ASGI MESIROW INSIGHT FUND, LLC
(A Delaware Limited Liability Company)
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of April 1, 2012
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS 1
ARTICLE II: ORGANIZATION; ADMISSION OF MEMBERS 4
2.1 FORMATION OF LIMITED LIABILITY COMPANY 4
2.2 NAME 5
2.3 PRINCIPAL AND REGISTERED OFFICE 5
2.4 DURATION 5
2.5 BUSINESS OF THE FUND 5
2.6 BOARD OF MANAGERS 7
2.7 MEMBERS 8
2.8 BOTH MANAGERS AND MEMBERS 8
2.9 LIMITED LIABILITY 8
ARTICLE III: MANAGEMENT 9
3.1 MANAGEMENT AND CONTROL 9
3.2 ACTIONS BY THE BOARD OF MANAGERS 10
3.3 MEETINGS OF MEMBERS 10
3.4 CUSTODY OF THE FUND'S ASSETS 11
3.5 OTHER ACTIVITIES OF MEMBERS AND MANAGERS 11
3.6 DUTY OF CARE 12
3.7 INDEMNIFICATION 12
3.8 FEES, EXPENSES AND REIMBURSEMENT 14
ARTICLE IV: TERMINATION OF STATUS OF MANAGERS, TRANSFERS AND
REPURCHASES 16
4.1 TERMINATION OF STATUS OF A MANAGER 16
4.2 REMOVAL OF THE MANAGERS 16
4.3 TRANSFER OF SHARES OF MEMBERS 16
4.4 REPURCHASE OF SHARES 17
ARTICLE V: SHARES 19
5.1 SHARES 19
5.2 RIGHTS OF MEMBERS 20
5.3 ISSUANCE OF SHARES 20
5.4 REGISTER OF SHARES 20
ARTICLE VI: DISSOLUTION AND LIQUIDATION 21
6.1 DISSOLUTION 21
6.2 LIQUIDATION OF ASSETS 21
ARTICLE VII: ACCOUNTING, VALUATIONS, AND BOOKS AND RECORDS 22
7.1 ACCOUNTING AND REPORTS 22
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS 22
7.3 VALUATION OF ASSETS 22
7.4 DISTRIBUTIONS TO MEMBERS. 23
7.5 POWER TO MODIFY FOREGOING PROCEDURES 24
7.6 DIVIDEND REINVESTMENT PLAN 24
ARTICLE VIII: MISCELLANEOUS PROVISIONS 24
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT 24
8.2 SPECIAL POWER OF ATTORNEY 25
8.3 NOTICES 26
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS 26
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2 27
8.6 CHOICE OF LAW 27
8.7 NOT FOR BENEFIT OF CREDITORS 27
8.8 THIRD-PARTY BENEFICIARIES 27
8.9 MERGER AND CONSOLIDATION 27
8.10 PRONOUNS 28
8.11 CONFIDENTIALITY 28
8.12 SEVERABILITY 28
8.13 FILING OF RETURNS 29
8.14 USE OF NAMES "ALTERNATIVE STRATEGIES GROUP, INC.,"
"ASGI" AND "ASGI MESIROW INSIGHT FUND, LLC" 29
ASGI MESIROW INSIGHT FUND, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of ASGI Mesirow Insight Fund, LLC, formerly known as Xxxxx
Fargo Multi-Strategy 100 Master Fund I, LLC (the "Fund") is
dated as of April 1, 2012 by and among the Board of Managers
and the Members, 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 May 15, 2008.
WHEREAS, the Board of Managers and the Members desire to amend
and restate the provisions of the Fund's Limited Liability
Company Agreement as hereinafter set forth;
WHEREAS, the Members have approved this amendment and
restatement of the Limited Liability Company Agreement by
resolution of the Members duly adopted at a meeting of Members
on November 17, 2011;
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:
"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.
"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 Amended and Restated Limited Liability
Company Agreement, as further amended from time to time.
"ASGI" - Alternative Strategies Group, Inc., a North Carolina
corporation, or any successor thereof.
"BOARD" - The Board of Managers established pursuant to
Section 2.6.
"BUSINESS DAY" - A day on which banks are ordinarily open for
normal banking business in New York or such other day or days
as the Board may determine in its sole and absolute
discretion.
"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.
"CLASS" -- A class (within the meaning of Section 18-302 of
the Delaware Act) of Shares created pursuant to Section
3.1(e).
"CLASS A Shares" -- A Class of Shares issued by the Fund,
which Class shall be subject to the Investor Distribution and
Servicing Fee described in Section 3.8(d) and a Placement Fee
described in Section 3.8(e) and shall otherwise be subject to
the same provisions as are applicable hereunder to any Shares
or Class of Shares.
"CLASS I Shares" - A Class of Shares issued by the Fund, which
Class shall not be subject to the Investor Distribution and
Servicing Fee described in Section 3.8(d) or a Placement Fee
described in Section 3.8(e), and shall otherwise be subject to
the same provisions as are applicable hereunder to any Shares
or Class of Shares.
"CLOSING DATE" - The effective date of the Fund's election to
be classified as a corporation for federal income tax
purposes.
"CODE" - The United States Internal Revenue Code of 1986, as
amended from time to time, or any successor law.
"CONSTITUENT FUND" - Any of Xxxxx Fargo Multi-Strategy 100
Fund I, LLC; Xxxxx Fargo Multi-Strategy 100 TEI Fund I, LLC;
Xxxxx Fargo Multi-Strategy 100 Fund A, LLC; Xxxxx Fargo Multi-
Strategy 100 TEI Fund A, LLC.
"CONVERSION" - The conversion of the Fund from classification
as a partnership to classification as a corporation for U.S.
federal income tax purposes, electing to be treated as a
regulated investment company under Subchapter M of the Code,
and the reorganization of the Fund and each Constituent Fund
pursuant to an Agreement and Plan of Reorganization.
"DELAWARE ACT" - The Delaware Limited Liability Company Act,
as amended from time to time, or any successor law.
"FISCAL PERIOD" - The period commencing on the Closing Date,
and thereafter each period commencing on the day immediately
following the last Business 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; or
3) any day on which the Fund values any Shares of any
Member in connection with the issuance or repurchase of
such Shares.
"FISCAL YEAR" - The period commencing on the Closing Date and
ending on the next succeeding March 31, and thereafter each
period commencing on April 1 of each year and ending on the
immediately following March 31 (or on the date of the final
distribution pursuant to Section 6.2 hereof), unless and until
the Board shall elect another fiscal year for the Fund.
"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.
"FUND" - The limited liability company governed hereby.
"INDEMNITEES" - Each Manager of the Fund and the directors,
officers and employees of the Fund (including his or her
respective executors, heirs, assigns, successors, or other
legal representatives).
"INDEPENDENT MANAGERS" - Those Managers who are not
"interested persons" of the Fund as such term is defined by
the 1940 Act.
"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.
"MANAGER" - An individual 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.
"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 such Person
ceases to be a Member in accordance with the terms hereof and
the Delaware Act.
"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 Shares. With respect to any Class of
Shares, the total value of the portion of all assets of the
Fund attributable to such Class, less an amount equal to the
portion of all accrued debts, liabilities and obligations of
the Fund attributable to such Class, calculated before giving
effect to any repurchases of Shares of such Class, in
accordance with the Fund's Multi-Class Share Plan adopted
pursuant to Rule 18f-3 under the 1940 Act. The Net Assets of
the Fund will be computed as of the close of business on the
last Business Day of each Fiscal Period. In computing Net
Assets, the Fund will value its assets in accordance with
Section 7.3. 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" - With respect to any Share, Net Assets of
the applicable Class of Shares divided by the number of Shares
of such Class outstanding at the applicable date.
"PERSON" - Any individual, limited partnership corporation,
association, limited liability company or partnership, estate,
trust, governmental authority or other legal entity and his,
her or its heirs, executors, administrators, legal
representatives, successors and assigns where the context
requires.
"PLACEMENT AGENT" - Alternative Strategies Brokerage Services,
Inc. or any Person who may hereafter serve as a placement
agent for Shares pursuant to a placement agreement with the
Fund.
"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, any options thereon and any
interests, units or shares issued by an Investment Fund.
"SHARES" - The Shares of undivided 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. Shares of any Class shall be
issued at the Net Asset Value for such Class as of the date of
issuance.
"TAXABLE YEAR" - The period commencing on the Closing Date and
ending on the next succeeding March 31, and thereafter each
period commencing on April 1 of each year and ending on the
immediately following March 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 Share, including any right
to receive any distributions attributable to such Share, and
"TRANSFEROR" and "TRANSFEREE" mean the respective parties to a
Transfer.
"VALUATION DATE" - The date as of which the Fund values Shares
for purposes of determining the price at which Shares 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 by the
filing of the Certificate. 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 "ASGI Mesirow Insight 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 c/o Alternative
Strategies Group, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 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 invest in one or more other Investment 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 and the
Members, to the extent required by the 1940 Act. The Fund may
register its Shares under the Securities Act of 1933, as
amended, but need not so register Shares.
(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 enter into and perform any and all agreements
relating to the Conversion, including the issuance of
Shares and the admission of Members in accordance
therewith.
(2) 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, interests, shares or units of 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.
(3) 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 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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) Upon becoming a Member as a result of the Conversion or
by signing a subscription agreement, application or
certification in connection with the purchase or acquisition
of Shares, a Member as of the Closing Date shall be deemed to
have voted for the election of each of the Managers so
designated as of the Closing Date. After the Closing Date,
the Board may, subject to the provisions of paragraphs (b) and
(c) 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. After the Closing
Date, 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, ASGI 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 Shares for purchase by investors (including
through exchange) in such manner and at such times as may be
determined by the Board. Each subscription for Shares 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 or such other
consideration as the Board may consider appropriate or on such
other terms as may be set forth in the Fund's registration
statement on Form N-2. Subject to the foregoing, a Person may
be admitted to the Fund as a Member upon approval of the
Board, subject to the condition that such Person (other than a
Person becoming a Member as a result of the Conversion) shall
execute and deliver a subscription agreement, application,
certification or other document specified by the Board
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
Shares. The Board may, in its sole and absolute discretion,
suspend the offering of the Shares 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 purchase price paid by such Member for such Member's
Shares; provided, however, that, in connection with the
Conversion, members of any Constituent Fund who receive Shares
in connection with the Conversion shall be admitted as Members
effective as of the Closing Date.
2.8 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.
2.9 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 such Member's
investment in the Fund. Except as provided under the Delaware
Act or the 1940 Act, a Manager and any officer shall not be
liable for the Fund's debts, obligations or liabilities, and
any such officer or agent shall be deemed to be a Manager
within the meaning of Sections 18-101(10) and 18-303(a) of the
Delaware Act and of this Section 2.9.
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 stock corporation
organized under the Delaware General Corporation Law, (ii)
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 closed-end management investment
company registered under the 1940 Act that is organized as a
Delaware stock corporation, and (iii) 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 stock 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,
the initial Member or its assignee, 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 create one or more committees consisting
of one or more Board Members, and it 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 and
with this Agreement.
(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, subject to the voting powers of one
or more Classes created pursuant to this Section 3.1, to amend
and repeal such By-Laws; provided, however, that, to the
extent the By-Laws are inconsistent with the terms or
provisions of this Agreement, the terms and provisions of this
Agreement shall control. Unless the By-Laws specifically
require that Members authorize or approve the amendment or
repeal of a particular provision of the By-Laws or otherwise
required by the 1940 Act, 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
Shares; Shares of each such Class having such preferences,
voting powers and special or relative rights or privileges
(including conversion rights, if any) as the Board may
determine and as shall be set forth in a resolution adopted in
accordance with this Agreement and, if applicable, the By-
Laws. The Board may, without Member approval, amend this
Agreement to provide for the terms of such Class or Classes or
provide for the terms of such Class or Classes in a written
plan adopted by the Board pursuant to Rule 18f-3 under the
1940 Act.
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 or chair 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 ASGI in accordance with Section 2.6(c)) or by
Members holding Shares with an aggregate Net Asset Value of
25% or more of the aggregate Net Asset Value of all Shares,
and may be held at such time, date and place as the Board (or
ASGI, if applicable under Section 2.6(c)) shall determine.
The Board (or ASGI in accordance with Section 2.6(c)) 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 at
least 10 days 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 40% or more of the aggregate Net Asset Value of all
Shares 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 the Board, by ASGI (in connection with a
meeting under Section 2.6(c)), or by action of the Members
holding a majority, by aggregate Net Asset Value, of the
Shares 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 the aggregate Net
Asset Value of such Member's Share 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 having not less than the
minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all Shares entitled
to vote thereon were present and voted. The Board may
establish a record date for such vote not less than 2 days nor
more than 90 days prior to the date such request for consent
is first mailed as the record date for determining eligibility
to consent and the number of votes that each Member will be
entitled to give its consent with respect to, and shall
maintain for each record date a list setting forth the name of
each Member and the number of votes that each Member will be
entitled to give its consent with respect to.
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, managers 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.
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 his services to the Fund.
(b) Members that are not in breach of any obligation
hereunder or under their subscription agreement, application
or certification or under any other document pursuant to which
Members agree to be bound by all the terms and provisions of
this Agreement 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 Indemnitee
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 Fund or the past or present performance of services to the
Fund by such Indemnitee, except to the extent such loss,
claim, damage, liability, cost, or expense shall have been
finally determined in a decision on the merits in any such
action, suit, investigation, or other proceeding to have been
incurred or suffered by such Indemnitee by reason of willful
misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such
Indemnitee's 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 that, 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), shall
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 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 an Indemnitee is 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 Indemnitee's 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 Indemnitee acted in good faith and in
the reasonable belief that such actions were in the best
interests of the Fund and that such Indemnitee is 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 Indemnitee's 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 Indemnitee against
any liability to the Fund 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 offices.
(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 Fund or its
Members by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in
the conduct of such Indemnitee's 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).
(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 other than those specifically
required to be borne by ASGI pursuant to the advisory
agreement between the Fund and ASGI. 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) attorneys' fees and disbursements associated with
updating the Fund's registration statement, the private
placement memorandum and other offering related documents
(the "Offering Materials"); the costs of printing the
Offering Materials and distributing them to prospective
investors; and attorneys' fees and disbursements
associated with the preparation and review thereof;
(4) all costs and expenses associated with the
organization and operation of separate Investment Funds
managed by Investment Managers in which the Fund invests;
(5) 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, if any,
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) all costs and expenses associated with the Fund's
repurchase offers;
(8) the management fee payable to ASGI and certain out-
of-pocket expenses incurred by ASGI in its capacity as
the Fund's investment adviser;
(9) the fees payable to custodians and other Persons
providing administrative services to the Fund;
(10) the costs of a fidelity bond and any liability
insurance obtained on behalf of the Fund, the Board or
Indemnitees;
(11) all costs and expenses of preparing, setting in
type, printing, and distributing reports and other
communications to Members;
(12) all expenses associated with computing the Fund's
Net Asset Value, including any equipment or services
obtained for these purposes;
(13) all charges for equipment or services used in
communicating information regarding the Fund's
transactions among ASGI and any custodian or other agent
engaged by the Fund; and
(14) 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 ASGI, or any Affiliate of ASGI, acts as
general partner, managing member, manager or investment
adviser (or the equivalent), purchase insurance in such
amounts, from such insurers and on such terms as the Board
shall determine.
(d) The Fund shall pay to the Placement Agent with respect
to the aggregate Net Asset Value of all Class A Shares (to the
extent such Shares have been outstanding for at least one
year) an investor distribution and servicing fee for providing
investor services (the "Investor Distribution and Servicing
Fee"), which fee shall be calculated and accrued each calendar
month (before any repurchases of Class A Shares being made at
the end of the applicable month), at the rate of 0.75% per
annum of such aggregate Net Asset Value as of the end of such
month. Such Investor Distribution and Servicing Fee shall be
paid in arrears at the end of each calendar quarter and shall
be charged to the Net Asset Value of the Class A Shares.
(e) Investments in Class A Shares of less than $500,000 are
subject to a placement fee of 2.00%; investments in Class A
Shares of $500,000 or more and less than $1,000,000 are
subject to a placement fee of 1.00% and investments in Class A
Shares of $1,000,000 or more are subject to a placement fee of
0.50% (in each case, the "Placement Fee"). In the event that
a Member purchases Class A Shares on more than one occasion,
the Placement Fee charged at the time of any purchase shall be
charged at the rate that would apply if the aggregate of all
of the Member's current and prior purchases (based on amounts
invested) were being purchased at that time. The Placement
Fee may be waived in whole or in part by the Placement Agent
in its sole discretion.
ARTICLE IV: TERMINATION OF STATUS OF MANAGERS,
TRANSFERS AND REPURCHASES
4.1 TERMINATION OF STATUS OF A MANAGER
The status of a Manager shall terminate if the Manager (a)
shall die; (b) shall be adjudicated incompetent; (c) shall
voluntarily resign as a Manager; (d) shall be removed in
accordance with Section 4.2; (e) shall be certified by a
physician to be mentally or physically unable to perform his
or her duties hereunder; (f) 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; (g) shall have a
receiver appointed to administer the property or affairs of
such Manager; or (h) 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) with or without cause by
the vote or written consent of at least two thirds (2/3) of
the Managers not subject to the removal vote (but only if
there are at least three Managers serving on the Board at the
time of such vote or written consent) or (b) with or without
cause by, if at a meeting, a vote of the Members holding a
majority of the total number of votes present at such meeting
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 SHARES OF MEMBERS
(a) Shares 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, (ii)
in connection with the Conversion, Shares may be distributed
by the Constituent Funds to the members of the Constituent
Funds, or (iii) with the written consent of the Board (which
may be withheld in its sole and absolute discretion);
provided, however, that the Board may not consent to any
Transfer other than a Transfer (A) in which the tax basis of
the Shares 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), (B) to
members of the Member's immediate family (brothers, sisters,
spouse, parents, and children), (C) as a distribution from a
qualified retirement plan, or (D) 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 and absolute discretion, deems appropriate. In no event,
however, will any Transferee or assignee be admitted as a
Member without the consent of the Board, which may be withheld
in its sole and absolute discretion. Any pledge, Transfer, or
assignment not made in accordance with this Section 4.3 shall
be void.
(b) The Board may not consent to a Transfer of Shares of a
Member unless: (i) the Person to whom the Shares 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 Shares of
the Member are Transferred to a single Transferee or, after
the Transfer of less than all the Member's Shares, the Net
Asset Value of the Shares of each of the Transferee and
Transferor is not less than the amount as may be fixed from
time to time by the Board as the Fund's minimum investment, if
any. Any Transferee that acquires Shares 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 distributions allocable to the Shares so
acquired and to Transfer such Shares 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 Shares
with the approval of the Board, the Board shall promptly take
all necessary actions so that the Transferee to whom such
Shares 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 4.3 and (ii) any misrepresentation
by such Member in connection with any such Transfer.
4.4 REPURCHASE OF SHARES
(a) Except as otherwise provided in this Agreement, no
Member or other Person holding Shares shall have the right to
withdraw or tender to the Fund for repurchase of those Shares.
The Board from time to time, in its sole and absolute
discretion and on such terms and conditions as it may
determine, may cause the Fund to repurchase Shares pursuant to
written tenders. In determining whether to cause the Fund to
repurchase Shares pursuant to written tenders, the Board shall
consider the following factors, among others:
(1) whether any Members have requested to tender
Shares 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;
(5) the history of the Fund in repurchasing Shares;
and
(6) the economic condition of the securities markets.
The Board shall cause the Fund to repurchase Shares pursuant
to written tenders only on terms determined by the Board to be
fair to the Fund and to all Members (including Persons holding
Shares acquired from Members), as applicable, and otherwise in
a manner consistent with Sections 18-607 and 18-804 of the
Delaware Act, to the extent applicable.
(b) A Member who tenders for repurchase only a portion of
the Member's Shares will be required to continue to own Shares
having a Net Asset Value not less than amount as may be fixed
from time to time by the Board as the Fund's minimum
investment, if any. If a Member tenders an amount that would
cause Net Asset Value of the Member's remaining Shares 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 Shares. A Member who tenders for
repurchase Shares 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 Shares, which
charge will be withheld from the payment of the repurchase
price.
(c) The Board may cause the Fund to repurchase Shares of a
Member or any Person acquiring Shares from or through a Member
in the event that the Board determines or has reason to
believe that:
(1) such Shares have been Transferred in violation of
Section 4.3 hereof, or such Shares 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 Shares 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 Shares may subject the
Fund 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 Shares was
not true when made or has ceased to be true; or
(5) it would be in the best interests of the Fund, as
determined by the Board in its sole and absolute
discretion, for the Fund to repurchase such Shares.
(d) Provided that the Board shall have made a determination
to repurchase Shares, Shares will be valued for purposes of
determining their repurchase price as of the last Business Day
of each calendar quarter (a "Valuation Date"). Shares to be
repurchased pursuant to subsection 4.4(c) shall be tendered by
the affected Members, and payment for such Shares shall be
made by the Fund, at such times as the Fund shall set forth in
its notice to the affected Members. Shares being tendered by
Members pursuant to subsection 4.4(a) shall be tendered by
Members at least sixty-five (65) days prior to the applicable
Valuation Date. The Fund shall pay the repurchase price for
tendered Shares approximately, but no earlier than, thirty-
five (35) days after the applicable Valuation Date. The voting
rights of Members as provided in this Agreement with respect
to the tendered Shares 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 Shares 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 Shares repurchased by the Fund determined
as of the Valuation Date relating to such Shares (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. This amount will be subject to
adjustment upon completion of the annual audit of the Fund's
financial statements for the fiscal year in which the
repurchase is effected. Notwithstanding anything in the
foregoing to the contrary, the Board, in its sole and absolute
discretion, may pay any portion of the repurchase price in
Securities (or any combination of Securities and cash) having
a value, determined as of the Valuation Date relating to such
Shares, equal to the fair market value of such Securities.
Members may be compelled to accept any portion of the
repurchase price in Securities without regard to the
provisions of Section 18-605 of the Delaware Act.
ARTICLE V: SHARES
5.1 SHARES
The interest of the Members hereunder shall be divided into an
unlimited number of Shares. Minimum initial and additional
investment amounts may be established by the Board, in its
sole and absolute discretion. Members may make additional
investments in the Fund effective as of such times as the
Board, in its sole and absolute discretion, may permit,
subject to Section 2.7 hereof, but no Member shall be
obligated to make any additional investments in the Fund.
Initial and any additional investments in the Fund 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
investment.
All Shares issued in accordance with the terms hereof,
including, without limitation, Shares issued in connection
with a dividend in Shares or a split of Shares, shall be fully
paid and nonassessable when the consideration determined by
the Managers (if any) therefor shall have been received by the
Fund.
The ownership of Shares shall be recorded on the books of the
Fund or a transfer or similar agent. No certificates
certifying the ownership of Shares shall be issued except as
the Managers may otherwise determine from time to time. The
Managers may make such rules as they consider appropriate for
the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Fund as kept by the
Fund or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Members and as to the
number of Shares held from time to time by each Member. The
Managers may at any time discontinue the issuance of Share
certificates and may, by written notice to each Member,
require the surrender of Share certificates to the Fund for
cancellation. Such surrender and cancellation shall not affect
the ownership of Shares in the Fund.
5.2 RIGHTS OF MEMBERS
The Shares shall be personal property giving only the rights
in this Agreement specifically set forth or as otherwise
required by the Delaware Act. The ownership of Fund assets of
every description and the right to conduct any business herein
before described are vested exclusively in the Managers, and
the Members shall have no interest therein other than the
interest conferred by their Shares, and they shall have no
right to call for any partition or division of any property,
profits, rights or interests of the Fund nor can they be
called upon to share or assume any losses of the Fund. The
Shares shall not entitle the holder to preference, preemptive,
appraisal, conversion or exchange rights (except as specified
by the Managers when creating the Shares, as in preferred
shares).
Every Member by virtue of having become a Member shall be held
to have expressly assented and agreed to the terms of this
Agreement and the By-laws and to have become a party hereto
and thereto. The death of a Member during the continuance of
the Fund shall not operate to terminate the same nor entitle
the representative of any deceased Member to an accounting or
to take any action in court or elsewhere against the Fund or
the Managers, but only to the rights of said decedent under
this Agreement.
No Member shall be entitled to interest on any investment in
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 Shares pursuant to
section 4.4 hereof, or (ii) 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.
5.3 ISSUANCE OF SHARES
The Managers, in their discretion, may from time to time
without authorization or vote of the Members issue Shares and
additional Classes of Shares established pursuant to Section
3.1(e), in addition to the then issued and outstanding Shares
and Shares held in the treasury, to such party or parties and
for such amount and type of consideration, including cash or
property, at such time or times, and on such terms as the
Managers may determine, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and
businesses. The Managers may from time to time divide or
combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interest in such
Shares. Issuances and repurchases of Shares may be made in
whole Shares and/or fractions of a Share or multiples thereof
as the Managers may determine.
5.4 REGISTER OF SHARES
A register shall be kept at the offices of the Fund or any
transfer agent duly appointed by the Managers under the
direction of the Managers which shall contain the names and
addresses of the Members and the number of Shares held by them
respectively and a record of all transfers thereof. Separate
registers shall be established and maintained for each Class
or series of Shares. Each such register shall be conclusive
as to who are the holders of the Shares of the applicable
class or series of Shares and who shall be entitled to receive
dividends or distributions or otherwise to exercise or enjoy
the rights of Members. No Member shall be entitled to receive
payment of any dividend or distribution, nor to have notice
given to such Member as herein provided, until such Member has
given its address to a transfer agent or such other officer or
agent of the Managers as shall keep the register for entry
thereon. The Managers, in their discretion, may authorize the
issuance of share certificates and promulgate appropriate fees
therefor and rules and regulations as to their use.
ARTICLE VI: DISSOLUTION AND LIQUIDATION
6.1 DISSOLUTION
The Fund shall be dissolved only:
(1) upon the affirmative vote to dissolve the Fund by
the Board;
(2) upon the determination not to continue the
business of the Fund or the failure of Members to elect
the required number of Managers at a meeting called by
ASGI in accordance with Section 2.6(c) hereof;
(3) at any time there are no Members in accordance
with and subject to Section 18-801(a)(4) of the Delaware
Act; or
(4) the entry of a decree of judicial dissolution under
Section 18-802 of the Delaware Act.
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, in connection with clause (2) above, the conclusion
of the 60-day period 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 ASGI as the
liquidator, and ASGI shall liquidate the assets, and wind up
the business and affairs of the Fund, except that, if ASGI is
unable or unwilling to perform this function, the Board shall
appoint another Person to serve as liquidator, and, if the
Board is unable or unwilling to appoint another Person to
serve as liquidator, Members holding a majority of the total
number of votes eligible to be cast by all Members shall
appoint another Person to serve as liquidator, and such Person
shall promptly liquidate assets, and wind up the business and
affairs of the Fund. The proceeds from liquidation (after
establishment of appropriate reserves for contingencies in
such amount as the Board, ASGI or the liquidator shall deem
appropriate in its sole and absolute discretion as applicable)
shall be distributed in accordance with Section 18-804 of the
Delaware Act as follows:
(1) the debts of the Fund 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 in
accordance with priority and on a pro rata basis in
accordance with their respective amounts; and
(2) the Members shall next be paid on a pro rata basis
in accordance with the Net Asset Value of their Shares on
the date of the distributions under this Section
6.2(a)(2).
(b) Anything in this Section 6.2 to the contrary
notwithstanding, upon dissolution of the Fund, the Board or
other liquidator may distribute ratably to the Members in kind
any assets of the Fund; provided, however, that if any in-kind
distribution is to be made, 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. Members may be compelled to accept in-kind
distributions without regard to the provisions of Section 18-
605 of the Delaware Act.
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 Shares 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 the Board deems necessary or
appropriate in its sole and absolute discretion.
7.2 DETERMINATIONS BY THE BOARD OF MANAGERS
All matters concerning the determination of accounting matters
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 shall be final and binding on
all the Members.
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 Business 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, such that Securities and other assets owned by the
Fund will be valued at market value, if market quotations are
readily available, or will be valued at fair value, as
described below in 7.3(b). 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 in the Board's
determination and discretion that indicates 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.
7.4 DISTRIBUTIONS TO MEMBERS.
(a) The Managers shall from time to time distribute ratably
among the Members of any Class of Shares, or any series of any
such Class, in accordance with the number of outstanding full
and fractional Shares of such Class or any series of such
Class, such proportion of the net profits, surplus (including
paid-in surplus), capital, or assets held by the Fund as they
may deem proper or as may otherwise be determined in
accordance with this Agreement. Any such distribution may be
made in cash or property (including without limitation any
type of obligations of the Fund or any assets thereof) or
Shares of any Class or series or any combination thereof, and
the Managers may distribute ratably among the Members of any
Class of shares or series of any such Class, in accordance
with the number of outstanding full and fractional Shares of
such Class or any series of such Class, additional Shares of
any Class or series in such manner, at such times, and on such
terms as the Managers may deem proper or as may otherwise be
determined in accordance with this Agreement.
(b) Distributions pursuant to this Section 7.4 may be among
the Members of record of the applicable Class or series of
Shares at the time of declaring a distribution or among the
Members of record at such later date as the Managers shall
determine and specify.
(c) The Fund may always retain from the net profits such
amount as they may deem necessary to pay the debts or expenses
of the Fund or to meet obligations of the Fund, or as the
Managers otherwise may deem desirable to use in the conduct of
the Fund's affairs or to retain for future requirements or
extensions of the business.
(d) Inasmuch as the computation of net income and gains for
Federal income tax purposes may vary from the computation
thereof on the books, the above provisions shall be
interpreted to give the Managers the power in their discretion
to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts
sufficient to enable the Fund to avoid or reduce liability for
taxes.
7.5 POWER TO MODIFY FOREGOING PROCEDURES
Notwithstanding any of the foregoing provisions of this
Article VII, the Managers may prescribe, in their absolute
discretion except as may be required by the 1940 Act, such
other bases and times for determining the per share asset
value of the Fund's Shares or net income, or the declaration
and payment of dividends and distributions as they may deem
necessary or desirable for any reason, including to enable the
Fund to comply with any provision of the 1940 Act, or other
applicable laws or regulations, or any order of exemption
issued by the U.S. Securities and Exchange Commission, all as
in effect now or hereafter amended or modified.
7.6 DIVIDEND REINVESTMENT PLAN
The Managers may establish a dividend reinvestment plan for
any Class or series of Shares providing for the automatic
reinvestment of cash dividends on the Shares of such Class or
series in additional shares of such Class or series or of
another Class or series of Shares. Unless otherwise
determined by the Managers, all dividends on Shares of any
Class or series for which such a dividend reinvestment plan
has been established shall automatically be reinvested under
such plan unless the holder of such Shares shall affirmatively
elect, in such manner as specified by the Fund, not to
participate in the dividend reinvestment plan.
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) The execution of an instrument setting forth the
establishment and designation and the relative rights of any
Class of Shares in accordance with Section 3.1 hereof shall,
without any authorization, consent or vote of the Members,
effect an amendment of this Agreement. The Managers may also
amend this Agreement without the vote or consent of Members to
change the name of the Fund or to make such other changes as
do not have a materially adverse effect on the rights or
interests of Members hereunder or if they deem it necessary to
conform this Agreement to the requirements of applicable
Federal laws or regulations or the requirements of the
regulated investment company provisions of the Code, but the
Managers shall not be liable for failing so to do.
(c) No amendment may be made under this Section which shall
amend, alter, change or repeal any of the provisions of
Article VIII unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative
vote or consent of the holders of two-thirds of each Class of
Shares outstanding and entitled to vote (with each such Class
separately voting thereon on consenting thereto as a separate
Class). Such affirmative vote or consent shall be in addition
to the vote or consent of the holders of Shares otherwise
required by law.
(d) Nothing contained in this Agreement shall permit the
amendment of this Agreement to impair the exemption from
personal liability of the Members, Managers, officers,
employees and agents of the Fund or to permit assessments upon
Members.
(e) The power of the Board to amend this Agreement at any
time without the consent of the other Members as set forth in
this Section 8.1 shall specifically include the power to:
(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(d) 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) as provided in Section 3.1(e).
(f) 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(e) 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 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 Shares, 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 commercial courier
service 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 (a) when delivered by
hand, on the date delivered, (b) when sent by mail or
commercial courier service, when deposited, postage or fee
prepaid, and (c) when sent, if sent by 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.
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 THIRD-PARTY BENEFICIARIES
Each Indemnitee is a third-party beneficiary of Section 3.7.
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, in
each case without the vote or consent of the Members.
(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 Shares, 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 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, managers, directors, officers,
employees, agents assigns, successors or legal representatives
or any of its Affiliates, including any of such Affiliates'
owners, principals, partners, members, managers, 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,
managers, directors, officers, employees, agents, assigns,
successors or legal representatives or any of its Affiliates,
including any of such Affiliates' owners, principals,
partners, members, managers, 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 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).
8.13 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 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.
8.14 USE OF NAMES "ALTERNATIVE STRATEGIES GROUP, INC.,"
"ASGI" AND "ASGI MESIROW INSIGHT FUND, LLC"
ASGI hereby grants to the Fund a royalty-free, non-exclusive
license to use the name "Alternative Strategies Group, Inc."
"ASGI" or "ASGI Mesirow Insight Fund, LLC" (or an abbreviation
or derivation thereof) in the name of the Fund. Such license
may, at such time as neither ASGI nor an Affiliate of ASGI
shall serve as an investment adviser to the Fund, or at such
time as neither Mesirow Advanced Strategies, Inc. ("Mesirow")
nor an affiliate of Mesirow shall serve as a sub-adviser to
the Fund, upon fifteen (15) days notice by ASGI, or upon
termination of this Agreement, be terminated by ASGI, in which
event the Fund shall promptly take whatever action may be
necessary to change its name and discontinue any further use
of the names "Alternative Strategies Group, Inc.," "ASGI" and
"ASGI Mesirow Insight Fund, LLC" (or an abbreviation or
derivation thereof) in the name of the Fund or otherwise. The
names "Alternative Strategies Group, Inc.," "ASGI" or "ASGI
Mesirow Insight Fund, LLC" (or an abbreviation or derivation
thereof) may be used or licensed by ASGI in connection with
any of its activities or licensed by ASGI 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.
MANAGERS:
/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Manager
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Manager
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Manager
/s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Manager
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Manager
/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Manager
/s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Manager
MEMBERS:
Each Person who shall sign a form of proxy and consent to
merger and reorganization in connection with the Conversion,
subscription agreement, application or certification and who
shall be accepted by the Board to the Fund as a Member.
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