opinion of legal counsel to the Fund, may from time to time be required by
the laws of the United States of America, the State of Delaware or any
other jurisdiction in which the Fund shall determine to do business, or
any political subdivision or agency thereof, or that such legal counsel
may deem necessary or appropriate to effectuate, implement, and continue
the valid existence and business of the Fund as a limited liability
company under the Delaware Act.
(b) Each Member is aware that the terms of this Agreement permit certain
amendments to this Agreement to be effected and certain other actions to be
taken or omitted by or with respect to the Fund without such Member's consent.
If an amendment to the Certificate or this Agreement or any action by or with
respect to the Fund is taken in the manner contemplated by this Agreement, each
Member agrees that, notwithstanding any objection that such Member may assert
with respect to such action, the attorneys-in-fact appointed hereby are
authorized and empowered, with full power of substitution, to exercise the
authority granted above in any manner that may be necessary or appropriate to
23
permit such amendment to be made or action lawfully taken or omitted. Each
Member is fully aware that each other Member will rely on the effectiveness of
this special power-of-attorney with a view to the orderly administration of the
affairs of the Fund.
(c) This power-of-attorney is a special power-of-attorney and is coupled with an
interest in favor of each of the Managers and any liquidator of the Fund's
assets and, as such:
(1) shall be irrevocable and continue in full force and effect
notwithstanding the subsequent death or incapacity of any party granting
this power-of-attorney, regardless of whether the Fund, Board or
liquidator shall have had notice thereof; and
(2) shall survive a Transfer by a Member of such Member's Units, except
that where the Transferee thereof has been approved by the Board, this
power-of-attorney given by the Transferor shall survive such Transfer for
the sole purpose of enabling the Board to execute, acknowledge, and file
any instrument necessary to effect such Transfer.
8.3 NOTICES
Except as otherwise set forth in this Agreement, notices that may or are
required to be provided under this Agreement shall be made, if to a Member, by
regular mail, or if to the Fund or the Board, by hand delivery, registered, or
certified mail return receipt requested, commercial courier service, telex, or
telecopier, and shall be addressed to the respective parties hereto at their
addresses as set forth in the books and records of the Fund. Notices shall be
deemed to have been provided 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, permitted assigns, executors,
trustees, or other legal representatives, but the rights and obligations of the
parties hereunder may not be Transferred or delegated except as provided in this
Agreement and any attempted Transfer or delegation thereof that is not made
pursuant to the terms of this Agreement shall be void.
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2
The parties hereto acknowledge that this Agreement is not intended to, and does
not, set forth the substantive provisions contained in the 1940 Act and the
Fund's Form N-2 that affect numerous aspects of the conduct of the Fund's
business and of the rights, privileges, and obligations of the Members. Each
provision of this Agreement shall be subject to and interpreted in a manner
consistent with the applicable provisions of the 1940 Act and the Fund's Form N-
2.
24
8.6 CHOICE OF LAW
Notwithstanding the place where this Agreement or the Subscription Agreement may
be executed by any of the parties hereto, the parties expressly agree that all
the terms and provisions hereof shall be construed under the laws of the State
of Delaware, including the Delaware Act without regard to the conflict of law
principles of such State.
8.7 NOT FOR BENEFIT OF CREDITORS
The provisions of this Agreement are intended only for the regulation of
relations among past, present and future Members, Managers, and the Fund. This
Agreement is not intended for the benefit of creditors, in their capacity as
such, and no rights are granted to creditors, in their capacity as such, under
this Agreement.
8.8 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 Fund.
8.9 MERGER AND CONSOLIDATION
(a) The Fund may merge or consolidate with or into one or more limited liability
companies or other business entities pursuant to an agreement of merger or
consolidation that has been approved by the Board in the manner contemplated by
Section 18-209(b) of the Delaware Act or may sell, lease or exchange all or
substantially all of the Fund property, including its good will, upon such terms
and conditions and for such consideration when and as authorized by the Board.
(b) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, an agreement of merger or consolidation approved by the Board in
accordance with Section 18-209(b) of the Delaware Act may, to the extent
permitted by Section 18-209(f) of the Delaware Act, (i) effect any amendment to
this Agreement, (ii) effect the adoption of a new limited liability company
agreement for the Fund if it is the surviving or resulting limited liability
company in the merger or consolidation, or (iii) provide that the limited
liability company agreement of any other constituent limited liability company
to the merger or consolidation (including a limited liability company formed for
the purpose of consummating the merger or consolidation) shall be the limited
liability company agreement of the surviving or resulting limited liability
company; provided, however, that no such merger or consolidation shall have the
effect of amending this Agreement in a manner not permitted under Section 8.1.
8.10 PRONOUNS
All pronouns shall be deemed to refer to the masculine, feminine, neuter,
singular, or plural, as the identity of the person or persons, firm or
corporation may require in the context thereof.
8.11 CONFIDENTIALITY
(a) A Member may obtain from the Fund, for any purpose reasonably related to
such Member's Units, such information regarding the business affairs or assets
of the Fund as is just and reasonable under the Delaware Act, subject to
reasonable standards (including standards governing what information and
25
documents are to be furnished, at what time and location and at whose expense)
established by the Board.
(b) Each Member covenants that, except as required by applicable law or any
regulatory body, it will not divulge, furnish, or make accessible to any other
person the name and/or address whether business, residence, or mailing) of any
other Member (collectively, "Confidential Information") without the prior
written consent of the Board, which consent may be withheld in its sole and
absolute discretion.
(c) Each Member recognizes that in the event that this Section 8.11 is breached
by any Member or any of its owners, principals, partners, members, directors,
officers, employees, agents assigns, successors or legal representatives or any
of its Affiliates, including any of such Affiliates' owners, principals,
partners, members, directors, officers, employees, agents, assigns, successors
or legal representatives irreparable injury may result to the non-breaching
Members and the Fund. Accordingly, in addition to any and all other remedies at
law or in equity to which the non-breaching Members and the Fund may be
entitled, such Members and the Fund shall also have the right to obtain
equitable relief, including, without limitation, injunctive relief, to prevent
any disclosure of Confidential Information, plus the recovery of reasonable
attorneys' fees and other litigation expenses incurred in connection therewith.
In the event that the Fund determines that any of the Members or any of such
Member's owners, principals, partners, members, directors, officers, employees,
agents, assigns, successors or legal representatives or any of its Affiliates,
including any of such Affiliates' owners, principals, partners, members,
directors, officers, employees, agents, assigns, successors or legal
representatives should be enjoined from or required to take any action to
prevent the disclosure of Confidential Information, each of the Members agrees
that the Fund may, at its own expense, pursue in a court of appropriate
jurisdiction such injunctive relief.
8.12 CERTIFICATION OF NON-FOREIGN STATUS
Except as the Board may otherwise determine, in its sole and absolute
discretion, each Member or Transferee shall certify, upon admission to the Fund
and at such other times thereafter as the Board may request, that such Member is
a "United States Person" within the meaning of Section 7701(a)(30) of the Code,
with such certification to be made on forms to be provided by the Fund, and
shall notify the Fund within 60 days of any change in such Member's status.
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 provision of this Agreement is held to be invalid or unenforceable, such
invalidation or unenforceability shall not affect the validity or enforceability
of any other provision of this Agreement (or portion thereof).
8.14 FILING OF RETURNS
The Board or its designated agent shall prepare and file, or cause the
accountants of the Fund to prepare and file, a Federal information tax return in
26
compliance with Section 6031 of the Code and any required state and local income
tax and information returns for each tax year of the Fund.
8.15 TAX MATTERS PARTNER
(a) A Manager who is a Member shall be designated on the Fund's annual Federal
income tax return, and have full powers and responsibilities, as the Tax Matters
Partner of the Fund for purposes of Section 6231(a)(7) of the Code. Marwood
shall be the initial Tax Matters Partner of the Fund. In the event that no
Manager is a Member, the Members shall designate a Member to be Tax Matters
Partner in accordance with the procedures of Section 3.3 herein. Should any
Member be designated as the Tax Matters Partner for the Fund pursuant to Section
231(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 all of its
rights, powers, and authority to act as such Tax Matters Partner 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 Fund under Section
6231(a)(7) of the Code shall be indemnified and held harmless by the Fund 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 Member")
that holds or controls Units on behalf of, or for the benefit of, another person
or persons, or which Pass-Thru Member 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, demand, request or other
document in writing to all holders of beneficial interests in the Fund holding
such interests through such Pass-Thru Member. In the event the Fund shall be the
subject of an income tax audit by any Federal, state, or local authority, to the
extent the Fund 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
Fund and each Member thereof. All expenses incurred in connection with any such
audit, investigation, settlement, or review shall be borne by the Fund.
8.16 SECTION 754 ELECTION
In the event of a distribution of the Fund's property to a Member or an
assignment or other transfer (including by reason of death) of Units of a Member
in the Fund, at the request of a Member, the Board, in its sole and absolute
discretion, may cause the Fund to elect, pursuant to Section 754 of the Code, or
the corresponding provision of subsequent law, to adjust the basis of the Fund's
property as provided by Sections 734 and 743 of the Code.
8.17 USE OF NAMES "MARWOOD" AND "OLD FIELD MASTER FUND"
Marwood hereby grants to the Fund a royalty-free, non-exclusive license to use
the names "Marwood" and "Old Field Master Fund" respectively, in the name of the
Fund. Such license may, at such time as neither Marwood nor an Affiliate of
27
Marwood shall serve as an investment adviser to the Fund, or upon termination of
this Agreement, be terminated by Marwood, in which event the Fund shall promptly
take whatever action may be necessary to change its name and discontinue any
further use of the name "Marwood" and "Old Field Master Fund," as the case may
be, in the name of the Fund or otherwise. The names "Marwood" or "Old Field
Master Fund" may be used or licensed by Marwood, in connection with any of its
activities, or licensed by Marwood to any other party. Each of the undersigned
acknowledges having read this Agreement in its entirety before signing,
including the confidentiality clause set forth in Section 8.11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
MANAGER:
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx, Manager and President
INITIAL MEMBER:
MARWOOD ALTERNATIVE ASSET MANAGEMENT LLC
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: President
MEMBERS:
Each person who shall sign an investor application or certification and who
shall be accepted by the Board to the Fund as a Member.
28
