As filed with the U.S. Securities and Exchange Commission on July 23, 2004
Securities Act File No. 333-111561
Investment Company Act File No. 811-21480
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM N-2
(CHECK APPROPRIATE BOX OR BOXES)
|X| REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
|X| Pre-effective Amendment No. 2
| | Post-effective Amendment No.
|X| REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY
ACT OF 1940
|X| Amendment No. 2
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The Topiary Fund for Benefit Plan Investors (BPI) LLC
(Exact name of Registrant as specified in Charter)
25 DeForest Avenue
Summit, New Jersey 07901
(Address of principal executive offices)
Registrant's Telephone Number, including Area Code:
(908) 608-3000
--------------------
William G. Butterly, III, Esq. John T. Ferguson, Jr.
Managing Director and Senior Counsel Director
Deutsche Asset Management DB Absolute Return Strategies
25 DeForest Avenue 25 DeForest Avenue
Summit, NJ 07901 Summit, NJ 07901
(Name and address of agent for service)
Copy to:
John A. MacKinnon, Esq. John H. Kim, Esq.
Sidley Austin Brown & Wood LLP Director and Senior Counsel
787 Seventh Avenue Deutsche Asset Management
New York, New York 10019 25 DeForest Avenue
Summit, New Jersey 07901
--------------------
Approximate date of proposed public offering: As soon as practicable after the
effective date of this Registration Statement.
If any securities being registered on this form are to be offered on a delayed
or continuous basis in reliance on Rule 415 under the Securities Act of 1933,
as amended (the "Securities Act"), other than securities offered in connection
with dividend or interest reinvestment plans, check the following box. / X /
It is proposed that this filing will become effective (check appropriate box)
|X| when declared effective pursuant to Section 8(c).
| | immediately upon filing pursuant to paragraph (b)
| | on [o], 2004 pursuant to paragraph (b)
| | 60 days after filing pursuant to paragraph (a)
| | on [o], 2004 pursuant to paragraph (a)
If appropriate, check the following box:
| | THIS AMENDMENT DESIGNATES A NEW EFFECTIVE DATE FOR A PREVIOUSLY FILED
REGISTRATION STATEMENT.
| | THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING
PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT AND THE SECURITIES ACT
REGISTRATION NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE
SAME OFFERING IS ______.
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT
==================================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Being Offering Price Aggregate Registration
Securities Being Registered Registered(1) Per Interest(1) Offering Price(1) Fee(2)
----------------------------------------------------------------------------------------------------------------------------------
Limited liability company interests 1000 $1,000 $1,000,000 $81
==================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Transmitted prior to filing.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT, WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
NO PERSON MAY SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
Limited Liability Company Interests
The Topiary Fund for Benefit Plan Investors (BPI) LLC (the "Fund") is a
recently formed Delaware limited liability company registered under the
Investment Company Act of 1940, as amended ("1940 Act"), as a closed-end,
non-diversified management investment company. This Fund is designed for
investment primarily by tax-exempt and tax-deferred investors.
The Fund will invest substantially all of its investable assets into The
Topiary Offshore Fund for Benefit Plan Investors (BPI) LDC, a Cayman Islands
limited duration company with the same investment objectives as the Fund (the
"Offshore Fund"). The Offshore Fund in turn will invest substantially all of
its investable assets in The Topiary Master Fund for Benefit Plan Investors
(BPI) LLC, a registered investment company with the same investment objectives
as the Fund and the Offshore Fund (the "Master Fund"). The Offshore Fund will
serve solely as an intermediate entity through which the Fund will invest in
the Master Fund. The Offshore Fund will make no independent investment
decisions and has no investment or other discretion over the investable
assets. The Fund's investment objective is to generate long-term capital
appreciation by investing substantially all of its assets, through its
indirect investment in the Master Fund, in the securities of privately placed
investment vehicles, typically referred to as hedge funds ("Investment
Funds"), managed pursuant to various alternative or non-traditional investment
strategies. The Investment Funds in which the Master Fund will invest are
subject to special risks. See "Principal Risk Factors, Types of Investments,
and Investment Strategies of the Investment Funds."
This Prospectus applies to the offering of limited liability company interests
("Interests") of the Fund. The Interests will be offered in a continuous
offering at net asset value, plus any applicable sales charge, as described
herein. The Fund has registered [o] Interests for sale under the registration
statement to which this Prospectus relates. No person who is admitted as a
member of the Fund ("Member") will have the right to require the Fund to
redeem any Interest.
------------------------------
IF YOU PURCHASE AN INTEREST IN THE FUND, YOU WILL BECOME BOUND BY THE TERMS
AND CONDITIONS OF THE LIMITED LIABILITY COMPANY OPERATING AGREEMENT
("OPERATING AGREEMENT"). A COPY OF THE OPERATING AGREEMENT IS ATTACHED AS
APPENDIX B TO THIS PROSPECTUS.
THE INTERESTS WILL NOT BE LISTED ON ANY SECURITIES EXCHANGE AND IT IS NOT
ANTICIPATED THAT A SECONDARY MARKET FOR THE INTERESTS WILL DEVELOP. THE
INTERESTS ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
OPERATING AGREEMENT OF THE FUND. ALTHOUGH THE FUND MAY OFFER TO REPURCHASE
INTERESTS FROM TIME TO TIME, INTERESTS WILL NOT BE REDEEMABLE AT AN INVESTOR'S
OPTION NOR WILL THEY BE EXCHANGEABLE FOR INTERESTS OR SHARES OF ANY OTHER
FUND. AS A RESULT, AN INVESTOR MAY NOT BE ABLE TO SELL OR OTHERWISE LIQUIDATE
HIS OR HER INTEREST. SEE "PRINCIPAL RISK FACTORS RELATING TO THE FUND'S
STRUCTURE -- CLOSED-END FUND; LIMITED LIQUIDITY; INTERESTS NOT LISTED;
REPURCHASES OF INTERESTS." THE INTERESTS ARE APPROPRIATE ONLY FOR THOSE
INVESTORS WHO CAN TOLERATE A HIGH DEGREE OF RISK AND DO NOT REQUIRE A LIQUID
INVESTMENT.
This Prospectus provides information that you should know about the Fund
before investing. You are advised to read this Prospectus carefully and to
retain it for future reference. Additional information about the Fund,
including the Fund's statement of additional information ("SAI"), dated [o],
2004, has been filed with the U.S. Securities and
Exchange Commission ("SEC"). You can request a copy of the SAI without charge
by writing to Scudder Distributors, Inc., 222 South Riverside Plaza, Attn:
Correspondence 27th Floor, Chicago, IL 60606-1048; or by calling Scudder
Distributors, Inc. at 1-888-262-0695. The SAI is incorporated by reference
into this Prospectus in its entirety. The table of contents of the SAI appears
on page [o] of this Prospectus. You can obtain the SAI, and other information
about the Fund, on the SEC's website (http://www.sec.gov).
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE, NOR HAVE THEY MADE, NOR WILL THEY
MAKE, ANY DETERMINATION AS TO WHETHER ANYONE SHOULD BUY THESE SECURITIES. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------
Total(1)
Offering Amount (1)............................................... $[ ]
Sales Load(2)..................................................... $[ ]
Proceeds to the Fund(3)........................................... $[ ]
--------------
The Fund's distributor is Scudder Distributors, Inc.
The date of this Prospectus is [o], 2004.
(1) Scudder Distributors, Inc. acts as the distributor ("Distributor")
of the Fund's Interests on a best-efforts basis, subject to various
conditions. The Fund may also distribute Interests through other
brokers or dealers. The Fund will sell Interests only to investors
who certify that they are "Eligible Investors." See "Eligible
Investors." The minimum initial investment is $25,000, subject to
waiver. Pending investment in the Fund, the proceeds of the
continuous offering will be placed in an interest-bearing escrow
account by PFPC Inc. ("PFPC"), the Fund's escrow agent. After any
closing, the balance in the escrow account, including any interest
earned, will be invested pursuant to the Fund's investment policies.
See "Subscription for Interests--The Offering" and "Use of
Proceeds."
(2) Investments may be subject to a sales charge of up to 2.5%, subject
to waivers for certain types of investors. See "Subscription for
Interests." The Distributor retains the sales charge, and may
reallow to broker-dealers participating in the offering up to the
full applicable sales charge of 2.5%. The Distributor, DB Investment
Managers, Inc. ("DBIM" or the "Adviser"), or their affiliates also
may pay from their own resources additional compensation to brokers
or dealers in connection with the sale and distribution of the
Interests or servicing of investors.
(3) Assumes sale of all Interests currently registered at the net asset
value. The Interests are offered at the offering price (which is net
asset value), plus any applicable sales charge.
THE INTERESTS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED OR ENDORSED
BY, ANY BANK OR OTHER INSURED DEPOSITORY INSTITUTION, AND ARE NOT FEDERALLY
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE
BOARD, OR ANY OTHER GOVERNMENT AGENCY.
PROSPECTIVE INVESTORS SHOULD NOT CONSTRUE THE CONTENTS OF THIS PROSPECTUS AS
LEGAL, TAX, FINANCIAL, OR OTHER ADVICE. EACH PROSPECTIVE INVESTOR SHOULD
CONSULT WITH HIS OR HER OWN PROFESSIONAL ADVISERS AS TO THE LEGAL, TAX,
FINANCIAL, OR OTHER MATTERS RELEVANT TO THE SUITABILITY OF AN INVESTMENT IN
THE FUND.
THESE SECURITIES ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
OPERATING AGREEMENT OF THE FUND.
------------------------------
TABLE OF CONTENTS
Page
SUMMARY..........................................................................................................................1
SUMMARY OF FUND EXPENSES........................................................................................................10
USE OF PROCEEDS.................................................................................................................12
THE FUND'S STRUCTURE............................................................................................................12
INVESTMENT OBJECTIVES, METHODOLOGY, AND POLICIES................................................................................13
THE HEDGE FUND UNIVERSE.........................................................................................................17
PRINCIPAL RISK FACTORS RELATING TO THE FUND'S STRUCTURE.........................................................................21
PRINCIPAL RISK FACTORS, TYPES OF INVESTMENTS, AND INVESTMENT STRATEGIES OF THE INVESTMENT FUNDS.................................25
INVESTOR SUITABILITY............................................................................................................30
MANAGEMENT OF THE FUND..........................................................................................................30
FEES, ALLOCATIONS, AND EXPENSES.................................................................................................32
PORTFOLIO TRANSACTIONS..........................................................................................................34
VOTING..........................................................................................................................35
CONFLICTS OF INTEREST...........................................................................................................36
ELIGIBLE INVESTORS..............................................................................................................39
SUBSCRIPTION FOR INTERESTS......................................................................................................40
REPURCHASES OF INTERESTS........................................................................................................41
TRANSFERS OF INTERESTS..........................................................................................................44
NET ASSET VALUATION.............................................................................................................44
CAPITAL ACCOUNTS AND ALLOCATIONS................................................................................................47
TAXES...........................................................................................................................48
INVESTMENT BY EMPLOYEE BENEFIT PLANS............................................................................................53
SUMMARY OF THE OPERATING AGREEMENT..............................................................................................55
GENERAL INFORMATION.............................................................................................................57
APPENDIX A - INVESTOR CERTIFICATION............................................................................................A-1
APPENDIX B - LIMITED LIABILITY COMPANY OPERATING AGREEMENT.....................................................................B-1
i
SUMMARY
This is only a summary and does not contain all of the information that a
prospective investor should consider before investing in the Fund. Before
investing, a prospective investor in the Fund should carefully read the more
detailed information appearing elsewhere in this Prospectus and the Fund's SAI
and the terms and conditions of the Operating Agreement, each of which should
be retained by any prospective investor.
The Fund The Fund is a recently formed Delaware limited liability company that is registered under
the 1940 Act as a closed-end, non-diversified management investment company. The Fund's
Interests are registered under the Securities Act of 1933, as amended (the "Securities
Act"), but are subject to substantial limits on transferability and resale.
The Fund will invest substantially all of its investable assets in The Topiary Offshore
Fund for Benefit Plan Investors (BPI) LDC, a Cayman Islands limited duration company with
the same investment objectives as the Fund (the "Offshore Fund"). The Offshore Fund in turn
will invest substantially all of its investable assets in The Topiary Master Fund for
Benefit Plan Investors (BPI) LLC, a separate closed-end, non-diversified management
investment company with the same investment objectives as the Offshore Fund and the Fund
(the "Master Fund"). DB Investment Managers, Inc. ("DBIM" or the "Adviser"), an investment
adviser registered under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), will serve as investment adviser to the Master Fund.
The Master Fund is a "fund of funds" that provides a means for investors to participate in
investments in the securities of Investment Funds that pursue a variety of alternative or
non-traditional investment strategies. The Fund is intended to afford its members
("Members"), through an indirect investment in the Master Fund, access to a variety of
Investment Funds, the benefits of reduced risk through diversification and the benefits of
professional portfolio managers. An investment in a single professionally managed fund of
funds eliminates the need for investors to monitor or purchase securities in individual
hedge funds. The Fund is an appropriate investment only for those investors who can
tolerate a high degree of risk and do not require a liquid investment. The Fund is similar
to a private investment fund in that Interests in the Fund are sold only to certain high
net worth and sophisticated investors in large denominations, and in that investors in the
Fund will be subject to asset-based and performance-based fees. However, unlike a private
investment fund, the Fund has registered under the 1940 Act to facilitate investment by
certain investors subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and other "benefit plan investors" as defined in ERISA and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code" or the
"Code"). The Fund is designed for investment primarily by tax-exempt and tax-deferred
investors.
The Offering The initial closing date for subscriptions for Interests is [October 1, 2004] (or such
other date as the board of directors of the Fund (the "Board") may determine) (the "Initial
Closing Date"). The Initial Closing Date may be postponed for up to 90 days in the
discretion of the Board. The Fund will not commence operations until at least $25 million
in subscriptions has been accepted. If the Fund has not received $25 million in initial
subscriptions by the Initial Closing Date (as may be postponed), the Fund will return to
subscribers the amount of their subscriptions, plus accrued interest, if any. If the Fund
receives $25 million in initial subscriptions on the Initial Closing Date, it will commence
trading operations, and thereafter, initial and subsequent purchases of Interests generally
will be accepted monthly.
Use of Proceeds The Fund will invest the proceeds of the offering in the Offshore Fund, which will in turn
invest such proceeds in the Master Fund, as soon as practicable upon receipt of at least
$25 million in subscriptions and thereafter, after each month-end closing of the offering.
The Master Fund will invest such proceeds in accordance with its investment objective and
principal strategies as soon as possible following receipt of such proceeds. Pending the
investment of the proceeds of the offering pursuant to the Master Fund's investment
policies, a portion of the proceeds of the offering not invested in the Investment Funds
may be invested in short-term, high quality debt securities, money market funds, or other
cash equivalents. In addition, the Fund and the Master Fund may maintain a portion of the
proceeds of the offering in cash to meet operational needs.
Investment The Fund's, the Offshore Fund's, and the Master Fund's investment objective is to seek to
Objective and generate long-term capital appreciation. The Fund will attempt to achieve this objective by
Strategies investing all or substantially all of its investable assets, through the Offshore Fund, in
the Master Fund, which will invest in the securities of approximately 50 to 100 Investment
Funds managed pursuant to various alternative or non-traditional investment strategies,
which may be viewed as encompassing four broadly defined primary categories: Relative
Value; Event Driven; Equity Long/Short; and Global Macro.
Relative Value Category. Relative Value strategies generally seek to produce returns
without taking on specific market exposures. Investment Funds employing Relative Value
strategies seek to achieve attractive risk-adjusted returns through the use of both long
and short positions in fixed income and/or equity instruments, attempting to exploit
pricing inefficiencies that occur in the markets from time to time. Relative Value
Investment Funds may employ Convertible Arbitrage, Fixed Income Arbitrage, and Quantitative
Market Neutral Equity strategies.
Event Driven Category. Event Driven strategies generally seek to produce returns based on
anticipated outcomes of company specific or transaction specific situations, such as a
corporate merger, corporate restructuring, or pending bankruptcy. Event Driven Investment
Funds may employ Merger/Risk Arbitrage and Bankruptcy/Distressed strategies.
Long/Short Equity Category. Long/Short Equity strategies generally seek to produce returns
from investments in the global equity markets. These strategies are generally focused on
absolute returns and trade based on the manager's beliefs about specific equity markets,
regions, sectors, and/or securities. Although these strategies involve both long and short
positions, most managers will have a directional bias. Long/Short Equity Investment Funds
may employ Opportunistic, Global-International, Sector Specific, and Short-Biased
strategies.
Global Macro. Global Macro strategies generally focus on macro-economic opportunities
across numerous markets and instruments. Investments may be made in cash, securities,
futures contracts, derivative contracts, or options in the equity, fixed income, currency,
or commodity markets. Global Macro Investment Funds may employ Discretionary or Systematic
strategies.
The Adviser will employ a two-step process in structuring the Master Fund's portfolio of
Investment Funds. First, the Adviser will determine an allocation for the Master Fund's
assets across the universe of potential hedge fund strategies, seeking to achieve a
portfolio composition that demonstrates volatility that is lower than the broad-based
equity market and returns that are not correlated to either the broad-based equity or bond
markets. Using data categorizing and analyzing the historical returns of select managers
within each strategy in each category discussed above, the Adviser will employ a number of
quantitative modeling techniques in conjunction with fundamental research analysis to
ascertain an optimized allocation of Master Fund assets among primary categories and
underlying strategies.
Second, the Adviser will identify and evaluate potential investments based on specific
quantitative, qualitative, and due diligence criteria. Upon completion of its review, the
2
Adviser will select appropriate Investment Funds. The Master Fund may invest in Investment
Funds either directly or indirectly by purchasing a structured note or other derivative
instrument linked to such Investment Fund.
The Master Fund intends generally to limit investments in any one Investment Fund in its
portfolio to no more than 10% of the Fund's assets.
There can be no assurance that the Fund or the Master Fund will achieve its investment
objective or avoid substantial losses. The Fund's and the Master Fund's investment
objective may be changed by the Board without the vote of a majority of the Fund's
outstanding voting securities. Notice will be provided to Members prior to any such change.
Use of Leverage The Master Fund may, but does not currently intend to, borrow money to leverage its
investments in the Investment Funds. The Master Fund is authorized to borrow money to meet
repurchase requests, for bridge financing of investments in Investment Funds, and for cash
management purposes. The Fund is authorized to borrow money to meet repurchase requests and
for cash management purposes, but does not expect to ordinarily conduct such activities.
Borrowings will be subject to a 300% asset coverage requirement under the 1940 Act.
Borrowings by Investment Funds are not subject to this requirement. See "Principal Risk
Factors, Types of Investments, and Investment Strategies of the Investment Funds."
Risk Factors The Fund's and the Master Fund's investment program is speculative and entails substantial
risks. Each of the Fund, the Offshore Fund, and the Master Fund is a newly formed entity
and has no operating history. Interests in the Fund will be subject to substantial
restrictions on transferability and resale. The Fund may offer to repurchase Interests, but
an Interest will not be redeemable at a Member's option nor will it be exchangeable for
interests, units, or shares of any other fund, because the Fund is a closed-end investment
company. The Fund may repurchase less than the full amount of the Interest that a Member
requests to be repurchased. If the Fund does not repurchase a Member's Interest, the Member
may not be able to dispose of his or her Interest, even during periods of Fund
underperformance, due to the substantial restrictions on the transferability and resale of
the Interests.
The Fund's performance will depend upon the performance of the Investment Funds in the
Master Fund's portfolio and the Adviser's ability to select, allocate, and reallocate
effectively the Master Fund's assets among them. The Investment Funds generally will not be
registered as investment companies under the 1940 Act, and, therefore, the Master Fund will
not be entitled to the protections of the 1940 Act with respect to the Investment Funds. An
investment adviser of an Investment Fund may use investment strategies that differ from its
past practices and are not fully disclosed to the Adviser, and that involve risks that are
not anticipated by the Adviser. Investment Funds may have a limited operating history and
investment advisers of the Investment Funds may have limited experience in managing assets.
The value of the Master Fund's net assets (and, accordingly, the value of the Fund's
indirect investment in the Master Fund) will fluctuate primarily based on the fluctuation
in the value of the Investment Funds in which the Master Fund will invest. To the extent
that the portfolio of an Investment Fund is concentrated in securities of a single issuer
or issuers in a single industry or market, the risk of the Master Fund's investment in that
Investment Fund is increased. Investment Funds may be more likely than other types of funds
to engage in the use of leverage, short sales, and derivative transactions. An Investment
Fund's use of such transactions is likely to cause the value of the Investment Fund's
portfolio to appreciate or depreciate at a greater rate than if such techniques were not
used. The investment environment in which the Investment Funds invest may be influenced by,
3
among other things, interest rates, inflation, politics, fiscal policy, current events,
competition, productivity gains and losses, and technological and regulatory change.
The Fund will value its investment in the Master Fund through the Offshore Fund at the net
asset value provided by the Master Fund to the Offshore Fund and the Fund. The Master Fund
will compute its net asset value (total assets less total liabilities, including accrued
fees and expenses) as of the last "business day" of each month. As used in this Prospectus,
a "business day" is any day, other than Saturday, Sunday, or a day on which banking
institutions are authorized or obliged by law or regulation to close in New York. When the
Master Fund values its securities, market prices will not be readily available for its
investments in Investment Funds. Securities for which market prices are not readily
available (i.e., as is expected with respect to the Master Fund's investments in Investment
Funds) will be valued by the Master Fund at fair value as determined in good faith in
accordance with procedures approved by the Board. As the Adviser and the Board anticipate
that market prices will not be readily available for Investment Funds in which the Master
Fund will invest, the Master Fund's valuation procedures provide that the fair value of the
Master Fund's investments in Investment Funds ordinarily will be the value determined for
each Investment Fund in accordance with the Investment Fund's valuation policies. Although
the Master Fund will receive information from each Investment Fund regarding its investment
performance and investment strategy, the Adviser may have little or no means of
independently verifying this information. Prospective investors should be aware that
situations involving uncertainties as to the value of portfolio positions could have an
adverse effect on the Master Fund's net assets if the judgments of the Board, the Adviser,
or investment advisers to the Investment Funds should prove incorrect. Investment advisers
to the Investment Funds will only provide determinations of the net asset value of
Investment Funds on a weekly or monthly basis, in which event it will not be possible to
determine the net asset value of the Master Fund (and, therefore, the Fund) more
frequently.
The interests in the Investment Funds in which the Master Fund invests or plans to invest
will generally be illiquid. The Master Fund may not be able to dispose of Investment Fund
interests that it has purchased.
Each Investment Fund will be charged or be subject to an asset-based fee and may be subject
to performance-based allocations or fees payable or allocated to the investment adviser of
such Investment Fund. By investing in Investment Funds indirectly through the Fund, an
investor in the Fund (as an investor in the Master Fund through the Offshore Fund) bears
asset-based fees at the Master Fund level, in addition to any asset-based and
performance-based management fees and allocations at the Investment Fund level. Thus, an
investor in the Fund may be subject to higher operating expenses than if he or she invested
in another closed-end fund with a different investment focus. The performance-based
compensation received by the Adviser and an investment adviser of an Investment Fund also
may create an incentive for the Adviser or that investment adviser to make investments that
are riskier or more speculative than those that it might have made in the absence of the
performance-based allocation. That compensation may be based on calculations of realized
and unrealized gains made by the Adviser or the investment adviser without independent
oversight.
Investments by the Investment Funds in foreign financial markets, including markets in
developing countries, present political, regulatory, economic, and other risks that are
significant and that may differ in kind and degree from risks presented by investments in
the United States.
The investment activities of the Adviser, the investment advisers of the Investment Funds,
and their respective affiliates, and their directors, trustees, managers, members,
partners, officers, and employees, for their own accounts and other accounts they manage,
may give
4
rise to conflicts of interest in relation to the Fund. The Fund's operations may give rise
to other conflicts of interest.
To the extent the Master Fund will purchase non-voting securities of, or contractually
forego the right to vote its interests, in an Investment Fund, it will not be able to vote
on matters that require the approval of the investors of the Investment Fund, including a
matter that could adversely affect the Master Fund's investment in it.
The Offshore Fund will not be registered under the 1940 Act, and will not be subject to the
investor protections offered by that Act. The Fund, by investing in the Offshore Fund, will
not have the protections offered to investors in registered investment companies. The Fund,
however, will control the Offshore Fund, making it unlikely that the Offshore Fund will
take action contrary to the interests of investors in the Fund.
If there are changes in the laws of the United States and/or the Cayman Islands, under
which the Fund and the Offshore Fund, respectively, are organized, so as to result in the
inability of the Fund and/or the Offshore Fund to operate as set forth in this Prospectus,
there may be a substantial effect on investors. For example, if Cayman Islands law changes
such that the Offshore Fund must conduct business within the Cayman Islands, or pay taxes,
investors in the Fund would likely suffer decreased investment returns. If Cayman Islands
law, which requires a limit for a limited duration company's existence of thirty years,
were to change such that, at the end of thirty years, the Fund would not replace the
Offshore Fund with another identical limited duration company, the structure of the Fund
would be affected, potentially adversely. Such changes also could result in the inability
of the Fund to operate on a going-forward basis, resulting in the liquidation of the Fund.
Special tax risks are associated with an investment in the Fund. There can be no assurance
that the positions of the Fund relating to the consequences of its investment transactions
will be accepted by the tax authorities. See "Taxes" and "Principal Risk Factors Relating
to the Fund's Structure."
Management The Board has overall responsibility for the management and supervision of the operations
of the Fund and the Master Fund. The Offshore Fund has two members -- the Fund (to which
responsibility for the day-to-day management of the Offshore Fund has been delegated) and
the Adviser (which holds only a nominal, non-voting interest) -- and is effectively
controlled by the Board of the Fund.
The Adviser Under the supervision of the Board and pursuant to an investment management agreement (the
"Investment Management Agreement"), DBIM, an investment adviser registered under the
Advisers Act, will serve as the investment adviser for the Master Fund. Raymond C. Nolte,
Managing Director and Global Head of Funds of Funds of the Adviser, will be primarily
responsible for the Master Fund's day-to-day portfolio management, subject to oversight by
the Board.
The Adviser is an indirect, wholly owned subsidiary of Deutsche Bank AG ("Deutsche Bank"),
an international commercial and investment banking group. Deutsche Bank is a major global
banking institution that is engaged in a wide range of financial services activities,
including investment management; mutual funds; retail, private, and commercial banking;
investment banking; and insurance.
The Administrator; PFPC, Inc. ("PFPC") will serve as the administrator of the Fund, the Offshore Fund, and
the Transfer Agent the Master Fund. The Fund will compensate PFPC for providing administrative services. [PFPC
will also be entitled to compensation from the Master Fund in respect of services rendered
to the Master Fund. Such compensation will be paid at market rates.] The Fund has also
retained PFPC to serve as transfer agent, and will compensate PFPC for providing investor
services, including services relating to transfer agency, processing of subscriptions,
5
and account-related functions, among other services.
Fees, Incentive Investment Management Fee. The Master Fund will pay to the Adviser, and the Fund as an
Allocation, and indirect investor in the Master Fund will bear, an investment management fee (the
Expenses "Investment Management Fee") at an annual rate equal to 1.0% of the Master Fund's month-end
net assets, including assets attributable to the Adviser (or its affiliates) and before
giving effect to any repurchases. The Investment Management Fee accrues monthly and is
payable at the end of each quarter. The Investment Management Fee will be paid to the
Adviser out of the Master Fund's assets and debited against Members' Capital Accounts.
Incentive Allocation. As of each March 31, upon any repurchases of Interests (solely with
respect to the Interests repurchased), and upon termination of the Fund (each, a
"Performance Period"), a reallocation (the "Incentive Allocation") will be made from the
Capital Account of each Member to the Capital Account of the Adviser equal to 10% of the
amount, if any, by which the net profit allocated to such Member's Capital Account for such
Performance Period in excess of the Hurdle (based on 90-day U.S. Treasury bill rates) for
such Performance Period exceeds the positive balance of such Member's Loss Carryforward
Account (as defined herein).
The Incentive Allocation will be applied on a "high water mark" basis such that in the
event a Capital Account suffers a net loss in a particular Performance Period, no Incentive
Allocation will be made with respect to such Performance Period or any subsequent
Performance Period, until such net loss is first recovered (taking into account interim
repurchases, if any).
Administrative Fee. PFPC will provide certain administrative services to the Fund, the
Offshore Fund, and the Master Fund. For its services to the Fund, the Fund will pay PFPC an
administrative fee at an annual rate equal to [o]% of the Fund's month-end net assets based
on the Fund's proportional investment in the Master Fund. The Offshore Fund is expected to
have minimal expenses, and the Adviser, or an affiliate of the Adviser, has agreed to bear
all costs related to the Offshore Fund. [The Master Fund will also pay PFPC for its
services as administrator of the Master Fund.]
Distribution Expenses. Investments may be subject to a sales charge of up to 2.5% of the
subscription amount. The Sales Charge may be waived or adjusted at the sole discretion of
the placement agent, and, without limiting the foregoing, is expected to be waived for
institutional investors and certain persons associated with the Adviser and its affiliates.
Other Expenses. The Fund and the Master Fund will each bear their respective operational
expenses, including, without limitation: ongoing sales and administrative expenses; due
diligence expenses; research expenses; legal and recording fees and expenses; directors'
fees; accounting, audit, and tax preparation expenses; pro rata costs and expenses of the
Investment Funds (generally, management fees of 1% to 3% per annum, and an incentive fee or
profit allocation of 15% to 25% of net profits); costs and expenses of utilizing credit
facilities; tax, litigation, and extraordinary expenses, if any; interest expenses; bank
charges; brokerage commissions; short dividends; and other similar expenses. The Adviser
and the Administrator will each bear the costs of providing its respective services to the
Fund, the Master Fund, and the Offshore Fund, including its general overhead, salary, and
office expenses.
The expenses of the offering of Interests will be expensed as incurred. The organizational
expenses of the Fund, the Offshore Fund, and the Master Fund will be amortized during the
first fiscal year of the Fund's operations.
6
Repurchases of No Member will have the right to require the Fund to redeem its Interest in the Fund. The
Interests Fund from time to time may offer to repurchase Interests. These repurchases will be made at
such times and on such terms as may be determined by the Board from time to time in its
complete and absolute discretion. The Fund may repurchase less than the full amount of
Interests that Members request to be repurchased. In determining whether the Fund should
repurchase Interests from Members pursuant to repurchase requests, the Board will consider,
among other things, the recommendation of the Adviser. The Adviser expects that it will
recommend to the Board that the Fund offer to repurchase Interests from Members on a
semi-annual basis. A Member who tenders some but not all of the Member's Interest for
repurchase will be required to maintain a minimum Capital Account balance of $25,000. The
Fund reserves the right to reduce the amount to be repurchased from a Member so that the
required Capital Account balance is maintained.
The Fund's assets will consist primarily of its interest in the Master Fund, which will be
held through the Offshore Fund. Therefore, in order to finance the repurchase of Interests
pursuant to tender offers, the Fund will have to liquidate all or a portion of its interest
in the Master Fund. The Fund controls the Offshore Fund, and, because interests in the
Master Fund may not be transferred, the Fund may withdraw a portion of its interest only
pursuant to repurchase offers by the Master Fund made to the Offshore Fund, and a
distribution from the Offshore Fund to the Fund of the proceeds. The Fund will not conduct
a repurchase offer for Interests unless the Master Fund simultaneously conducts a
repurchase offer for the Master Fund's interests. The Master Fund's Board of Directors
expects that the Master Fund will conduct repurchase offers on a semi-annual basis in order
to permit the Fund to meet its obligations under its repurchase offers. However, there can
be no assurance that the Master Fund's Board will, in fact, decide to undertake a
repurchase offer. The Fund cannot make a repurchase offer larger than a repurchase offer
made by the Master Fund. The Master Fund will make repurchase offers, if any, to all of its
investors, including the Fund (through the Offshore Fund), on the same terms, which may
affect the size of the Master Fund's repurchase offers. Subject to the Master Fund's
investment restriction with respect to borrowings, the Master Fund may borrow money or
issue debt obligations to finance its repurchase obligations pursuant to any such
repurchase offer.
Allocation of Profit The net profits or net losses of the Fund (including, without limitation, net realized gain or
and Loss loss and the net change in unrealized appreciation or depreciation of securities positions)
will be credited to or debited against the Capital Accounts of Members at the end of each
fiscal period in accordance with their respective investment percentages for the period.
Each Member's investment percentage will be determined by dividing as of the start of a
fiscal period the balance of the Member's Capital Account by the sum of the balances of the
Capital Accounts of all Members of the Fund.
Eligible Investors Each prospective investor (and Members who subscribe for additional Interests) will be
required to certify that the Interest purchased is being acquired directly or indirectly
for the account of an "Eligible Investor" as defined herein. An "Eligible Investor"
includes, among other investors, a person that is: (i) an "accredited investor" as defined
in Regulation D under the Securities Act; and (ii) a "qualified client" as defined in Rule
205-3 of the Advisers Act (except as otherwise determined by the Fund). In addition,
because the Fund is designed for investment primarily by tax-exempt and tax-deferred
investors, investors must qualify as tax-exempt or tax-deferred for U.S. federal income tax
purposes. The relevant investor qualifications are set forth in the investor certification
that each investor must sign in order to invest in the Fund, a form of which appears as
Appendix A to this Prospectus.
Investor Suitability An investment in the Fund involves a considerable amount of risk. It is possible that some
or all of an investor's investment may be lost. Before making an investment decision, an
investor should consider (among other things): (i) the suitability of the investment with
7
respect to its investment objectives and personal situation; and (ii) other factors,
including its personal net worth, income, age, risk tolerance, tax situation, and liquidity
needs. An investor should invest in the Fund only money that it can afford to lose, and it
should not invest in the Fund money to which it will need access in the short-term or on a
frequent basis. In addition, all investors should be aware of how the Fund's investment
strategies fit into their overall investment portfolio because the Fund is not designed to
be, by itself, a well-balanced investment for a particular investor.
Purchase of The Fund may accept both initial and additional applications by investors to purchase
Interests Interests at such times as the Fund may determine, subject to the receipt of cleared funds
two business days prior to the acceptance date set by the Fund. Pending investment in the
Fund, the proceeds of the continuous offering will be placed in an interest-bearing escrow
account by PFPC, the Fund's escrow agent. After any closing, the balance in the escrow
account, including any interest earned, will be invested pursuant to the Fund's investment
policies. Initial and subsequent purchases will generally be accepted monthly. The Fund
reserves the right to reject in its complete and absolute discretion any application for
Interests in the Fund. The Fund also reserves the right to suspend purchases of Interests
at any time. Generally, the minimum initial investment in the Fund is $25,000.
Taxes The Fund and the Master Fund intend to operate so that each will be treated as a
partnership for Federal income tax purposes and not as an association or a "publicly traded
partnership" taxable as a corporation for Federal income tax purposes. Accordingly, neither
the Fund nor the Master Fund should be subject to federal income tax, and each Member will
be required to report on its own annual tax return such Member's share of the Fund's
taxable income, gain, or loss. With respect to the Fund's investments in Investment Funds,
see "Taxes-- Investment by Qualified Retirement Plans and Other Tax-Exempt Investors."
If it were determined that the Fund or the Master Fund should be treated as an association
or a publicly traded partnership taxable as a corporation, the taxable income of the Fund
would be subject to corporate income tax and any distributions of profits from the Fund
would be treated as dividends.
The Offshore Fund will be classified as a corporation for Federal income tax purposes.
The Offshore Fund is interposed between the Fund and the Master Fund and will serve as an
intermediate entity so that any unrelated business taxable income ("UBTI") generated by
certain investment activities of the Master Fund, through the Investment Funds, is not
ultimately incurred by a Member. The Offshore Fund is organized as a Cayman Islands limited
duration company. The Offshore Fund has two members: the Fund, which serves as the managing
member, and the Adviser, which holds only a nominal non-voting interest in the Offshore
Fund. The Fund and the Adviser have delegated all management of the Offshore Fund to the
Fund, and the Fund is the managing member of the Offshore Fund. The Offshore Fund has no
independent investment discretion or other decision-making capabilities and effectively is
controlled by the Board of the Fund. As a limited duration company, the Offshore Fund
offers its members limited liability and is treated as a corporation under the taxation
laws of the Cayman Islands and the United States. Any income received by the Offshore Fund
will be distributed to the Fund as dividend income. UBTI should therefore not flow through
the Offshore Fund to Members of the Fund. Eligible Investors should therefore not receive
UBTI that would otherwise be taxable income despite their tax-deferred or tax-exempt
status. See "Taxes."
8
ERISA Plans and Because the Master Fund, in which the Fund will invest substantially all of its investable
Other Tax-Exempt assets through the Offshore Fund, and the Investment Funds may use leverage, investors
Entities subject to ERISA, and other tax-exempt entities, including individual retirement accounts
("IRA") and Keogh Plans ordinarily could incur income tax liability to the extent that the
Master Fund's transactions are treated as giving rise to UBTI. The Fund, however, because
of its structure, should not pass UBTI on to its investors. See "Taxes -- Investment by
Qualified Retirement Plans and Other Tax-Exempt Investors." The Fund's assets will not be
considered to be "plan assets" for purposes of ERISA's fiduciary responsibility and
prohibited transaction rules or similar provisions of Section 4975 of the Code.
Term The Fund's term will be perpetual unless the Fund is otherwise terminated under the terms
of the Operating Agreement.
Reports to Members The Fund will furnish to Members as soon as practicable after the end of each taxable year
such information as is necessary for them to complete Federal and state income tax or
information returns along with any tax information required by law. The Master Fund does
not expect to receive tax information from Investment Funds in a sufficiently timely manner
to enable the Master Fund (and, therefore, the Fund) to prepare its information returns in
time for members to file their returns without requesting an extension of the time to file
from the Internal Revenue Service ("IRS") (or state taxing agencies). Accordingly, Members
should be prepared to obtain extensions of time to file their income tax returns. Members
are encouraged to consult with their tax advisers concerning how such delayed reporting may
affect them. The Fund anticipates sending Members an unaudited semi-annual report and an
audited annual report within 60 days after the close of the period for which the report is
being made, or as required by the 1940 Act.
Fiscal Year For accounting purposes, the Fund's fiscal year will be the period ending on March 31. The
Fund's, the Offshore Fund's, and the Master Fund's taxable year will be the period ending
December 31.
NO BROKER-DEALER, SALESPERSON, OR OTHER PERSON IS AUTHORIZED TO GIVE AN
INVESTOR ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS
PROSPECTUS. AS A PROSPECTIVE INVESTOR, YOU MUST NOT RELY ON ANY UNAUTHORIZED
INFORMATION OR REPRESENTATIONS THAT ANYONE PROVIDES TO YOU. THIS PROSPECTUS IS
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES IT
DESCRIBES, BUT ONLY UNDER THE CIRCUMSTANCES AND IN JURISDICTIONS WHERE AND TO
PERSONS TO WHICH IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS CURRENT ONLY AS OF THE DATE OF THIS PROSPECTUS.
THE INVESTMENT FUNDS IN WHICH THE MASTER FUND WILL INVEST MAY PURSUE VARIOUS
INVESTMENT STRATEGIES AND ARE SUBJECT TO SPECIAL RISKS. THE INTERESTS WILL NOT
BE LISTED ON ANY SECURITIES EXCHANGE AND IT IS NOT ANTICIPATED THAT A
SECONDARY MARKET FOR THE INTERESTS WILL DEVELOP. THE INTERESTS WILL ALSO BE
SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE OPERATING AGREEMENT OF
THE FUND AND IN COMPLIANCE WITH FEDERAL AND STATE SECURITIES LAWS. THE
INTERESTS WILL NOT BE REDEEMABLE AT AN INVESTOR'S OPTION NOR WILL THEY BE
EXCHANGEABLE FOR INTERESTS OF ANY OTHER FUND BECAUSE THE FUND IS A CLOSED-END
INVESTMENT COMPANY. AS A RESULT, AN INVESTOR MAY NOT BE ABLE TO SELL OR
OTHERWISE LIQUIDATE HIS OR HER INTEREST. THE INTERESTS ARE APPROPRIATE ONLY
FOR THOSE INVESTORS WHO CAN TOLERATE A HIGH DEGREE OF RISK AND DO NOT REQUIRE
A LIQUID INVESTMENT.
9
SUMMARY OF FUND EXPENSES
The following table summarizes the aggregate expenses of the Fund, the
Offshore Fund, and the Master Fund and is intended to assist Members and
potential Members in understanding the various costs and expenses that they
will bear, directly or indirectly, by investing in the Fund. Each figure below
relates to a percentage of the Fund's average net asset value at month-end
over the course of a year. The expenses associated with investing in a "fund
of funds," such as the Fund, are generally higher than those of other types of
funds that do not invest primarily in other investment vehicles. This is
because the members of a fund of funds also indirectly pay a portion of the
fees and expenses, including performance-based compensation, charged at the
underlying Investment Fund level. These indirect items are not reflected in
the following chart or the example below. The fees associated with an
Investment Fund will generally include an investment management fee ranging
from 1% to 3% (annualized) of the average net asset value of the Fund's
investment, plus incentive allocations or fees generally ranging from 15% to
25% of net profits earned by the Investment Fund.
Member Transaction Expenses
Maximum Sales Charge (Load) (as a percentage of 2.50%
the offering price)(1).......................................................
Maximum Sales Charge on Reinvested Distributions............................. None
Maximum Early Withdrawal Charge.............................................. None
Annual Expenses (as a percentage of net assets attributable to Interests)
Investment Management Fee(2)................................................. 1.00%
Administrative Fee(2)........................................................ [ ]%
Other Expenses(3)............................................................ [ ]%
Total Annual Expenses.......................................................... [ ]%
Incentive Allocation (as a percentage of net profits, subject to a Hurdle 10% (4)
Amount)
--------------------
(1) The sales charge is subject to waivers for certain types of
investors. See "Subscription for Interests."
(2) The Fund will bear, as an indirect investor in the Master Fund, its
allocable portion of the 1.00% Investment Management Fee charged to
the Master Fund. No additional investment management fee will be
payable to the Adviser by the Offshore Fund or the Fund. See
"Management of the Fund" and "Fees, Allocations, and Expenses" for
additional information.
(3) Reflects all expected ordinary operating expenses of the Fund, and
the Fund's allocable portion of all expected ordinary expenses of
the Offshore Fund and the Master Fund, other than the Investment
Management Fee. The expenses of the offering of Interests will be
expensed as incurred. The organizational expenses of the Fund, the
Offshore Fund, and the Master Fund will be amortized during the
first fiscal year of the Fund's operations.
(4) An Incentive Allocation of 10% of the net profits in excess of the
Hurdle Amount, if any, of the Capital Account of each Member will be
made to the Adviser in respect of such Capital Account with respect
to each Performance Period. The Incentive Allocation will be applied
on a "high water mark" basis such that in the event a Capital
Account incurs a net loss with respect to one Performance Period, no
Incentive Allocation will be made for any subsequent Performance
Period until such net loss is first recovered (taking into account
interim Repurchases, if any).
10
The following hypothetical example is intended to help you compare the cost of
investing in the Fund with the cost of investing in other funds. The example
assumes that all distributions are reinvested at net asset value and that the
percentage amounts listed under annual expenses remain the same in the years
shown. The tables and the assumption in the hypothetical example of a 5%
annual return are required by regulation of the SEC applicable to all
investment companies; the assumed 5% annual return is not a prediction of, and
does not represent, the projected or actual performance of the Interests. See
"Fees, Allocations, and Expenses" for a more complete description of the
Fund's costs and expenses.
THE FOLLOWING EXAMPLE SHOULD NOT BE CONSIDERED A REPRESENTATION OF PAST OR
FUTURE EXPENSES, BECAUSE ACTUAL EXPENSES MAY BE GREATER OR LESS THAN THOSE
SHOWN.
Example
You would pay the following expenses on 1 YEAR 3 YEARS(2) 5 YEARS(2) 10 YEARS(2)
a $1,000 investment, assuming a 5% annual ------ ---------- ---------- -----------
return(1)............ $[ ] $[ ] $[ ] $[ ]
(1) Actual expenses may be higher or lower than the amounts shown in the fee
table and, consequently, the actual expenses incurred by an investor may
be greater or less than the amounts shown in the Example.
(2) The expenses listed for the three-, five-, and ten-year periods are based
on the Fund's total estimated operating expenses.
11
USE OF PROCEEDS
The Fund expects that the proceeds of the offering, excluding the amount of
any sales charges paid by investors and net of the Fund's ongoing fees and
expenses, will be invested by the Fund in the Offshore Fund, and then by the
Offshore Fund in the Master Fund, and by the Master Fund in Investment Funds,
in accordance with the Fund's, the Offshore Fund's, and the Master Fund's
investment objective and strategies as soon as practicable after the Initial
Closing Date (assuming the Fund receives at least $25 million in subscriptions
prior to the Initial Closing Date) and, thereafter, after each month-end
closing of the offering. Such proceeds will be invested together with any
interest earned in the Fund's escrow account prior to such closing.
Pending the investment of the proceeds from the sale of Interests in
Investment Funds pursuant to the Fund's, the Offshore Fund's, and the Master
Fund's investment objective and strategies, the Master Fund may invest a
portion of the proceeds of the offering that is not invested in Investment
Funds, which may be a substantial portion of the proceeds of the offering, in
short-term, high quality debt securities, money market funds, or other cash
equivalents. In addition, the Fund and the Master Fund may maintain a portion
of the proceeds in cash to meet operational needs. The Master Fund may be
prevented from achieving its objective during any time in which the Master
Fund's assets are not substantially invested in accordance with its principal
investment strategies.
THE FUND'S STRUCTURE
The Fund, a registered, closed-end, non-diversified management investment
company, will invest substantially all of its investable assets in the
Offshore Fund, which in turn will invest substantially all of its assets in
the Master Fund. The Master Fund is a separate, registered, closed-end,
non-diversified management investment company with the same investment
objectives as the Fund and the Offshore Fund. The Board does not believe that
this multi-level structure provides the Fund with any economic or
administrative benefit. However, the Board believes that the fees and expenses
of the Fund incurred under its current structure would be substantially the
same whether the Fund invested in the Master Fund via the Offshore Fund,
invested in the Master Fund directly, or invested directly into Investment
Funds.
The Offshore Fund will not be registered under the 1940 Act. The Offshore Fund
will serve as a conduit entity through which the Fund will invest in the
Master Fund, and has no investment or other discretion over its assets. The
Offshore Fund will serve as a pass-through entity whereby UBTI generated by
the investment activities of the Master Fund (and Investment Funds) should not
be ultimately incurred by a Member. The Offshore Fund is organized under the
laws of the Cayman Islands as a limited duration company, and, accordingly,
may generally only carry on activities in the Cayman Islands in furtherance of
its non-Cayman Islands activities. The Offshore Fund has a duration of 30
years and has two members: the Fund, which serves as the managing member, and
the Adviser, which holds only a nominal voting interest in the Offshore Fund.
All day-to-day management responsibilities of the Offshore Fund are controlled
by the Fund. Therefore, all decisions involving the Offshore Fund are
effectively controlled by the Fund's Board.
The Fund may redeem all of its assets from the Offshore Fund and, therefore,
the Master Fund, if the Board determines it is in the best interests of the
Fund to do so. If the Fund so withdraws, the Board would consider what action
might be taken, including investing the assets in the Fund, via the Offshore
Fund, into another pooled investment entity, or retaining the Adviser to
invest the Fund's assets directly in accordance with its investment
objectives.
The structure of the Fund is designed to permit certain sophisticated, high
net worth tax-exempt and tax-deferred investors to participate in the risks
and benefits of an investment in Investment Funds without requiring the high
minimum capital contribution requirements that are required by the Investment
Funds themselves. The Fund also provides such investors with access to the
Master Fund without incurring any UBTI, through the Fund's investment in the
Offshore Fund.
Subject to obtaining any required regulatory approval, the Fund may determine
to invest its assets directly in non-U.S. Investment Funds that are classified
as "passive foreign investment companies" ("PFICs") for U.S. federal income
tax purposes. The Fund may pursue such an investment approach only if it
believes that it could avoid
12
generating UBTI by making such investments and the approach is approved by the
Fund's Board of Directors. The Fund will provide Members with at least 90
days' notice before implementing such a change.
INVESTMENT OBJECTIVES, METHODOLOGY, AND POLICIES
Investment Objectives
The Fund's, the Offshore Fund's, and the Master Fund's investment objective is
to generate long-term capital appreciation through a diversified portfolio
with volatility that is lower than that of the equity markets and returns that
demonstrate little to no correlation with either equity or bond markets. The
Fund will seek to achieve its investment objective by investing substantially
all of its investable assets in the Offshore Fund, which has the same
investment objectives as the Fund. The Offshore Fund in turn will invest all
or substantially all of its investable assets in the Master Fund, which in
turn will invest substantially all of its assets, either directly or
indirectly, in approximately 50 to 100 Investment Funds to be managed pursuant
to various alternative or non-traditional investment strategies, which may be
viewed as encompassing four broadly defined primary categories: Relative
Value, Event Driven, Equity Long/Short, and Global Macro. There can be no
assurance that the Fund will achieve its investment objective or avoid
substantial losses. The Fund's investment objective may be changed by the
Fund's Board without the vote of a majority of the Fund's outstanding voting
securities. Notice will be provided to Members prior to any such change.
Investment Process in General
The Adviser will employ a two-step process in structuring the Master Fund's
portfolio. First, the Adviser will determine an allocation for the Master
Fund's assets across the universe of potential hedge fund strategies, seeking
to achieve a portfolio composition that demonstrates volatility that is lower
than the broad-based equity market, as measured by the Standard & Poor's 500
Composite Stock Price Index (the "S&P 500"), and returns that are not
correlated to either the S&P 500 or the broad-based bond market, as measured
by the J.P. Morgan Global Bond Index, U.S. Traded Segment. The Adviser
currently views the universe of hedge fund strategies as encompassing the
following four primary categories: Relative Value, Event Driven, Long/Short
Equity, and Global Macro. Within these broad primary categories there are a
number of underlying investment management strategies ("Management
Strategies"). See "The Hedge Fund Universe." Using data categorizing and
analyzing the historical returns of select managers within each Management
Strategy, the Adviser will employ a number of quantitative modeling techniques
in conjunction with fundamental research analysis to ascertain an optimized
allocation of Master Fund assets among primary categories and underlying
Management Strategies.
Second, the Adviser will identify and evaluate potential investments based on
specific quantitative, qualitative, and due diligence criteria. Upon
completion of its review, the Adviser will select appropriate Investment
Funds. The Master Fund may invest in Investment Funds either directly or
indirectly by purchasing a structured note or other derivative instrument
linked to such Investment Fund (a "Structured Investment").
To the extent permitted by applicable regulations or as expressly provided in
this Prospectus, neither the name of the Fund, the Offshore Fund, or the
Master Fund, any aspect of the Fund's, the Offshore Fund's, or the Master
Fund's investment program, nor the aforementioned portfolio allocation range
will be a fundamental investment policy of the Fund, and each can be changed
by the Fund's Board without Member approval. In the event of such a change,
Members would receive notice. The Investment Funds in which the Master Fund
will invest may pursue various investment strategies and are subject to
special risks. See "Principal Risk Factors, Types of Investments, and
Investment Strategies of the Investment Funds."
The Master Fund may seek exemptive relief from the SEC to the extent necessary
to permit it to pursue its investment program by investing in Investment Funds
through one or more investment vehicles that are affiliated with the Fund or
the Adviser. There can be no assurance that such relief will be granted.
13
Asset Allocation and Optimization
The Adviser's asset allocation and optimization process utilizes a number of
proprietary quantitative modeling techniques in conjunction with an in-depth
fundamental analysis of the historical returns associated with each of the
Management Strategies. In creating the Master Fund's asset allocation, the
Adviser will analyze the performance results associated with each Management
Strategy to attempt to determine the return, risk, and correlation
relationships within each Management Strategy and in relation to the broader
markets. The Adviser utilizes this analysis to derive specific assumptions
regarding the persistency of the return, risk, and correlation relationships
that exist within the Management Strategies to develop an optimization
algorithm. These assumptions may, and likely will, change over time.
In addition to quantitative data, the Adviser's optimization process allows
for the consideration of a qualitative forecast of developing market trends.
While historical data plays a major role in the asset allocation and
optimization process, the Adviser also considers forward-looking assessments
of future return, risks, and correlations between groups of assets. The
Adviser's forward-looking expectations with respect to return, risk, and
correlation may result in changes in the Master Fund's asset allocation. By
considering developing market trends, the optimization algorithm attempts to
safeguard against the potential over-reliance on historical patterns and
further attempts to produce allocations that may be better suited to perform
in changing market conditions.
The optimized allocations to each Management Strategy are reviewed and tested
by the Adviser with specific Investment Fund data to ensure that the actual
performance characteristics generated by the optimization algorithm remain
consistent with the allocation characteristics originally arrived at using the
Management Strategies data. While it is generally intended for the Master Fund
to allocate assets among all of the Management Strategies, the Master Fund may
not necessarily invest in each of the primary categories or Management
Strategies. There can be no assurance that actual results achieved by the
Master Fund will meet these objectives or otherwise conform to any anticipated
results derived from the optimization algorithm.
Investment Fund Selection Process
The Adviser will identify and select Investment Funds representative of the
Management Strategies in accordance with the Adviser's optimized allocation
proportions. The Adviser's quantitative consideration of potential investments
will undertake a variety of analyses to evaluate prospective Investment Funds.
Quantitative considerations may include an analysis of each Investment Fund's
return, risk (the standard deviation of the Investment Fund's return),
drawdowns (any period during which a prospective Investment Fund's value is
below its previous highest value; that is, any period during which it has
suffered a loss), and correlations (the statistical relationship between a
prospective Investment Fund's return and the return of other Investment Funds
or certain markets) on both an individual basis and relative to its Management
Strategy. In addition, the Adviser will consider certain historical portfolio
information (including performance attribution, which is identifying the
specific factors and positions that contributed to a portfolio's performance)
for each prospective Investment Fund. The Adviser will use the results of each
of its quantitative analyses to identify potential Investment Fund candidates
in each of the Management Strategies.
The potential Investment Funds identified through quantitative analysis will
then be evaluated on the basis of certain qualitative and due diligence
criteria. Qualitative considerations include organizational profile, growth of
assets under management, quality and experience of key investment personnel,
quality of administrative systems, and quality of support staff, as well as a
documentation review and a consideration of various portfolio oversight
mechanisms employed by the Investment Fund.
Generally, an Investment Fund should (i) be generally representative of a
particular Management Strategy, (ii) be open for investment and meet certain
liquidity standards, (iii) have at least one year of performance history, (iv)
have annually audited returns, and (v) have at least $20 million in net
assets. The Adviser may waive or vary any of these guidelines in its
discretion. For example, if the Adviser determines that the manager of a
potential Investment Fund has comparable investment experience of more than
one year with another hedge fund, it may determine to invest the Master Fund's
assets in such Investment Fund regardless of the fact that such Investment
Fund does not have one year of audited performance history. To the extent the
Adviser accesses an Investment Fund through a Structured Investment, it may
vary its liquidity standards.
14
The Master Fund intends generally to limit investments in any one Investment
Fund in its portfolio to no more than 10% of the Master Fund's assets.
Prior to any investment by the Master Fund, the Adviser will generally conduct
an on-site due diligence session with the principals and staff of the
investment manager of each Investment Fund with the objective of obtaining a
better understanding of the thought process being employed by the Investment
Fund's manager and ensuring that the manager's investment process is
consistent with the relevant Management Strategy. Topics discussed during an
on-site due diligence session will generally include the investment background
and philosophy of the investment manager's principals and their rationale
behind historical and current portfolio positions. The Adviser may also review
an Investment Fund's service provider relationships and its audited financial
statements.
Investment Fund Investment Process
The Master Fund typically will invest directly in an Investment Fund by
subscribing to purchase such Investment Fund's ownership interests. There are
certain instances, however, where an Investment Fund may not be open or
available for direct investment by the Master Fund. Such an instance may
arise, for example, where the Master Fund's proposed allocation does not meet
an Investment Fund's investment minimums or when an Investment Fund is closed
to new investments. On occasions where the Adviser determines that a
Structured Investment is the most effective or efficient means of gaining
exposure to an Investment Fund, the Master Fund may purchase such a Structured
Investment, which may involve the purchase by the Master Fund of a structured
note or the entering into by the Master Fund of a swap or other contract
paying a return approximately equal to the total return of an Investment Fund.
In each case, a counterparty would agree to pay the Master Fund a return
determined by the return of the Investment Fund, in return for consideration
paid by the Master Fund equivalent to the cost of purchasing an ownership
interest in the Investment Fund. A structured note with interest or principal
payments indexed to the return of a referenced Investment Fund would
substitute a contractual commitment running from the counterparty to the
Master Fund for direct ownership by the Master Fund of a share of the
Investment Fund. Similarly, a swap structure could provide a return equivalent
to direct investment in an Investment Fund by establishing a contractual
obligation on the part of the counterparty to pay the Master Fund a return
equivalent to the return that would have been obtained by direct investment in
the Master Fund. Indirect investment through an indexed security, a swap, or
similar contract in an Investment Fund carries with it the credit risk
associated with the counterparty.
The Master Fund may be subject to the provisions of the United States banking
laws and regulations and various other laws and regulations applicable to
banks and bank holding companies generally, including the Bank Holding Company
Act of 1956, as amended. Such laws and regulations, among other things, impose
restrictions on the types and amounts of investments that the Master Fund may
make and on the type of activities in which the Master Fund may engage. In
order to comply with such laws and regulations, the Master Fund may be
required to structure its investment in an Investment Fund in a manner that
limits the Master Fund's ownership for such Investment Fund's voting interests
and non-voting equity interests to prescribed levels.
Monitoring Investment Fund Performance
The Adviser will maintain periodic contact with each Investment Fund in which
the Master Fund will invest. The Adviser will regularly monitor the returns of
each Investment Fund in its portfolio in an effort to evaluate whether its
return pattern is consistent with the expected return pattern for that
Management Strategy. The Adviser will also use various proprietary statistical
techniques developed by it in considering whether an Investment Fund's
performance is attributable to underlying market performance or represents the
Investment Fund portfolio manager's added-value. The expected return of each
underlying Investment Fund will be modeled as a function of performance data
and Management Strategy. If any underlying Investment Fund's returns fall
outside the confidence limits established by the Adviser, a formal review of
the Investment Fund will be carried out by the Adviser. As a general matter,
Investment Fund managers with statistical evidence of consistent added-value
will be favored over portfolio managers whose records do not provide such
evidence. In addition, the Adviser, to the extent that it deems necessary,
will examine each Investment Fund's actual holdings (to the extent this
information is available) in order to confirm that the Investment Fund
continues to conform to its particular Management Strategy.
In managing the Master Fund, the Adviser may utilize portfolio construction
models which consider various proposed attributes of the Master Fund,
including the Master Fund's investment objective, investment limitations,
15
and other factors, including a proposed number of Investment Funds in which
the Adviser would propose to invest the Master Fund's assets or the proposed
allocation of the Master Fund's assets among the Management Strategies or in
any one Investment Fund. The Master Fund may not be able to maintain any
certain number of Investment Funds in its portfolio at all times or any
specific allocation of its assets in any single Investment Fund. In
particular, the proceeds from the sale of Interests may not be invested in
Investment Funds immediately upon receipt of the proceeds by the Master Fund.
Pending each month-end closing, the proceeds will be placed in an
interest-bearing escrow account and will not be invested by the Master Fund
until after such closing.
Leverage
In effecting the Master Fund's investment strategies, the Master Fund may, but
does not currently intend to, leverage its investments with Investment Funds.
In addition, the Master Fund may engage in borrowing from a credit line or
other credit facility in order to meet repurchase requests, for bridge
financings of investments in Investment Funds, or for cash management
purposes. The Master Fund may choose to engage in such leveraging of its
investment because it believes it can generate greater returns on such
borrowed funds than the cost of borrowing. However, there is no assurance that
returns from borrowed funds will exceed interest expense. Borrowings will be
subject to a 300% asset coverage requirement under the 1940 Act. Borrowings by
Investment Funds are not subject to this requirement. Short-term borrowings
for the purpose of meeting repurchase requests, for bridge financing of
investments in Investment Funds, or for cash management purposes will not be
considered the use of investment leverage, and will be subject to the above
asset coverage requirement. Many Investment Fund managers also use leverage in
their investment activities through purchasing securities on margin and
through selling securities short. Investment Fund managers may also use
leverage by entering into total return swaps or other derivative contracts as
well as repurchase agreements whereby the Investment Fund Manager effectively
borrows funds on a secured basis by "selling" portfolio securities to a
financial institution for cash and agreeing to "repurchase" such securities at
a specified future date for the sales price paid plus interest at a negotiated
rate. Certain Investment Fund managers also trade futures, which generally
involve greater leverage than other investment activities due to the low
margin requirements associated with futures trading.
Cash Reserves
The Adviser is not required to allocate all the Master Fund's assets to
Investment Funds and may maintain such cash reserves as it may from time to
time deem to be appropriate for defensive purposes, to fund future
allocations, or to pay operating costs. The Adviser may invest and manage such
cash reserves in Treasury securities, money market funds, bank deposits, and
similar short-term instruments or accounts. If the Adviser allocates some of
the Master Fund's assets to a money market fund or similar investment, the
Master Fund will bear the standard management fees and costs and expenses of
such money market fund in addition to the fees and expenses payable at the
Master Fund level.
16
THE HEDGE FUND UNIVERSE
The following is an overview of the strategies that may used by the Investment
Funds in which the Master Fund may invest. The Adviser currently views the
universe of hedge funds as generally encompassing the following primary
categories: Relative Value, Event Driven, Long/Short Equity, and Global Macro.
Within each of these broad primary categories are a number of underlying
Management Strategies.
----------
|Hedge Fund|
| Universe |
----------
|
|
|
|
|
-------------------------------------------------------------------------------
| | | |
| | | |
| | | |
| | | |
| | | |
-------------- ------------ ----------- ------------
|Relative Value| |Event Driven| | Equity | |Global Macro|
| Category | | Category | | Long/Short| | Category |
| | | | | Category | | |
-------------- ------------ ----------- ------------
| \ / | | |
| \ / | | |
| \ / | | |
| \ / | | |
| \ / | | |
| \ / | | |
| \ / | | |
| \ / | | |
----------- ---------- ------------ ------------- -------------
|Convertible| | Multi- | | Merger/Risk| |Opportunistic| |Discretionary|
| Arbitage | |Strategies| | Arbitage | | | | |
----------- ---------- ------------ ------------- -------------
| | | |
| | | |
| | | |
| | | |
----------- ------------ ------------- -------------
| Fixed | | Bankruptcy/| | Global | | Systematic |
| Income | | Distressed | |International| | |
| Arbitage | | | | | | |
----------- ------------ ------------- -------------
| |
| |
| |
| |
-------------- -------------
| Quantitative | | Sector |
|Market Neutral| | Specific |
| Equity | | |
-------------- -------------
|
|
|
|
-------------
| Short |
| Biased |
-------------
Relative Value Category
Relative Value strategies generally seek to produce returns without taking on
specific market exposures. Managers employing Relative Value strategies seek
to achieve attractive risk-adjusted returns through the use of both long and
short positions in fixed income and/or equity instruments, attempting to
exploit pricing inefficiencies that occur in the markets from time to time.
Relative Value strategies may or may not utilize leverage. The Relative Value
category is composed of three Management Strategies: Convertible Arbitrage,
Fixed Income Arbitrage, and Quantitative Market Neutral Equity.
Convertible Arbitrage Strategies. Managers utilizing Convertible Arbitrage
strategies analyze convertible bonds and warrants across the globe to take
advantage of opportunities presented by market and information inefficiencies.
Convertible Arbitrage managers seek to monetize such opportunities through the
use of both fundamental analysis of the issuing companies and quantitative
option and security valuation techniques. Convertible Arbitrage managers
generally engage in short selling, options hedging, and other arbitrage
techniques to capture price differentials found in the convertible securities
and warrants in which they invest. As a general matter, these managers are
long the convertible bond and short a percentage (known as the delta amount)
of the underlying stock. While most Convertible Arbitrage managers attempt to
capture a perceived mispricing of the option component of a convertible
17
security, Convertible Arbitrage managers may also look for mispricing of the
underlying credit of the issuing company. Convertible Arbitrage managers may
periodically utilize a significant amount of leverage.
Fixed Income Arbitrage Strategies. Managers utilizing Fixed Income Arbitrage
strategies analyze a variety of fixed income securities across several
markets. Fixed Income Arbitrage managers may look to capture changes in the
shape of a country's yield curve (the spread or difference in yield between
different maturities of an issuer; e.g., two-year U.S. Treasury Notes versus
ten-year U.S. Treasury Notes) or the relationship spread between the fixed
income securities of two different countries (e.g., yield curves on five-year
German Bunds versus five-year U.S. Treasury Notes). Trading strategies also
may be structured to capture expected changes in credit spreads, such as the
difference between the yield on a specific company's debt and the yield on
U.S. Treasury securities (e.g., sell a company's bond and buy a Treasury
security), or credit spreads within a specific company's capital structure
(e.g., buy a company's senior debt and sell short its subordinated debt or
equity). Fixed Income Arbitrage managers may also focus on mortgage and
mortgage-related securities. Fixed Income Arbitrage managers tend to utilize
significant amounts of leverage and take both long and short positions and
employ options, futures, and other derivative strategies.
Quantitative Market Neutral Equity Strategies. Managers utilizing Quantitative
Market Neutral Equity strategies seek to generate capital appreciation and
absolute returns through a portfolio of investments that is generally
anticipated to be net flat or "market neutral." Quantitative Market Neutral
Equity strategies seek to exploit price discrepancies that a Quantitative
Market Neutral Equity manager believes exist between individual securities or
sectors. These managers primarily establish both long and short positions and
tend to utilize leverage. Under most circumstances, Quantitative Market
Neutral Equity managers will attempt to maintain a net zero exposure (i.e.,
gross long positions less gross short positions equal zero); however, gross
long and short positions may be significantly large. In most cases,
Quantitative Market Neutral Equity managers have high portfolio turnover. The
Quantitative Market Neutral Equity strategy relies heavily on models that
primarily seek to identify and take advantage of the relative price movements
between specific securities. Some Quantitative Market Neutral Equity managers
incorporate subjective investment decisions that are based on fundamental
analysis when selecting pairs of securities to be held long and short. These
opportunities may result from changes in the valuations of specific companies
or sectors. For example, if two stocks with similar fundamentals in a given
industry have diverged from their historical price relationship, the manager
may acquire long positions in the underpriced stock and short the overpriced
stock with the intention of unwinding the positions when the historical price
relationship returns.
Event Driven Category
Event Driven strategies generally seek to produce returns based on anticipated
outcomes of company specific or transaction specific situations. Event Driven
managers attempt to capture an underlying change in value based on a
particular event such as a corporate merger, corporate restructuring, or
pending bankruptcy. Event Driven managers typically invest either long or
short (or both), and tend to have a directional bias. The Event Driven
category is composed of two Management Strategies: Merger/Risk Arbitrage and
Bankruptcy/Distressed Debt. In addition, certain managers may utilize a
multi-strategy approach, which often combines Merger/Risk Arbitrage,
Bankruptcy/Distressed, event driven, Long/Short Equity, and capital structure
arbitrage strategies.
Merger/Risk Arbitrage Strategies. Managers utilizing Merger/Risk Arbitrage
strategies seek to profit by realizing price differentials that they perceive
exist between the current market price of a security and its expected future
value based upon the occurrence of a specific event. Merger/Risk Arbitrage
transactions typically involve the purchases or sales of securities in
connection with announced corporate actions which may include, but are not
limited to, mergers, consolidations, acquisitions, transfers of assets, tender
offers, exchange offers, re-capitalizations, liquidations, divestitures,
spin-offs, and similar transactions. The portfolios are generally actively
traded and may exhibit a high rate of turnover. Merger/Risk Arbitrage managers
may periodically utilize leverage and may enter into swaps and other similar
financial contracts in an effort to increase portfolio returns. Merger/Risk
Arbitrage managers generally engage in short selling, options hedging, and
other arbitrage techniques to capture price differentials. Merger/Risk
Arbitrage managers may from time to time take positions in the securities of
companies not currently involved in announced transactions, but that are
believed to be undervalued and likely candidates for future corporate actions.
18
Bankruptcy/Distressed Strategies. Managers utilizing Bankruptcy/Distressed
strategies generally invest in the securities of financially troubled
companies (companies involved in bankruptcies, exchange offers, workouts,
financial reorganizations, and other special credit event related situations).
These investment strategies may seek to identify distressed securities in
general or focus on one particular segment of the market (such as the senior
secured debt sector or the equity portion of distressed companies).
Investments may be acquired passively in the secondary market, acquired
through participation in merger and acquisition activity, or acquired with a
view toward actively participating in a re-capitalization or restructuring
plan. Bankruptcy/Distressed managers may actively attempt to modify or improve
a restructuring plan with the intent of improving the value of such securities
upon consummation of a restructuring. Additionally, they may take an active
role and seek representation in management on a board of directors or a
creditors' committee. In order to achieve these objectives the manager may
purchase, sell, exchange, or otherwise deal in and with restricted or
marketable securities including, without limitation, any type of debt
security, preferred or common stock, warrants, options, and hybrid
instruments. A significant portion of a Bankruptcy/Distressed manager's
portfolio may be invested in restricted securities that may not be registered
and for which a market may not be readily available, and therefore a
significant portion of the portfolio may not be freely traded. Investments may
involve both U.S. and non-U.S. entities and may utilize leverage. Information
about specific investments may be limited, thereby reducing the manager's
ability to monitor the performance and to evaluate the advisability of
continued investments in specific situations.
Multi-Strategy. Managers utilizing a Multi-Strategy approach generally engage
in a broad range of arbitrage strategies across three primary markets: (i)
long and short positions in equity markets; (ii) U.S. and international
positions in investment grade and non-investment grade fixed income
securities; and (iii) special situations arising from anomalies in the global
securities markets. These managers may also seek to take advantage of any
number of different event-driven opportunities. Events may involve corporate
actions, credit events, political events, or other situations that may have an
effect on the value of the securities or financial instruments traded by the
Multi-Strategy manager. Multi-Strategy managers generally seek to profit by
realizing the price differentials that they perceive exist between equivalent
or nearly equivalent securities or between the current market price of a
security and its expected future value based on the occurrence of a specific
event. Investments may involve both U.S. and non-U.S. markets and may utilize
significant amounts of leverage. Multi-Strategy managers employ both long and
short strategies, warrant and option arbitrage and hedging strategies, inter-
and intra-market spread trading, futures, options, and currency trading.
Long/Short Equity Category
Long/Short Equity strategies generally seek to produce returns from
investments in the global equity markets. These strategies are generally
focused on absolute returns and the trades implemented in the strategy
generally capitalize on the investment manager's views and outlooks for
specific equity markets, regions, sectors, and securities. While these
strategies involve both long and short positions in various equity securities,
the strategies will generally represent a specific directional view. However,
unlike traditional equity funds, the directional view relates less to the
absolute direction of the market and more toward the specific positions (longs
versus shorts) held within a portfolio. In addition to making shifts in
markets, regions, sectors, and securities, managers have the flexibility to
shift from a net long to a net short position, but in general will maintain
net long exposure. An exception is for those managers that are classified as
Short-Biased, which will in general maintain a net short exposure. The
Long/Short Equity category is composed of four Management Strategies:
Opportunistic, Global-International, Sector Specific, and Short-Biased.
Opportunistic Strategies. Managers utilizing Opportunistic strategies seek to
generate capital appreciation through a portfolio of investments representing
a variety of U.S. equity strategies. These managers primarily establish both
long and short positions in U.S. equity securities and may utilize leverage.
Under most circumstances, such managers will maintain net long market
exposures. The degree to which different managers maintain net long positions
will vary. The more opportunistic managers within the strategy generally
maintain net long positions of 20% to 80%; however, they may be net short from
time to time. The more long-biased managers within the strategy generally
maintain net long positions of 50% to 150%. In both cases, gross positions may
be significantly larger. Managers within this strategy seek to profit by
establishing both long and short positions in specific equity situations with
an objective of outperforming the U.S. equity markets on a risk-adjusted and
absolute basis. These managers utilize the cash and derivatives markets, and
may utilize leverage when establishing positions. Their investments
19
may be highly concentrated and may lack liquidity. In most cases,
Opportunistic managers will tend to trade positions within their portfolio
actively, which will result in high levels of portfolio turnover.
Global-International Strategies. Managers utilizing Global-International
strategies seek to generate capital appreciation through a portfolio of
investments representing a variety of globally-oriented strategies. These
strategies may include positions in the cash, futures, and forward markets.
These managers employ such approaches as long/short strategies, warrant and
option arbitrage, hedging strategies, inter- and intra-market equity spread
trading, futures, options, and currency trading, and emerging markets and
other special situation investing. Trading positions are generally held both
long and/or short in both U.S. and non-U.S. markets. Global-International
managers may assume aggressive investment postures with respect to position
concentrations, use of leverage, and various instruments used, and typically
have high levels of portfolio turnover.
Sector Specific Strategies. Managers utilizing Sector Specific strategies seek
to generate capital appreciation through a portfolio of investments
representing a specific market sector or sectors. For example, a manager may
focus on technology or bio-tech companies. Managers may define their specific
strategy more broadly, for example, healthcare and life sciences or "TMT"
(technology, media, and telecommunications). These managers may establish both
long and short positions in equity securities and may utilize leverage.
Investments may be in both U.S. and non-U.S. companies. Although these
managers will tend to maintain net long market exposures, the degree to which
different managers maintain net long positions will vary, and managers may
also be net short from time to time. These managers utilize the cash and
derivatives markets, and may utilize leverage when establishing positions.
Their investments may be highly concentrated and may lack liquidity. In most
cases, Sector Specific managers will tend to trade positions within their
portfolio actively, which will result in high levels of portfolio turnover.
Short-Biased Strategies. Managers utilizing Short-Biased strategies seek to
produce absolute returns from portfolios that are generally net short;
however, these managers may hold long positions as well. Positions may or may
not involve the use of leverage, and managers tend to have a high level of
portfolio turnover and may maintain concentrated positions. Short-Biased
managers attempt to capitalize from price declines in specific equity
securities. Short-Biased managers primarily focus on identifying overvalued
securities that have either deteriorating fundamentals or a catalyst that will
result in a negative price movement for the stock. These managers seek
positive returns regardless of market direction. Short-Biased managers tend to
achieve better results in bearish markets.
Global Macro Category
Global Macro strategies generally focus on macro-economic opportunities across
numerous markets and instruments. Investments may be either long or short in
cash securities, futures contracts, derivative contracts, or options, and may
be in equities, fixed income markets, currencies, or commodities (e.g.,
agricultural, metals, energy). This category is composed of two major
Management Strategies: Discretionary Strategies and Systematic Strategies.
Discretionary Strategies. Managers utilizing Discretionary Global Macro
strategies seek to profit by capturing market moves throughout a broad
universe of investment opportunities. These opportunities include financial
markets, such as global equity, currency, and fixed income markets, as well as
non-financial markets, such as the energy, agricultural, and metals sectors.
These managers utilize a combination of fundamental market research and
information in conjunction with quantitative modeling to identify
opportunities that exist within the markets. While the markets they invest in
may be diverse, these managers may hold more concentrated positions in a
limited number of markets at any one time. Positions may be long and short in
different markets, and the managers tend to employ leverage.
Systematic Strategies. Managers utilizing Systematic Global Macro strategies
utilize proprietary models to identify opportunities that exist within a
diverse group of financial and non-financial markets and establish positions
based on the models. While subjective investment decisions occasionally can be
made, such decisions tend to be the result of a heavier reliance upon models
than is the case with discretionary strategies. Managers employing Systematic
Strategies tend to hold positions in several markets at the same time, may be
both long and short, and tend to use margin when establishing positions.
20
PRINCIPAL RISK FACTORS RELATING TO THE FUND'S STRUCTURE
The following are the principal risk factors that relate to the operations and
structure of the Fund. The investments of the Investment Funds in which the
Fund will invest are also subject to special risks.
Lack of Operating History
Each of the Fund, the Offshore Fund, and the Master Fund is a newly formed
entity and has no operating history upon which investors can evaluate the past
performance of the Fund. There can be no assurance that the Fund will meet its
investment objective.
Closed-end Fund; Limited Liquidity; Interests Not Listed; Repurchases of
Interests
The Fund is a closed-end, non-diversified management investment company
designed primarily for long-term investors, and is not intended to be a
trading vehicle. Investors should not invest in this Fund if they need a
liquid investment. Closed-end funds differ from open-end management investment
companies (commonly known as mutual funds) in that investors in a closed-end
fund do not have the right to redeem their shares on a daily basis at a price
based on net asset value. In order to be able to meet daily redemption
requests, mutual funds are subject to more stringent liquidity requirements
than closed-end funds. In particular, a mutual fund generally may not invest
more than 15% of its net assets in illiquid securities. The Adviser believes
that unique investment opportunities exist in the market for Investment Funds.
However, these investments are illiquid, and an open-end fund's ability to
make such investments is limited. For this reason, among others, the Fund has
been organized as a closed-end fund.
The Fund does not intend to list its Interests for trading on any national
securities exchange. There is no secondary trading market for the Interests,
and none is expected to develop. The Interests are, therefore, not readily
marketable. Because the Fund is a closed-end investment company, its Interests
will not be redeemable at the option of Members and they will not be
exchangeable for interests of any other fund. Although the Board, in its
complete and absolute discretion, may cause the Fund to offer to make
repurchase offers for outstanding Interests at their net asset value, the
Interests are considerably less liquid than shares of funds that trade on a
stock exchange, or shares of open-end investment companies. The amount that
the Fund will offer to repurchase during any repurchase offer is determined by
the Board in its complete and absolute discretion, and such repurchase amount
may be a portion of the Fund's outstanding Interests. In addition, in extreme
cases, the Fund may not be able to complete repurchases if the Master Fund is
unable to repurchase a portion of the Fund's interest in the Master Fund, held
through the Offshore Fund, due to the Master Fund's holding of illiquid
investments. Members whose Interests are accepted for repurchase will bear the
risk that the Fund's net asset value may fluctuate significantly between the
time that they submit their repurchase requests and the effective date of the
repurchase (i.e., the Repurchase Valuation Date). Further, repurchases of
Interests, if any, may be suspended or postponed in the complete and absolute
discretion of the Board. An investment in the Fund is suitable only for
investors who can bear the risks associated with the limited liquidity of the
Interests and the underlying investments of the Fund. See "Investor
Suitability" and "Repurchases of Interests." Also, because the Interests will
not be listed on any securities exchange, the Fund is not required, and does
not intend, to hold annual meetings of its Members.
Non-Diversified Status
The Fund and the Master Fund are "non-diversified" investment companies. Thus,
there will be no limitations imposed by the 1940 Act on the percentage of the
Fund's or the Master Fund's assets that may be invested in the securities of
any one issuer. This may result in the Fund's investment portfolio being more
susceptible to a single economic, political, or regulatory occurrence than
would be the case if the Fund or the Master Fund were operated as a
diversified investment company. The Master Fund generally will not invest more
than 10% of its assets (measured at the time of purchase) in the securities of
a single Investment Fund.
Special Risks of Fund of Funds Structure, Including Investing in Unregistered
Funds
Investment Funds Not Registered. The Investment Funds will not be registered
as investment companies under the 1940 Act and, therefore, the Master Fund
will not be entitled to the protections of the 1940 Act with respect to the
21
Investment Funds. For example, the Investment Funds are not required to, and
may not, hold custody of their assets in accordance with the requirements of
the 1940 Act. As a result, bankruptcy or fraud at institutions, such as
brokerage firms, banks, or administrators, into whose custody those Investment
Funds have placed their assets could impair the operational capabilities or
the capital position of the Investment Funds and may, in turn, have an adverse
impact on the Fund. In addition, the investment advisers to, or general
partners of, the Investment Funds often will not be registered as investment
advisers under the Advisers Act.
Investment Fund Securities Generally Illiquid. The securities of the
Investment Funds in which the Master Fund will invest are generally
anticipated to be illiquid. Subscriptions to purchase the securities of
Investment Funds are generally subject to restrictions or delays. Similarly,
the Master Fund may not be able to dispose of Investment Fund securities that
it has purchased in a timely manner and, if adverse market conditions were to
develop during any period in which the Master Fund is unable to sell
Investment Fund securities, the Master Fund might obtain a less favorable
price than prevailed when it decided to buy or sell. Further, the Fund may
need to suspend or postpone repurchase offers if the Master Fund is not able
to dispose of Investment Fund securities in a timely manner. In addition,
Investment Funds may impose certain restrictions on withdrawals, such as
lock-ups, gates, or suspensions of withdrawal rights under certain
circumstances.
Investment Fund Operations Not Transparent. The Adviser will not be able to
control or monitor the activities of the Investment Funds on a continuous
basis. An Investment Fund may use investment strategies that differ from its
past practices and are not fully disclosed to the Adviser and that involve
risks that are not anticipated by the Adviser. Investment Funds may have
limited operating history and investment advisers of Investment Funds may have
limited experience in managing assets.
Valuation of the Fund's Investments. As the Adviser and the Board anticipate
that market prices will not be readily available for all or most Investment
Funds in which the Master Fund will invest, the Master Fund's valuation
procedures provide that the fair value of the Master Fund's investments in
Investment Funds ordinarily will be the value determined for each Investment
Fund in accordance with the Investment Fund's valuation policies and provided
to the Master Fund. See "Net Asset Valuation." Although the Adviser will
review the valuation procedures used by the investment advisers of the
Investment Funds, the Adviser, and the Board will have little or no means of
independently verifying valuations provided by such investment advisers. In
calculating its net asset value, although the Master Fund will review other
relevant factors, the Master Fund will rely significantly on values of
Investment Funds that are reported by the Investment Funds themselves. The
Master Fund will not have information about the securities in which the
Investment Funds invest or their valuation. An Investment Fund's investment
adviser may face a conflict of interest in valuing the Investment Fund's
portfolio securities because their values will affect the compensation of the
Investment Fund's investment adviser. The Fund will rely on the net asset
value reported by the Master Fund in determining its own net asset value. For
more information on the valuation of the Fund's investments, including the
valuation of the Master Fund's investments in Investment Funds, and related
risks, see "Net Asset Valuation."
Multiple Levels of Fees and Expenses. Although in many cases investor access
to the Investment Funds may be limited or unavailable, an investor who meets
the conditions imposed by an Investment Fund may be able to invest directly
with the Investment Fund. By investing in Investment Funds indirectly through
the Fund as an investor in the Master Fund, the investor bears asset-based
management fees at the Master Fund level, in addition to any asset-based
management and performance-based fees and allocations at the Investment Fund
level and the Incentive Allocation at the Fund level. Moreover, an investor in
the Fund bears a proportionate share of the fees and expenses of the Fund and
the Master Fund (including operating costs, distribution expenses, brokerage
transaction expenses, and administrative fees) and, indirectly, similar
expenses of the Investment Funds. Thus, an investor in the Fund may be subject
to higher operating expenses than if he or she invested in another closed-end
fund with a different investment focus. The Offshore Fund's expenses are
expected to be minimal and will be borne by the Adviser or an affiliate of the
Adviser.
Each Investment Fund generally will be eligible to receive a performance-based
fee or allocation, irrespective of the performance of other Investment Funds
and the Master Fund generally. Accordingly, an investment adviser to an
Investment Fund with positive performance may receive performance-based
compensation from the Investment Fund, and thus indirectly from the Fund and
its Members, even if the Fund's overall performance is negative. Generally,
fees payable to investment advisers of the Investment Funds will range from 1%
to 3% (annualized) of
22
the average net asset value of the Master Fund's investment, and incentive
allocations or fees will generally range from 15% to 25% of an Investment
Fund's net profits. The performance-based compensation received by an
investment adviser of an Investment Fund also may create an incentive for that
investment adviser to make investments that are riskier or more speculative
than those that it might have made in the absence of the performance-based fee
or allocation. That compensation may be based on calculations of realized and
unrealized gains made by the investment adviser without independent oversight.
Second-Tier Fund Investments. One of the principal disadvantages and risks
inherent in a fund of funds structure is the restrictions imposed on the asset
allocation flexibility and risk control capability of the manager of the
top-tier fund as a result of the limited liquidity of the second-tier funds in
which the former invests. The Master Fund could be unable to withdraw its
capital from Investment Funds in which it invests for some months after the
Adviser has determined that the Investment Fund operating such entity has
begun to deviate from its announced trading policies and strategy. Certain
entities in which the Master Fund invests may suspend redemptions, especially
during periods of market disruption, preventing the Master Fund from
withdrawing.
Investment in Offshore Fund. The Offshore Fund is not registered under the
1940 Act, and is not subject to the investor protections offered thereby. The
Fund, as an investor in the Offshore Fund, will not have the protections
offered to investors in registered investment companies. However, the Fund
will control the Offshore Fund, making it unlikely that the Offshore Fund will
take any action adverse to the interests of the Fund.
Changes in United States and/or Cayman Islands Law. If there are changes in
the laws of the United States and/or the Cayman Islands, under which the Fund
and the Offshore Fund, respectively, are organized, so as to result in the
inability of the Fund and/or the Offshore Fund to operate as set forth in this
Prospectus, there may be a substantial effect on investors. For example, if
Cayman Islands law changes such that the Offshore Fund must conduct business
operations within the Cayman Islands, or pay taxes, investors in the Fund
would likely suffer decreased investment returns. If Cayman Islands law, which
requires a limit for a limited duration company's existence of 30 years, were
to change such that, at the end of 30 years, the Fund could not replace the
Offshore Fund with another identical limited duration company, the structure
of the Fund would be affected, potentially adversely. Such changes could also
result in the inability of the Fund to operate on a going-forward basis,
resulting in the Fund being liquidated.
Regulatory Change. The Fund relies on a position taken by the staff of the SEC
with respect to a non-affiliated investment company allowing a structure
whereby the Fund will invest in the Master Fund via the Offshore Fund. To the
extent that the views of the SEC staff, which do not represent the views of
the SEC itself, were to change, the structure of the Fund's investment in the
Master Fund could be adversely affected, possibly affecting the treatment of
UBTI.
Subject to obtaining any required regulatory approval, the Fund may determine
to invest its assets directly in non-U.S. Investment Funds that are classified
as PFICs for U.S. federal income tax purposes. The Fund may pursue such an
investment approach only if it believes that it could avoid generating UBTI by
making such investments and the approach is approved by the Fund's Board of
Directors. The Fund will provide Members with at least 90 days' notice before
implementing such a change.
Investment Fund Manager Compensation. An Investment Fund typically provides
for a performance fee or allocation to its general partner, manager, or person
serving in an equivalent capacity over and above a basic asset-based advisory
fee. Performance-based fees or allocations could create an incentive for a
manager of an Investment Fund to choose riskier or more speculative underlying
investments than would otherwise be the case.
Availability of Information. Some of the Investment Funds may provide very
limited information with respect to their operation and performance to the
Master Fund, thereby severely limiting the Adviser's ability to verify
initially or on a continuing basis any representations made by the Investment
Funds or the investment strategies being employed. This may result in
significant losses to the Fund based on investment strategies and positions
employed by the Investment Funds or other actions of which the Adviser has
limited or no knowledge.
Possibility of Fraud and Other Misconduct. When the Master Fund allocates
assets to an Investment Fund, the Master Fund does not have custody of the
assets or control over their investment by the Investment Fund. An
23
Investment Fund could divert or abscond with the assets, fail to follow
agreed-upon investment strategies, provide false reports of operations, or
engage in other misconduct.
Estimates. The net asset values received by the Master Fund from Investment
Funds and used to calculate the Master Fund's net asset value (upon which the
Fund's Net Asset Value will be based), and therefore for the payment of
repurchase proceeds and the issuance of additional Interests, are only
estimates and may differ materially from actual valuations. The Fund relies on
these estimates in calculating the Fund's Net Asset Value for reporting,
subscriptions, repurchases, fees, and other purposes and generally will not
make any adjustments with respect to withdrawal payments or the issuance of
Interests.
Duplicative Transaction Costs. Investment decisions of the Investment Funds
are made by their investment advisers independently of each other. As a
result, at any particular time, one Investment Fund may be purchasing
securities of an issuer whose securities are being sold by another Investment
Fund. Consequently, the Fund could incur indirectly transaction costs without
accomplishing any net investment result.
Turnover. The Master Fund's activities will involve investment in the
Investment Funds, which may invest on the basis of short-term market
considerations. The turnover rate within the Investment Funds may be
significant, potentially involving substantial brokerage commissions and fees.
The Master Fund will have no control over this turnover. As a result of this
turnover, it is anticipated that the Fund's income and gains, if any, will be
primarily derived from ordinary income and short-term capital gains. In
addition, the withdrawal of the Master Fund from an Investment Fund could
involve expenses to the Master Fund under the terms of the Master Fund's
investment.
Changes in Investment Funds and Allocations. The Adviser may from time to time
select new or replacement Investment Funds and change the percentage of Master
Fund assets allocated to each Investment Fund. These changes will be made in
the Adviser's sole discretion, subject to the Investment Funds' liquidity
constraints. The Master Fund's (and, therefore, the Fund's) success will
depend to a great extent on the Adviser's ability to identify and allocate
assets successfully among Investment Funds.
Inability to Vote or Exercise Control. The Master Fund may elect to hold
non-voting securities in Investment Funds or waive the right to vote in
respect of an Investment Fund. In such cases, the Master Fund will not be able
to vote on matters that require the approval of the interestholders of the
Investment Fund, including matters adverse to the Master Fund's interests. The
Master Fund does not intend to acquire a sufficient percentage of the economic
interests in any Investment Fund to cause the Master Fund to control the
Investment Fund. Applicable securities and banking rules and interpretations
may limit the percentage of voting or non-voting securities of any Investment
Fund that may be held by the Master Fund.
Inability to Invest in Investment Funds. In the event that the Master Fund is
able to make investments in Investment Funds only at certain times, the Master
Fund may invest any portion of its assets that is not invested in Investment
Funds in money market securities, or other liquid assets pending investment in
Investment Funds. During this time that the Master Fund's assets are not
invested in Investment Funds, that portion of the Master Fund's assets will
not be used to pursue the Master Fund's investment objective.
Indemnification of Investment Advisers. The Investment Funds may agree to
indemnify certain of their investment advisers from any liability, damage,
cost, or expense arising out of, among other things, certain acts or
omissions. The investment advisers of the Investment Funds often have broad
limitations on liability and indemnification rights.
Indirect Investment in Investment Funds. Any transaction by which the Master
Fund indirectly gains exposure to an Investment Fund by the purchase of a
structured note, swap, or other contract is subject to special risks. The
Master Fund's use of such instruments can result in volatility, and each type
of instrument is subject to special risks. See "Principal Risk Factors, Types
of Investments, and Investment Strategies of the Investment Funds -- Special
Investment Instruments and Techniques, Including Derivative Instruments."
Indirect investments will generally be subject to transaction and other fees,
which will reduce the value of the Master Fund's investment. There can be no
assurance that the Master Fund's indirect investment in an Investment Fund
will have the same or similar results as a direct investment in the Investment
Fund, and the Master Fund's value may decrease as a result of such indirect
24
investment. Also, the Master Fund's indirect investment in an Investment Fund
carries with it the credit risk associated with the counterparty.
Investments in Foreign Markets. It is anticipated that certain of the
Investment Funds will be organized outside of the United States. In addition,
investments by the Investment Funds in foreign financial markets, including
markets in developing countries, present political, regulatory, and economic
risks that are significant and that may differ in kind and degree from risks
presented by investments in the United States. For example, it may be more
difficult for the Master Fund or an Investment Fund to enforce its rights
offshore and the regulations applicable to those jurisdictions may be less
stringent.
Litigation and Enforcement Risk. An Investment Fund's investment adviser might
accumulate substantial positions in the securities of a specific company and
engage in a proxy fight, become involved in litigation, or attempt to gain
control of a company. Under such circumstances, an Investment Fund's
investment adviser conceivably could be named as a defendant in a lawsuit or
regulatory action. There have been a number of widely reported instances of
violations of securities laws through the misuse of confidential information,
diverting or absconding with hedge fund assets, falsely reporting hedge fund
values and performance, and other violations of the securities laws. Such
violations may result in substantial liabilities for damages caused to others,
for the disgorgement of profits realized, and for penalties. Investigations
and enforcement proceedings are ongoing and it is possible that hedge funds
may be charged with involvement in such violations. If that were the case, the
performance records of the hedge funds would be misleading. Furthermore, if an
Investment Fund has engaged in such violations, the Master Fund could be
exposed to losses.
PRINCIPAL RISK FACTORS, TYPES OF INVESTMENTS, AND
INVESTMENT STRATEGIES OF THE INVESTMENT FUNDS
General
This section discusses the types of investments generally made by the
Investment Funds in which the Master Fund will invest and the related risk
factors with respect to such investments. It is possible that an Investment
Fund will make an investment that is not described below, which would be
subject to its own particular risks. Unless expressly stated otherwise herein,
an investor's determination to invest in the Fund should not be based on a
belief that the Investment Funds will not make a certain type of investment.
The impact of a particular risk in an Investment Fund will, in turn, have a
corresponding impact on the Fund via its indirect investment in the Master
Fund.
The Fund's investment program entails substantial risks. Investors should
expect the value of the Fund's net assets to fluctuate. Due to the types of
investments and investment strategies to be used by the Investment Funds,
fluctuations in the net asset value of the Fund may be more volatile than is
typical for traditional mutual funds. There can be no assurance that the
Fund's or the Investment Funds' investment objectives will be achieved or that
their investment programs will be successful. In particular, each Investment
Fund's use of leverage, short sales, and derivative transactions, and limited
diversification can, in certain circumstances, cause the value of an
Investment Fund's portfolio to appreciate or depreciate at a greater rate than
if such techniques were not used, which, in turn, could result in significant
losses to the Fund.
All securities investments are subject to the risk of loss of capital. The
value of the Fund's net assets will fluctuate based on the fluctuation in the
value of the Investment Funds in which the Master Fund will invest. To the
extent that the portfolio of an Investment Fund is concentrated in securities
of a single issuer or issuers in a single industry or market sector, the risk
of the Fund's indirect investment in that Investment Fund is increased.
The investment environment in which the Investment Funds invest may be
influenced by, among other things, interest rates, inflation, politics, fiscal
policy, current events, competition, productivity, and technological and
regulatory change. Investors should consider the Fund as a supplement to an
overall investment program and should invest only if they are willing to
undertake the risks involved. Investors may experience a significant decline
in the value of their investments and could lose money. Prospective investors
should consider the Fund a speculative investment, and should invest in the
Fund only if they can sustain a complete loss of their investment.
25
Equity Securities
Investment Funds' portfolios may include long and short positions in common
stocks, preferred stocks, and convertible securities of U.S. and foreign
issuers. Investment Funds also may invest directly in foreign securities or in
depositary receipts relating to foreign securities. See "Foreign Securities."
Equity securities fluctuate in value, often based on factors unrelated to the
value of the issuer of the securities.
Investment Funds may invest in equity securities without restriction as to the
market capitalization of issuers, including securities of companies with
market capitalizations that are small compared to other publicly traded
companies (including micro-cap companies). Smaller companies may have limited
product lines, markets, or financial resources or may depend on a small
inexperienced management group. Securities of small companies may trade less
frequently and in lesser volume than more widely held securities and their
values may fluctuate more abruptly or erratically than securities of larger
companies. They may also trade in the over-the-counter market or on a regional
exchange, or may otherwise have limited liquidity. These securities may
therefore be more vulnerable to adverse market developments than securities of
larger companies. Also, there may be less publicly available information about
smaller companies or less market interest in their securities as compared to
larger companies, and it may take longer for the prices of the securities to
reflect the full value of a company's earnings potential or assets.
Fixed Income Securities
Investment Funds may invest in fixed income securities. Investment in these
securities may offer opportunities for income and capital appreciation, and
may also be used for temporary defensive purposes and to maintain liquidity.
Fixed income securities are subject to the risk of the issuer's inability to
meet principal and interest payments on its obligations (i.e., credit risk)
and are subject to price volatility due to such factors as interest rate
sensitivity, market perception of the creditworthiness of the issuer, and
general market liquidity (i.e., market risk).
Foreign Securities
Investment Funds may invest in securities of foreign issuers and in depositary
receipts, such as American Depositary Receipts ("ADRs"), that represent
indirect interests in securities of foreign issuers. Investing in foreign
securities involves special risks and considerations not typically associated
with investing in U.S. securities. Foreign securities in which the Investment
Funds may invest may be listed on foreign securities exchanges or traded in
foreign over-the-counter markets. Foreign securities markets generally are not
as developed or efficient or as strictly regulated as securities markets in
the United States. Securities of some foreign issuers are less liquid and more
volatile than securities of comparable U.S. issuers. Similarly, volume and
liquidity in most foreign securities markets are lower than in the United
States and, at times, volatility of prices can be greater than in the United
States. Investment Funds will be subject to risks of possible adverse
political and economic developments, seizure or nationalization of foreign
deposits, or adoption of governmental restrictions that might adversely affect
or restrict the payment of principal and interest on foreign securities to
investors located outside the country of the issuer, whether from currency
blockage or otherwise. Since foreign securities often are purchased with and
payable in currencies of foreign countries, their value may be affected
favorably or unfavorably by changes in currency rates and exchange control
regulations. These risks are accentuated with respect to investments in
emerging market countries.
Investment income received by an Investment Fund from sources within foreign
countries may be subject to foreign income taxes withheld at the source. The
United States has entered into tax treaties with many foreign countries which
entitle the Investment Fund to a reduced rate of such taxes or exemption from
taxes on such income. It is impossible to determine the effective rate of
foreign tax in advance since the amounts of the Investment Fund's assets to be
invested within various countries is not known.
Foreign Currency Transactions
The Investment Funds may engage in foreign currency transactions for a variety
of purposes, including to "lock in" the U.S. dollar price of the security,
between trade and settlement date, the value of a security an Investment Fund
26
has agreed to buy or sell, or to hedge the U.S. dollar value of securities the
Investment Fund already owns. The Investment Funds may also engage in foreign
currency transactions for non-hedging purposes to generate returns.
Foreign currency transactions may involve, for example, the purchase of
foreign currencies for U.S. dollars or the maintenance of short positions in
foreign currencies. Foreign currency transactions may involve an Investment
Fund agreeing to exchange an amount of a currency it does not currently own
for another currency at a future date. An Investment Fund would typically
engage in such a transaction in anticipation of a decline in the value of the
currency it sells relative to the currency that the Investment Fund has
contracted to receive in the exchange. An investment adviser's success in
these transactions will depend principally on its ability to predict
accurately the future exchange rates between foreign currencies and the U.S.
dollar.
Concentration of Investments; Non-Diversified Portfolios
Investment Funds may target or concentrate their investments in particular
markets, sectors, or industries. Investment Funds also may be considered to be
non-diversified and invest without limit in a single issuer. As a result of
any such concentration of investments or non-diversified portfolios, the
portfolios of such Investment Funds are subject to greater volatility than if
they had non-concentrated and diversified portfolios. Those Investment Funds
that concentrate in a specific industry or target a specific sector will also
be subject to the risks of that industry or sector, which may include, but not
be limited to, rapid obsolescence of technology, sensitivity to regulatory
changes, minimal barriers to entry, and sensitivity to overall market swings.
Leverage
Some or all of the Investment Funds may borrow money from brokers and banks
for investment purposes. This practice, which is known as engaging in
"leverage" or making purchases on "margin," is speculative and involves
certain risks.
Trading equity securities on margin involves an initial cash requirement
representing at least 50% of the underlying security's value with respect to
transactions in U.S. markets and varying (typically lower) percentages with
respect to transactions in foreign markets. Borrowings to purchase equity
securities typically will be secured by the pledge of those securities. The
financing of securities purchases may also be effected through reverse
repurchase agreements with banks, brokers, and other financial institutions.
Although leverage will increase investment return if an Investment Fund earns
a greater return on the investments purchased with borrowed funds than it pays
for the use of those funds, the use of leverage will decrease investment
return if an Investment Fund fails to earn as much on investments purchased
with borrowed funds as it pays for the use of those funds. The use of leverage
will therefore magnify the volatility of changes in the value of the Fund's
investment in the Investment Fund. In the event that an Investment Fund's
equity or debt instruments decline in value, the Investment Fund could be
subject to a "margin call" or "collateral call," pursuant to which the
Investment Fund must either deposit additional collateral with the lender or
suffer mandatory liquidation of the pledged securities to compensate for the
decline in value. In the event of a sudden, precipitous drop in value of an
Investment Fund's net assets, the Investment Fund's investment adviser might
not be able to liquidate assets quickly enough to pay off the Investment
Fund's borrowing. Money borrowed for leveraging will be subject to interest
costs that may or may not be recovered by return on the securities purchased.
The Investment Fund also may be required to maintain minimum average balances
in connection with its borrowings or to pay a commitment or other fee to
maintain a line of credit, either of which requirements would increase the
cost of borrowing over the stated interest rate.
Investment Funds may not be subject to the same or similar asset coverage
requirements that the 1940 Act imposes in connection with borrowing.
Therefore, Investment Funds may be able to achieve greater levels of
indebtedness and, consequently, greater risk due to leveraging or high
interest payments, than would be permitted for a registered investment
company.
In order to obtain "leveraged" market exposure in certain investments and to
increase overall returns, an Investment Fund may purchase options and other
synthetic instruments that do not constitute "indebtedness" for purposes of
any
27
applicable or self-imposed asset coverage requirement. These instruments may
nevertheless involve significant economic leverage and therefore may, in some
cases, involve significant risks of loss.
Short Sales
Some or all of the Investment Funds may attempt to limit their exposure to a
possible market decline in the value of their portfolio securities through
short sales of securities that the Investment Funds believe possess volatility
characteristics similar to those being hedged. In addition, the Investment
Funds may use short sales for non-hedging purposes to pursue their investment
objectives. For example, an Investment Fund may "short" a security of a
company if, in its investment adviser's view, the security is over-valued in
relation to the issuer's prospects for earnings growth.
A short sale involves the sale of a security that is borrowed from a broker or
other institution to complete the sale. Short sales expose an Investment Fund
to the risk that it will be required to acquire, convert, or exchange
securities to replace the borrowed securities (also known as "covering" the
short position) at a time when the securities sold short have appreciated in
value, thus resulting in a loss to an Investment Fund. The risk of loss on a
short sale is theoretically unlimited.
Reverse Repurchase Agreements
Reverse repurchase agreements involve a sale of a security by an Investment
Fund to a bank or securities dealer and the Investment Fund's simultaneous
agreement to repurchase that security for a fixed price (reflecting a market
rate of interest) on a specific date. These transactions involve a risk that
the other party to a reverse repurchase agreement will be unable or unwilling
to complete the transaction as scheduled, which may result in losses to the
Investment Fund. Reverse repurchase transactions are a form of leverage that
may also increase the volatility of an Investment Fund's investment portfolio.
Purchasing Initial Public Offerings
Investment Funds may purchase securities of companies in initial public
offerings or shortly thereafter. Special risks associated with these
securities may include a limited number of shares available for trading,
unseasoned trading, lack of investor knowledge of the issuer, and limited
operating history. These factors may contribute to substantial price
volatility for the shares of these companies. Such volatility can affect the
value of the Fund's investment in Investment Funds that invest in such shares.
The limited number of shares available for trading in some initial public
offerings may make it more difficult for an Investment Fund to buy or sell
significant amounts of shares without having an unfavorable impact on
prevailing market prices. In addition, some companies in initial public
offerings are involved in relatively new industries or lines of business,
which may not be widely understood by investors. Some of these companies may
be undercapitalized or regarded as developmental stage companies, without
revenues or operating income, or the near-term prospects of achieving them.
Special Investment Instruments and Techniques, Including Derivative Instruments
Investment Funds may utilize a variety of special investment instruments and
techniques (described below) to hedge their portfolios against various risks
(such as changes in interest rates or other factors that affect security
values) or for non-hedging purposes to pursue their investment objectives.
These strategies may be executed through transactions in derivative
instruments ("Derivatives"), as well as forward contracts, swap agreements,
and when-issued and forward commitment securities. The instruments the
Investment Funds may use and the particular manner in which they may be used
can be expected to change over time as new instruments and techniques are
developed or regulatory changes occur. Certain of the special investment
instruments and techniques that the Investment Funds may use are speculative
and involve a high degree of risk, particularly in the context of non-hedging
transactions.
28
Lending Portfolio Securities
Some or all of the Investment Funds may lend securities from their portfolios
to brokers, dealers, and other financial institutions needing to borrow
securities to complete certain transactions. The lending portfolio continues
to be entitled to payments of amounts equal to the interest, dividends, or
other distributions payable on the loaned securities which affords it an
opportunity to earn interest on the amount of the loan and on the loaned
securities' collateral. Investment Funds may not be subject to the same
borrowing limitations that apply to registered investment companies. An
Investment Fund might experience loss if the institution with which it has
engaged in a portfolio loan transaction breaches its agreement with the
Investment Fund.
Restricted and Illiquid Investments
Investment Funds may acquire securities through private placements, which may
have contractual restrictions on their resale, preventing their disposition by
the Fund at any time when such sale would be desirable. Investment Funds may
also acquire securities for which no liquid market exists.
Where registration is required to sell a security, an Investment Fund may be
obligated to pay all or part of the registration expenses, and a considerable
period may elapse between the decision to sell and the time the Investment
Fund may be permitted to sell a security under an effective registration
statement. If, during such period, adverse market conditions were to develop,
the Investment Fund might obtain a less favorable price than prevailed when it
decided to sell. Investment Funds may be unable to sell restricted and other
illiquid securities at the most opportune times or at prices approximating the
value at which they purchased such securities.
Investment Funds' Investment Strategies
The Fund anticipates that many of the Investment Funds in which the Master
Fund will invest will seek, among other things, to utilize specialized
investment strategies, follow allocation methodologies, apply investment
models or assumptions, achieve a certain level of performance relative to
specified benchmarks, and enter into hedging and other strategies intended,
among other things, to affect the Investment Funds' performance, risk levels,
and/or market correlation. There can be no assurance that any Investment Fund
will have success in achieving any goal related to such practices. The
Investment Funds may be unable or may choose in their judgment not to achieve
such goals.
Limits on Hedged Strategies
While certain Investment Funds may use "market neutral" or "relative value"
hedging or arbitrage strategies, this in no respect should be taken to imply
that the Master Fund's investments with such Investment Funds are without
risk. Substantial losses may be recognized on "hedge" or "arbitrage"
positions, and illiquidity and default on one side of a position can
effectively result in the position being transformed into an outright
speculation. Every market neutral or relative value strategy involves exposure
to some second order risk of the market, such as the implied volatility in
convertible bonds or warrants, the yield spread between similar term
government bonds, or the price spread between different classes of stock for
the same underlying firm. Further, many "market neutral" Investment Funds
employ limited directional strategies that expose such Investment Funds to
certain market risks.
Legal, Tax, and Regulatory Risks
Legal, tax, and regulatory changes affecting the Investment Funds could occur
during the term of the Fund which may materially adversely affect the Fund.
For example, the regulatory and tax environment for derivative instruments in
which an Investment Fund may participate is evolving, and changes in the
regulation or taxation of derivative instruments may materially adversely
affect the value of derivative instruments held by the Investment Fund, the
ability of the Investment Fund to pursue its trading strategies, and
consequently the Fund's performance. Similarly, the regulatory environment for
leveraged investors and for hedge funds generally is evolving, and changes in
the direct or indirect regulation of leveraged investors or hedge funds may
materially adversely affect the ability of the Fund to pursue its investment
objective or strategies. Market disruptions and the dramatic increase in the
capital allocated to alternative investment strategies during recent years
have lead to increased governmental as well
29
as self-regulatory scrutiny of the hedge fund industry in general. The SEC, in
a recent report regarding the regulation of hedge funds, has recommended that
substantially all hedge fund sponsors be required to register as "investment
advisers" under the Advisers Act. In addition, certain legislation proposing
greater regulation of the industry periodically is considered by the U.S.
Congress, as well as the governing bodies of non-U.S. jurisdictions. It is
impossible to predict what, if any, changes in the regulations applicable to
the Fund, the Master Fund, the Adviser, the Investment Funds, the managers of
the Investment Funds, the markets in which they trade and invest, or the
counterparties with which they do business may be instituted in the future.
Such legislation or regulation could pose additional risks and result in
material adverse consequences to the Investment Funds or the Fund and/or limit
potential investment strategies that would have otherwise been used by the
Investment Funds' investment advisers or the Fund in order to seek to obtain
higher returns.
Limits of Risk Disclosure
The above discussions on various risks associated with the Fund, the Master
Fund, the Interests, and the Investment Funds are not, and are not intended to
be, a complete enumeration or explanation of the risks involved in an
investment in the Fund. Prospective investors should read this entire
Prospectus and the Operating Agreement and consult with their own advisers
before deciding whether to invest in the Fund. In addition, as the Fund's
investment program or market conditions change or develop over time, an
investment in the Fund may be subject to risk factors not currently
contemplated or described in this Prospectus.
INVESTOR SUITABILITY
An investment in the Fund involves a considerable amount of risk. It is
possible that an investor may lose some or all of its money. Before making an
investment decision, each prospective investor should, among other things: (i)
consider the suitability of the investment with respect to its investment
objectives and personal situation; and (ii) consider other factors including
its personal net worth, income, risk tolerance, tax situation, and liquidity
needs. An investor should invest in the Fund only money that it can afford to
lose, and it should not invest in the Fund money to which it will need access
in the short-term or on a frequent basis. In addition, prospective investors
should be aware of how the Fund's investment strategies fit into its overall
investment portfolio because the Fund is not designed to be, by itself, a
well-balanced investment for a particular investor.
MANAGEMENT OF THE FUND
The Board
The Board of the Fund and the Master Fund has overall responsibility to manage
and control the business operations of the Fund and the Master Fund on behalf
of the Members. At least a majority of the Board are and will be persons who
are not "interested persons," as defined in Section 2(a)(19) of the 1940 Act
("Independent Directors"). See "Directors and Officers" in the Fund's SAI for
identities of the Directors and executive officers of the Fund, brief
biographical information relating to each of them, and other information
regarding election of the Board and Board membership. The Offshore Fund has
two members, the Fund and the Adviser (which holds only a nominal, non-voting
interest). The Fund is the managing member of the Offshore Fund, and the
members have delegated the day-to-day management and general oversight
responsibilities of the Offshore Fund to the Fund. The Offshore Fund therefore
is effectively controlled by the Board of the Fund.
The Adviser
Under the supervision of the Board and pursuant to the Investment Management
Agreement, DBIM, a registered investment adviser with headquarters at 25
DeForest Avenue, Summit, New Jersey 07901, will provide investment supervisory
services to the Master Fund, including serving as investment adviser for the
Master Fund. As the Master Fund's investment adviser, DBIM will make the
Master Fund's investment decisions. DBIM will buy and sell securities for the
Master Fund and conduct the research that leads to the purchase and sale
decisions. As necessary, DBIM will also be responsible for selecting brokers
and dealers and for negotiating brokerage commissions and dealer charges or
other transaction costs.
30
DBIM is an indirect wholly owned subsidiary of Deutsche Bank, an international
commercial and investment banking group. Deutsche Bank is a major global
banking institution that is engaged in a wide range of financial services
activities, including investment management; mutual funds; retail, private,
and commercial banking; investment banking; and insurance.
DB Absolute Return Strategies is the marketing name for the absolute return
strategies activities of Deutsche Bank AG and certain of its subsidiaries,
including DBIM, Deutsche Asset Management, Inc., Deutsche Bank Trust Company
Americas, Deutsche Bank Securities Inc., Deutsche Asset Management
Investmentgesellschaft mbH Frankfurt am Main, Deutsche Asset Management
(Australia) Limited, and Deutsche Asset Management Limited. DBIM serves as
investment adviser to the Master Fund and other institutional and privately
managed accounts. As of March 31, 2004, DB Absolute Return Strategies
(including DBIM) had total assets of approximately US $8.9 billion under
management. As of March 31, 2004, Deutsche Bank had total assets of
approximately U.S. $725 billion under management.
DBIM and its affiliates serve as investment adviser to other registered and/or
private investment funds that utilize investment programs similar to that of
the Master Fund, and DBIM and/or its affiliates may in the future serve as an
investment adviser or general partner of other registered and/or private
investment companies with similar investment programs.
Subject to the general supervision of the Board and in accordance with the
investment objective, policies, and restrictions of the Fund, DBIM will
provide the Master Fund with ongoing investment guidance, policy direction,
and monitoring of the Master Fund pursuant to the Investment Management
Agreement. The Investment Management Agreement may be terminated by the Board,
by a majority vote of the Members, or by the Adviser.
Portfolio Manager
The DB Absolute Return Strategies Fund of Funds team ("DB ARS-FOF") will be
primarily responsible for the investment management of the Master Fund with
respect to the Adviser. The DB ARS-FOF team is comprised of a group of
dedicated analysts with responsibility for performing due diligence and
analysis on Investment Fund investments and for the portfolio management of
the Master Fund. A senior analyst will be responsible for the day-to-day
investment management of the Master Fund and will be supported by a back-up
analyst. Mr. Raymond C. Nolte is primarily responsible for the management of
the DB ARS-FOF team and as such will have overall responsibility for the
Master Fund. Mr. Nolte is Managing Director and Global Head of Fund-of-Funds
for DB Absolute Return Strategies, where he is responsible for the investment
management and development of the Adviser's multi-manager hedge fund products.
Additionally, he manages several strategy-specific funds-of-funds and
multi-manager separate accounts. Mr. Nolte joined Bankers Trust Company, the
predecessor to Deutsche Bank Trust Company Americas (an affiliate of the
Adviser), in May 1983 as part of the Foreign Exchange Sale and Trading and
International Fixed Income groups. He was in the Corporate Capital Markets
group and was involved in structuring and executing risk management and
diversification strategies for high net worth clients as well as developing
derivatives investment products. Prior to his current position, he was
responsible for developing and managing global balanced portfolios. Mr. Nolte
received a BBA from The George Washington University.
The Administrator
PFPC, whose principal business address is 400 Bellevue Parkway, Wilmington,
Delaware 19809, will have responsibility for providing administrative services
and assisting the Fund and the Master Fund with operational needs pursuant to
an administration agreement (the "Administration Agreement"). Pursuant to the
Administration Agreement, PFPC will provide the following services, among
others: journalize investment, capital, and income and expense activities;
verify investment instructions before directing cash flows, and confirm
receipt of money at Investment Funds in accordance with PFPC's internal
procedures; maintain individual ledgers for investment securities; maintain
historical tax lots for each security; record and reconcile corporate action
activity and all other capital changes; reconcile cash and investment balances
of the Fund and the Master Fund with the Master Fund's custodian and provide
information about available cash balances; calculate contractual expenses,
including Investment Management Fees and Incentive Allocations; prepare
financial statements; monitor expense accruals; control all disbursements and
authorize disbursements from the Master Fund's account with the custodian;
calculate capital gains and losses; determine net investment income; assist
with the preparation and distribution of portfolio
31
management reports; obtain net asset values from Investment Funds and
calculate net asset values in accordance with this Prospectus and the
Operating Agreement; and prepare regulatory filings. In consideration for
these services, the Fund will pay PFPC a fee at the annual rate of [o]% of the
Fund's month-end net assets based on the Fund's proportional investment in the
Master Fund.
PFPC will also serve as the Fund's and the Master Fund's transfer and
distribution disbursing agent, and has agreed to provide the following
services, among others: maintain the register of Members and enter on such
register all issues, transfers, and repurchases of Interests; calculate
repurchase prices; allocate income, expenses, gains, and losses to Members'
Capital Accounts; prepare and mail tax forms; prepare and distribute interim
tax reports; mail prospectuses; process payments; and confirm account
activity. The Fund will compensate PFPC for its services under the
Administration Agreement based on the Fund's proportional investment in the
Master Fund.
PFPC is an affiliate of PFPC Trust Company, the custodian.
The Fund and the Master Fund also have retained Investment Company Capital
Corporation ("ICCC"), an affiliate of DBIM, to provide board-related
administration services pursuant to a services agreement. Under this
agreement, ICCC will, among other things: draft board meeting agendas and
resolutions; prepare and mail board materials; communicate with the Directors;
and attend board meetings and draft board meeting minutes. ICCC will be
compensated for its services by the Fund based on the Fund's proportional
investment in the Master Fund.
The Custodian
PFPC Trust Company (the "Custodian"), whose principal business address is 8800
Tinicum Boulevard, 3rd Floor, Philadelphia, Pennsylvania 19153, will serve as
the custodian of the Fund's, the Offshore Fund's, and the Master Fund's assets
pursuant to a custodian services agreement, under which the Custodian, among
other thing, will: open and maintain separate accounts in the Fund's, the
Offshore Fund's, and the Master Fund's name; make cash payments from the
accounts for purposes set forth in the agreement; hold securities in accounts;
release and deliver or exchange securities owned by the Fund, the Offshore
Fund, and the Master Fund as set forth in the agreement; collect and receive
for the account of the Fund, the Offshore Fund, and the Master Fund all
income, property, and similar items; settle purchased securities upon receipt;
and furnish to the Fund, the Offshore Fund, and the Master Fund periodic and
special reports, statements, and other information. The Custodian is an
affiliate of PFPC, the Fund's and the Master Fund's administrator and transfer
and distribution disbursing agent.
FEES, ALLOCATIONS, AND EXPENSES
Advisory Fee
The Master Fund will pay to the Adviser, and the Fund as an indirect investor
in the Master Fund will bear, an Investment Management Fee at an annual rate
equal to 1.0% of the Master Fund's month-end net assets, including assets
attributable to the Adviser (or its affiliates) and before giving effect to
any repurchases by the Master Fund of interests in the Master Fund. The
Investment Management Fee will accrue monthly and will be payable at the end
of each quarter. The Investment Management Fee will be an expense out of the
Master Fund's assets, and will be reflected in each Member's Capital Account
(including Capital Accounts of the Adviser and its affiliates, if any). Net
assets means the total value of all assets under management of the Master
Fund, less all accrued debts, liabilities, and obligations of the Master Fund,
calculated before giving effect to any repurchase of Interests on the date of
calculation.
Incentive Allocation
The Operating Agreement provides that as of each March 31, upon any repurchase
of Interests (solely with respect to the Interests repurchased), and upon
termination of the Fund (each, a "Performance Period"), a reallocation (the
"Incentive Allocation") will be made from the Capital Account of each Member
(other than the Adviser) to the Capital Account of the Adviser. The Incentive
Allocation will be equal to 10% of the amount, if any, by which (i) the net
profit, if any, initially allocated to such Member's Capital Account during
such Performance Period in excess of the Hurdle (as defined below) for such
Performance Period exceeds (ii) the positive balance, if any, as of
32
the beginning of such Performance Period in such Member's Loss Carryforward
Account (as defined below); provided, that the Hurdle will be adjusted
appropriately for additional Capital Contributions or repurchases made by the
relevant Member during such Performance Period.
The Hurdle Rate will be calculated monthly and will equal the average of the
weekly average 90-day U.S. Treasury bill rates for that month as reported in
Federal Reserve Bulletin H-15 (or other available source). The Hurdle will be
calculated for each Performance Period, will be non-cumulative from
Performance Period to Performance Period, and will be equal to the product of
(i) the average of the Hurdle Rates during such Performance Period and (ii)
the Net Assets of the relevant Capital Account at the beginning of such
Performance Period (adjusted for Capital Contributions and repurchases).
The "Loss Carryforward Account" with respect to a Capital Account held by each
Member is a bookkeeping account which commences at zero and as of the first
day of each Performance Period is increased by the aggregate amount of net
loss allocated to such Member's Capital Account for the immediately prior
Performance Period, and decreased (but not below zero) by the aggregate amount
of net profit allocated to such Member's Capital Account for such prior
Performance Period. Further adjustments are made to the Loss Carryforward
Account in the case of repurchases of part but not all of a Member's Interest
to reduce any positive balance by the percentage that the amount of the
Interest so repurchased is of the total Capital Account balance before such
repurchase. Thus, the Incentive Allocation will be applied on a "high water
mark" basis such that in the event a Capital Account suffers a net loss in a
particular Performance Period, no Incentive Allocation will be made to the
Adviser in respect of such Capital Account with respect to such Performance
Period or any subsequent Performance Period, until such net loss is first
recovered (taking into account interim repurchases of Interests, if any).
Distribution Expenses
Pursuant to an Underwriting and Distribution Services Agreement between the
Fund and the Distributor (the "Underwriting Agreement"), the Distributor bears
all of its expenses of providing distribution services as described under that
agreement. The Fund will assume and pay all charges not specifically assumed
or otherwise to be provided by the Distributor under the Underwriting
Agreement. The Fund will pay (or will enter into arrangements providing that
others will pay), among other things, (i) all fees and expenses in connection
with the registration of the Fund and the Interests under the United States
securities laws and the registration and qualification of Interests for sale
in the various jurisdictions in which the Fund will determine it advisable to
qualify such Interests for sale; and (ii) the cost of preparing and printing
of sufficient copies of the Fund's Prospectus, SAI, and any other sales
material (and any supplements or amendments thereto).
The Distributor may enter into related selling group agreements with various
broker-dealers, including affiliates of the Distributor, that provide
distribution services to investors. The Distributor may also provide
distribution services. The Distributor may reallow to broker-dealers
participating in the offering up to the full applicable sale charge of 2.5%.
The Distributor, the Adviser, or their affiliates may pay from their own
resources additional compensation to brokers and dealers in connection with
the sale and distribution of the Interests or servicing of investors.
Sales Charges
Investments may be subject to a sales charge of up to 2.5%, subject to waiver
or adjustment in the sole discretion of the Distributor. Without limiting the
foregoing, the sales charge is expected to be waived for certain institutional
investors and certain persons associated with the Adviser or its affiliates.
The sales charge will be added to each prospective investor's purchase amount,
and will not constitute part of a Member's capital contribution to the Fund or
part of the assets of the Fund.
Administrative Fee
The Fund will pay PFPC an administrative fee at an annual rate equal to [o]%
of the Fund's month-end net assets based on the Fund's proportional investment
in the Master Fund, before giving effect to any repurchases by the Fund of
Interests.
33
Other Expenses
The Fund will pay all of the Fund's expenses other than those that the Adviser
or an affiliate of the Adviser assumes. The expenses of the Fund will include,
but will not be limited to, fees and expenses in connection with the
organization of the Fund, including offering expenses; brokerage commissions;
interest and fees on any borrowings by the Fund; fees and expenses of outside
legal counsel (including fees and expenses associated with review of
documentation for prospective investments by the Fund), including foreign
legal counsel; independent auditors' fees; fees and expenses in connection
with repurchase offers and any repurchases of Interests; taxes and
governmental fees (including tax preparation fees); custody fees; expenses of
preparing, printing, and distributing offering memoranda and any other sales
material (and any supplements or amendments thereto), reports, notices, other
communications to Members, and proxy materials; expenses of preparing,
printing, and filing reports and other documents with government agencies;
expenses of Members' meetings; expenses of corporate data processing and
related services; Member recordkeeping and Member account services, fees, and
disbursements; fees and expenses of the Directors that the Adviser, the
Distributor, or their affiliates do not employ; insurance premiums; and
extraordinary expenses such as litigation expenses. The Fund will also bear,
as an an indirect investor in the Master Fund, its allocable portion of the
fees and expenses of the Master Fund. The Fund may need to sell portfolio
securities to pay fees and expenses, which could cause the Fund to realize
taxable gains.
The Fund's offering expenses will be expensed as incurred. The organizational
expenses of the Fund, the Offshore Fund, and the Master Fund will be amortized
during the first fiscal year of the Fund's operations.
The Offshore Fund is expected to have minimal expenses, and the Adviser, or an
affiliate of the Adviser, has agreed to bear all operating expenses of the
Offshore Fund.
The Investment Funds will bear various fees and expenses in connection with
their operations. These fees and expenses are similar to those to be incurred
by the Fund. The Investment Funds will pay asset-based fees to their
investment advisers and generally may pay performance-based fees or
allocations to the investment advisers, which effectively reduce the
investment returns of the Investment Funds. These expenses, fees, and
allocations will be in addition to those incurred by the Fund and/or the
Master Fund itself. As an indirect investor in the Investment Funds, the Fund
will bear a portion of the expenses and fees of the Investment Funds.
Generally, fees payable to investment advisers of the Investment Funds will
generally range from 1% to 3% (annualized) of the average net asset value of
the Master Fund's investment, and incentive allocations or fees will generally
range from 15% to 25% of an Investment Fund's net profits or performance.
PORTFOLIO TRANSACTIONS
The Master Fund
It is the policy of the Master Fund to obtain the best results in connection
with effecting its portfolio transactions taking into account certain factors
as set forth below. In most instances, the Master Fund will purchase
securities directly from an Investment Fund, and such purchases by the Master
Fund may be, but are generally not, subject to transaction expenses.
Nevertheless, the Master Fund anticipates that some of its portfolio
transactions may be subject to expenses.
The Master Fund contemplates that, consistent with the policy of obtaining the
best net result, any brokerage transactions of the Master Fund may be
conducted through affiliates of the Adviser. The Board has adopted procedures
in conformity with Section 17(e) of the 1940 Act to ensure that all brokerage
commissions paid to affiliates are fair and reasonable. As discussed below,
the Investment Funds may also conduct brokerage transactions through
affiliates of the Adviser. Transactions for the Master Fund will not be
effected on a principal basis with the Adviser, any of its affiliates, or
other affiliates of the Fund or the Master Fund (unless, and in the manner,
permitted under the 1940 Act). However, such entities may effect brokerage
transactions for the Master Fund. These transactions would be effected in
accordance with procedures adopted by the Master Fund pursuant to Section
17(e) of the 1940 Act and rules and regulations promulgated thereunder. Among
other things, Section 17(e) and those procedures provide that, when acting as
broker for the Master Fund in connection with the sale of securities to or by
the Master Fund, the Adviser or their affiliates may receive compensation not
exceeding: (i) the usual and customary broker's commission for transactions
effected on a national securities exchange; (ii) 2% of the
34
sales price for secondary distributions of securities; and (iii) 1% of the
sales price for other purchases or sales. Brokerage transactions effected by
the Investment Funds with the Adviser or any of its affiliates will not be
subject to the limitations imposed by Section 17(e) of the 1940 Act.
The Master Fund (and the Fund, as an indirect investor in the Master Fund)
will bear any commissions or spreads in connection with its portfolio
transactions. In placing orders, it is the policy of the Master Fund to obtain
the best results taking into account the broker-dealer's general execution and
operational facilities, the type of transaction involved, and other factors
such as the broker-dealer's risk in positioning the securities involved. While
the Adviser will generally seek reasonably competitive spreads or commissions,
the Master Fund will not necessarily be paying the lowest spread or commission
available. In executing portfolio transactions and selecting brokers or
dealers, the Adviser will seek to obtain the best overall terms available for
the Master Fund. In assessing the best overall terms available for any
transaction, the Adviser will consider factors deemed relevant, including the
breadth of the market in the security, the price of the security, the
financial condition and execution capability of the broker or dealer, and the
reasonableness of the commission, if any, both for the specific transaction
and on a continuing basis. The overall reasonableness of brokerage commissions
paid will be evaluated by the Adviser based upon its knowledge of available
information as to the general level of commission paid by other institutional
investors for comparable services. Transactions on U.S. stock exchanges and on
some foreign stock exchanges involve the payment of negotiated brokerage
commissions. On the great majority of foreign stock exchanges, however,
commissions are fixed. No stated commission is generally applicable to
securities traded in over-the-counter markets, but the prices of those
securities include undisclosed commissions or mark-ups.
The Investment Funds
The Investment Funds will incur transaction expenses in the management of
their portfolios, which will decrease the value of the Master Fund's
investment in the Investment Funds. In view of the fact that the investment
program of certain of the Investment Funds may include "trading" as well as
"investments," short-term market considerations will frequently be involved,
and it is anticipated that the turnover rates of the Investment Funds may be
substantially greater than the turnover rates of other types of investment
vehicles. In addition, the order execution practices of the Investment Funds
may not be transparent to the Master Fund. Each Investment Fund is responsible
for placing orders for the execution of its portfolio transactions and for the
allocation of its brokerage. The Adviser will have no direct or indirect
control over the brokerage or portfolio trading policies employed by the
investment advisers of the Investment Funds. The Adviser expects that each
Investment Fund will generally select broker-dealers to effect transactions on
the Investment Fund's behalf substantially in the manner set forth below.
Each Investment Fund will have a policy of generally seeking reasonably
competitive commission rates. However, an Investment Fund will not necessarily
pay the lowest commission available on each transaction, and may engage in
transactions with broker-dealers based on different criteria than those
considered by the Master Fund, and use "soft dollars" for payment of expenses
related to research and other services used by the investment adviser of the
Investment Fund. Investment Funds may not be subject to the same regulatory
restrictions on principal and agency transactions. It is anticipated that some
Investment Funds may effect principal or agency transactions through
affiliates of the Adviser. The Fund will indirectly bear the commissions or
spreads in connection with the portfolio transactions of the Investment Funds.
No guarantee or assurance can be made that an Investment Fund's brokerage
transaction practices will be transparent or that the Investment Fund will
establish, adhere to, or comply with its stated practices. As the Investment
Funds are not investment companies registered under the 1940 Act, they may
select brokers on a basis other than that outlined above and may receive
benefits other than research or that benefit the Investment Fund's investment
adviser or its affiliates rather than the Investment Fund.
As with the Master Fund, Investment Funds may make investments directly in the
issuers of their underlying securities, and in some instances may not be
subject to transaction expenses.
VOTING
Each Member will have the right to cast a number of votes based on the value
of such Member's Capital Account at any meeting of Members called by the (i)
Directors or (ii) Members holding at least a majority of the total number of
35
votes eligible to be cast by all Members. Members will be entitled to vote on
any matter on which shareholders of a registered investment company organized
as a corporation would be entitled to vote, including selection of Directors.
Except for the exercise of their voting privileges, Members will not be
entitled to participate in the management or control of the Fund's business,
and may not act for or bind the Fund.
Whenever the Fund as an investor in the Master Fund, through the Offshore
Fund, is requested to vote on matters pertaining to the Master Fund (other
than the termination of the Master Fund's business, which may be determined by
the Board of the Master Fund without investor approval), the Offshore Fund
will pass voting rights to the Fund, and the Fund will hold a meeting of the
Members and vote its interest in the Master Fund, through the Offshore Fund,
for or against such matters proportionately to the instructions to vote for or
against such matters received from the Members. Thus, the Offshore Fund will
not vote on Master Fund matters requiring a vote of Master Fund members
without the instruction of the Members of the Fund. The Fund will vote
Interests for which it receives no voting instructions in the same proportion
as the Interests for which it receives voting instructions.
CONFLICTS OF INTEREST
Certain conflicts of interest may arise in relation to the Fund, the Offshore
Fund, and the Master Fund.
Other Ventures of the Adviser. The Adviser and its affiliates may organize or
become involved in other business ventures. None of the Fund, the Offshore
Fund, or the Master Fund will share in the risks or rewards of such other
ventures. However, such other ventures will compete with the Master Fund for
the time and attention of the Adviser and might create additional conflicts of
interest. Although neither the Investment Management Agreement nor the
delegation agreement require the Adviser to devote its full time or any
specified portion of their time to the Master Fund, the Adviser intends to
dedicate a reasonable amount of time to the Master Fund and its activities.
Advisory Time. Although the officers and employees of the Adviser and the
Administrator will devote as much time to the Fund, the Offshore Fund, and the
Master Fund as they believe is necessary to assist the Fund in achieving its
investment objectives and to administer the operations of such entities, they
will not devote substantially all or any specific portion of their working
time to the affairs of the Fund, the Offshore Fund, and the Master Fund as
they must devote a portion of their time to other funds and investments. The
officers and key employees of the Adviser and the Administrator may not have
or may terminate employment agreements and the loss of the services of one or
more of them may have a material adverse effect on the Fund.
"Soft Dollar" Payments. The brokers utilized by the Investment Funds will be
selected by the managers of the Investment Funds. Any manager of a Investment
Fund may engage in "soft dollar" practices whether or not such practices fall
within the soft dollar safe harbor established by Section 28(e) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Thus, an
Investment Fund manager may receive "brokerage and related services" covered
by such safe harbor as well as office space, overhead expense reimbursement,
and similar benefits not covered by such safe harbor. In doing so, the
Investment Fund managers may pay higher commissions than those charged by
brokers that do not provide such services or benefits.
Allocation of Investment Opportunities. The Adviser and its affiliates have
other investment advisory clients and investment vehicles and have discretion
to allocate investment opportunities and dispositions fairly among all clients
or vehicles. The Adviser may determine that an investment opportunity in an
Investment Fund is appropriate for a particular fund or account that it
manages, or for itself, but not for the Master Fund. Situations may arise in
which private investment funds managed by the Adviser or its affiliates have
made investments that would have been suitable for investment by the Master
Fund but, for various reasons, were not pursued by, or available to, the
Master Fund. To the extent that entities affiliated with the Adviser invest in
Investment Funds, the ability of the Master Fund to invest in the same
Investment Funds may be adversely affected by any limitation on availability
of the investment. In addition, the Adviser may be required to choose between
the Master Fund and other advisory clients in allocating investments in
Investment Funds and managed accounts. Decisions with regard to the allocation
of investment opportunities between the Master Fund and other clients of the
Adviser will be made in accordance with the allocation procedures of the
Master Fund, which have been approved by the Board.
36
Preferential Terms. The Adviser, its affiliates, or accounts other than the
Master Fund managed by the Adviser or its affiliates may invest in Investment
Funds on terms more favorable than those available to the Master Fund, and as
investors in such Investment Funds may act in ways adverse to the interests of
the Master Fund.
Cross Trades with other Adviser Clients. To the extent permitted under Section
17 of the 1940 Act, the Adviser may cause the Master Fund to purchase
securities from or sell securities and interests in Investment Funds to other
clients or vehicles when the Adviser believes such transactions are
appropriate and in the best interests of the Master Fund. In the event the
Adviser wishes to reduce the investment of one or more such funds in an
Investment Fund and increase the investment of other funds in such Investment
Fund, it may effect such transactions by directing the transfer of the
interests between funds. Any incremental costs and expenses associated with
any such investment will be borne by all such classes of such funds (including
the Master Fund) on a pro rata basis. In addition, the Adviser may recommend
that the Master Fund purchase or sell an investment that is being sold or
purchased, respectively, at the same time by the Adviser, an affiliate, or
another advisory client.
Fees and Incentive Allocation. The Advisory Fee and Incentive Allocation have
not been negotiated at arm's-length and may be higher than advisory fees or
incentive allocations charged by or to others. The Board has determined the
level of such Advisory Fee and Incentive Allocation to be appropriate in light
of the services provided. The Incentive Allocation allocable to the Adviser is
based on net profits. This arrangement may create an incentive for the Adviser
to invest Master Fund assets in investments that are riskier or more
speculative than would be the case if the Adviser was compensated based on a
flat percentage of capital. In addition, the Incentive Allocation is
determined on the basis of the value of Capital Accounts, including value
attributable to unrealized appreciation. Any securities traded directly by the
Master Fund for which market quotations are not available may be valued by or
at the direction of the Adviser at such value as it may reasonably determine
and may not be independently valued or verified by a third party. The Adviser
may have an incentive to place the highest reasonable value on the Master
Fund's respective investments.
Structured Investments. To the extent permitted by Section 17 of the 1940 Act,
the Adviser or an affiliate thereof may serve as counterparty to the Master
Fund for certain Structured Investments and may earn additional revenues in
connection with structuring such transactions. Although such transactions will
only be undertaken when the Adviser believes they are in the best interest of
the Master Fund and the Board will review and approve such transactions, the
additional revenues available from Structured Investments may create an
incentive for the Adviser to purchase Structured Investments linked to the
return of Investment Funds rather than making direct investments.
Investment Fund Transactions with Affiliates. Affiliates of the Adviser,
including Deutsche Bank AG and its brokerage subsidiaries, may invest in and
have other relationships with the Investment Funds in which the Fund will
invest that may give rise to potential conflicts. Affiliates of the Adviser
may, for example, enter into transactions, as principal, with any of the
Investment Funds, including derivative transactions, or perform routine
broker-dealer transactions. Other relationships may include, but are not
limited to, providing seed capital, lending transactions in which the
affiliate provides financing, serving as placement agent or prime broker and
the provision of general financial advisory services to an Investment Fund. In
addition, to the extent permitted by the 1940 Act, certain Deutsche Bank
affiliates may provide brokerage or other services from time to time to one or
more accounts or entities managed by the investment advisers or Investment
Funds or their affiliates. Deutsche Bank affiliates may provide prime
brokerage or other brokerage services to the Investment Funds in compliance
with applicable law. Accordingly, the Adviser may face a conflict of interest
in evaluating investments in and withdrawals from Investment Funds (e.g., a
withdrawal from an Investment Fund could adversely impact the business
relationships between Deutsche Bank and such Investment Fund). In addition,
situations may arise in which an affiliate believes that, to protect its own
commercial interests, it may be necessary to take action with respect to an
Investment Fund that may be detrimental to such Investment Fund (e.g.,
terminating a trading facility or foreclosing on collateral), and therefore
inadvertently detrimental to the Fund. Deutsche Bank AG may keep any profits,
commissions, and fees accruing to it in connection with its activities for
itself and other clients, including such Investment Funds, and the fees
payable from the Master Fund to the Adviser will not be reduced thereby.
Material Nonpublic Information. Due to the relationships described above,
affiliates of the Adviser may have access to material nonpublic information
regarding the Investment Funds in which the Master Fund will invest. Investors
should be aware, however, that the Adviser will generally be unable to access
such information due to confidentiality, "Ethical Wall," or other legal
considerations. As a result, the Adviser may sometimes make
37
investment decisions different than those it would make if it had such access,
and such decisions may result in a material loss to the Fund. The Adviser's
affiliates are not required to afford the Adviser access to all relevant
information they may possess. However, in the event that the Adviser does
receive such material nonpublic information, it may be prohibited from
effecting transactions in Investment Funds that it would desire to effect and
thus incur losses. Further, by reason of the advisory, due diligence,
committee participation, and other activities of the Adviser and its
affiliates, the Adviser or related persons may acquire confidential or
material nonpublic information or be restricted from initiating transactions
in certain securities. The Adviser and related persons will not be free to
divulge, or to act upon, any such confidential or material nonpublic
information and, due to these restrictions, the Adviser may not initiate a
transaction for the Master Fund's account that the Adviser otherwise might
have initiated, and the Master Fund may be frozen in an investment position
that it otherwise might have liquidated or closed out.
Underwriting. An Investment Fund may purchase investments that are issued, or
the subject of an underwriting or other distribution, by Deutsche Bank AG or
an affiliate. An Investment Fund may invest, directly or indirectly, in the
securities of companies affiliated with Deutsche Bank AG or in which Deutsche
Bank AG has an equity or participation interest. The purchase, holding, and
sale of such investments by an Investment Fund may enhance the profitability
of Deutsche Bank AG's own investments in such companies.
Proprietary Trading. Deutsche Bank AG and its affiliates are major
participants in the equity, fixed income, global currency, commodity,
derivative, and other markets. As such, Deutsche Bank AG and its affiliates,
including the Adviser, are actively engaged in transactions in the same
securities and other instruments in which the Investment Funds may invest.
Deutsche Bank AG and its affiliates are not under any obligation to share any
investment opportunity, idea, or strategy with the Master Fund or an
Investment Fund. As a result, Deutsche Bank AG and its affiliates may compete
with the Master Fund and the Investment Funds for appropriate investment
opportunities. Deutsche Bank AG and its affiliates may also have material
nonpublic information about an issuer in whose securities the Fund has
invested and generally will not share such information with the Master Fund or
the Investment Funds.
The Adviser and its principals, affiliates, and employees may trade in the
securities and derivatives markets for their own accounts and the accounts of
their clients, and in doing so may take positions opposite to, or ahead of,
those held by the Master Fund or may be competing with the Master Fund for
positions in the marketplace. Such trading may result in competition for
investment opportunities or create other conflicts of interest on behalf of
one or more such persons in respect of their obligations to the Master Fund
and the Fund. Records of this trading will not be available for inspection by
Members.
The proprietary activities or portfolio strategies of Deutsche Bank affiliates
or the activities or strategies used for accounts managed by Deutsche Bank and
its affiliates for other customer accounts could conflict with the
transactions and strategies employed by the Master Fund or an Investment Fund
and affect the prices and availability of the securities and instruments in
which the Master Fund or an Investment Fund invests. Issuers of securities
held by the Investment Funds may have publicly or privately traded securities
in which Deutsche Bank affiliates are investors or make a market. The trading
activities of Deutsche Bank affiliates generally are carried out without
reference to positions held directly or indirectly by the Investment Funds and
may have an effect on the value of the positions so held or may result in
Deutsche Bank affiliates having an interest in the issuer adverse to that of
the Investment Fund.
In particular, various affiliates of the Adviser may be significant investors
in Investment Funds for their proprietary accounts and to hedge derivative
transactions linked to such Investment Funds. Such affiliates' investments in
and withdrawals from Investment Funds will be made in their best interests and
without regard to the Master Fund's interests. The Adviser may share
information regarding Investment Funds with such affiliates and may receive
referrals regarding Investment Funds from such affiliates.
Investment Advisers to the Investment Funds
Other Clients Advised by Investment Advisers. Conflicts of interest may arise
from the fact that the investment advisers of the Investment Funds and their
affiliates generally will be carrying on substantial investment activities for
other clients, including other investment funds, in which the Master Fund will
have no interest. The investment
38
advisers of the Investment Funds may have financial incentives to favor
certain of such accounts over the Investment Funds. Any of their proprietary
accounts and other customer accounts may compete with the Investment Fund for
specific trades, or may hold positions opposite to positions maintained on
behalf of the Investment Fund. The investment advisers of the Investment Funds
may give advice and recommend securities to, or buy or sell securities for, an
Investment Fund in which the Master Fund has invested, which advice or
securities may differ from advice given to, or securities recommended or
bought or sold for, other accounts and customers even though their investment
objectives may be the same as, or similar to, those of the Master Fund.
Allocation of Investment Opportunities. Each investment adviser of an
Investment Fund will evaluate a variety of factors that may be relevant in
determining whether a particular investment opportunity or strategy is
appropriate and feasible for the relevant Investment Fund and accounts under
management at a particular time, including, but not limited to, the following:
(i) the nature of the investment opportunity taken in the context of the other
investments at the time; (ii) the liquidity of the investment relative to the
needs of the particular entity or account; (iii) the availability of the
opportunity (i.e., size of obtainable position); (iv) the transaction costs
involved; and (v) the investment or regulatory limitations applicable to the
particular entity or account. Because these considerations may differ, the
investment activities of an Investment Fund, on the one hand, and other
managed accounts, on the other hand, may differ considerably from time to
time. In addition, the fees and expenses of the Investment Fund may differ
from those of the other managed accounts. Accordingly, prospective Members
should note that the future performance of an Investment Fund and its
investment adviser's other accounts will vary.
Aggregation of Orders. When an investment adviser of an Investment Fund
determines that it would be appropriate for an Investment Fund and one or more
of its other accounts to participate in an investment opportunity at the same
time, it may attempt to aggregate, place, and allocate orders on a basis that
the investment adviser of the Investment Fund believes to be fair and
equitable, consistent with its responsibilities under applicable law.
Decisions in this regard are necessarily subjective and there is no
requirement that the Investment Fund participate, or participate to the same
extent as the other accounts, in all trades.
Situations may occur, however, where the Fund could be disadvantaged because
of the investment activities conducted by an investment adviser of an
Investment Fund for its other accounts. Such situations may be based on, among
other things, the following: (i) legal restrictions on the combined size of
positions that may be taken for an Investment Fund or the other accounts,
thereby limiting the size of the Investment Fund's position; (ii) the
difficulty of liquidating an investment for an Investment Fund or the other
accounts where the market cannot absorb the sale of the combined positions;
and (iii) the determination that a particular investment is warranted only if
hedged with an option or other instrument and there is a limited availability
of such options or other instruments.
Proprietary Trading. Each investment adviser of an Investment Fund and its
principals, officers, employees, and affiliates, may buy and sell securities
or other investments for their own accounts and may have actual or potential
conflicts of interest with respect to investments made on behalf of the Fund
or an Investment Fund. As a result of differing trading and investment
strategies or constraints, positions may be taken by principals, officers,
employees, and affiliates of the investment adviser of the Investment Fund
that are the same, different, or made at a different time than positions taken
for the Investment Fund.
Performance-Based Compensation. The investment advisers of the Investment
Funds may receive incentive fees or allocations in the event that the relevant
Investment Fund generates net profits. The fact that such incentive fees or
allocations are payable or made only out of net profits may create an
incentive for the investment adviser of an Investment Fund to make investments
that are riskier or more speculative than would be the case if such investment
adviser were compensated solely based on a flat percentage of capital. In
addition, the investment adviser of an Investment Fund may receive increased
compensation because the incentive fee or allocation may be calculated on a
basis that includes unrealized appreciation as well as realized gains.
ELIGIBLE INVESTORS
Each prospective investor (and each Member who makes an additional capital
contribution) will be required to certify that the Interest purchased is being
acquired directly or indirectly for the account of an "Eligible Investor." An
"Eligible Investor" includes, among other investors, a person who is (i) an
"accredited investor" as defined in Regulation D under the Securities Act, and
(ii) a "qualified client" as defined in Rule 205-3 of the Advisers Act,
39
except as otherwise determined by the Fund. In addition, investors must
qualify as a "tax-exempt investor" for U.S. federal income tax purposes. The
relevant investor qualifications are set forth in the investor certification
that each investor must sign in order to invest in the Fund, a form of which
appears as Appendix A to this Prospectus. Existing Members who make additional
capital contributions will be required to meet the Fund's eligibility criteria
at the time of the additional capital contribution. Any transferee of an
Interest must satisfy the Fund's eligibility criteria at the time of the
transfer. See "Transfers of Interests."
SUBSCRIPTION FOR INTERESTS
Scudder Distributors, Inc., 222 South Riverside Plaza, Attn: Correspondence
27th Floor, Chicago, IL 60606-1048, is the distributor of the Interests
pursuant to an Underwriting Agreement between the Fund and the Distributor.
The Distributor will offer the Interests in a continuous offering at net asset
value, plus any applicable sales charges. The initial closing date for
subscriptions for Interests is [October 1, 2004] (or such earlier or later
date as the Board may determine) (the "Initial Closing Date"). The Initial
Closing Date may be postponed for up to 90 days in the discretion of the
Board. The Fund will not commence trading until at least $25 million in
subscriptions has been accepted. If the Fund has not received $25 million in
initial subscriptions by the Initial Closing Date (as may be postponed), the
Fund will return to subscribers the amount of their subscriptions, plus
accrued interest, if any. If the Fund receives $25 million in initial
subscriptions on the Initial Closing Date, it will commence trading
operations, and thereafter, initial and subsequent purchases of Interests
generally will be accepted monthly.
Investments may be subject to a sales charge of up to 2.5%, subject to waiver
or adjustment in the sole discretion of the placement agent. Without limiting
the foregoing, the sales charge is expected to be waived for certain
institutional investors and certain persons associated with the Adviser or its
affiliates. The sales charge will be added to each prospective investor's
purchase amount, and will not constitute part of a Member's capital
contribution to the Fund or part of the assets of the Fund. All purchases are
subject to the receipt of cleared funds two business days prior to the
acceptance date. Generally, the minimum required initial purchase by each
investor is $25,000, subject to the discretion of the Board to accept lesser
amounts.
Both initial and additional purchases of Interests in the Fund may be accepted
from investors at such times as the Board may determine on the terms set forth
below. The Board may, in its discretion, suspend or discontinue the offering
of Interests at any time (e.g., to the extent required for purposes of
compliance with the securities laws; in response to market conditions in the
securities market(s); or otherwise) or permit purchases on a more frequent
basis. The Board reserves the right to reject any purchase of Interests in the
Fund or to repurchase all of the Interest held by a Member upon notice to such
Member.
Except as otherwise permitted by the Board, initial and subsequent purchases
of Interests will be payable in cash. Each initial or subsequent purchase of
Interests will be payable in one installment and will be due at least two
business days prior to the proposed acceptance of the purchase, although the
Board may accept, in its discretion, purchases prior to its receipt of cleared
funds.
By purchasing an Interest in the Fund, each new Member will be bound by all of
the terms of the Operating Agreement. Each prospective investor will also be
required to represent and warrant in a subscription agreement, among other
things, that the Investor is purchasing an Interest for its own account, and
not with a new to the distribution, assignment, transfer, or other disposition
of the Interest. The Fund has the sole right to accept subscriptions for
Interests and reserves the right to reject any subscription in whole or in
part.
Pending investment in the Fund, the proceeds of the continuous offering will
be placed in an interest-bearing escrow account by PFPC, the Fund's escrow
agent. After any closing, the balance in the escrow account, including any
interest earned, will be invested pursuant to the Fund's investment policies.
40
REPURCHASES OF INTERESTS
No Right of Redemption
No Member will have the right to require the Fund to redeem its Interest. No
public market exists for the Interests, and none is expected to develop.
Consequently, Members will not be able to liquidate their investment other
than as a result of repurchases of Interests by the Fund, as described below.
Repurchases of Interests
The Board of the Fund, from time to time and in its complete and absolute
discretion, may determine to cause the Fund to offer to repurchase Interests
from Members, including affiliates of the Adviser, pursuant to written
requests by Members on such terms and conditions as it may determine. In
determining whether the Fund should offer to repurchase Interests from Members
pursuant to written requests, the Board will consider, among other things, the
recommendation of the Adviser. The repurchase amount will be determined by the
Board in its complete and absolute discretion, and such repurchase amount may
be a portion of the Fund's outstanding Interests. The Board expects that the
Fund will offer to repurchase Interests from Members as of March 31, 2005,
and, thereafter, twice a year, as of the last business day of March and
September. As used in this Prospectus, a "business day" is any day, other than
Saturday, Sunday, or a day on which banking institutions are authorized or
obliged by law or regulation to close in New York. The Board of the Fund also
will consider the following factors, among others, in making such
determination: (i) whether any Members have requested that the Fund repurchase
Interests; (ii) the liquidity of the Fund's assets; (iii) the investment plans
and working capital requirements of the Fund; (iv) the relative economies of
scale with respect to the size of the Fund; (v) the history of the Fund in
repurchasing Interests; (vi) the economic condition of the securities markets;
and (vii) the anticipated tax consequences of any proposed repurchases of
Interests.
The Fund's assets consist primarily of its interest in the Master Fund (held
through its investment in the Offshore Fund). Accordingly, the Fund will be
required to liquidate a portion of its interest in the Master Fund in order to
fund repurchases. In order to liquidate its interest in the Master Fund, the
Offshore Fund (which is effectively controlled by the Fund's Board) must
accept repurchase offers made by the Master Fund and distribute the proceeds
of such repurchases to the Fund. The Fund will not conduct repurchase offers
unless the Master Fund simultaneously conducts a repurchase offer for the
Master Fund's interests. The Board of the Master Fund expects that the Master
Fund will conduct repurchase offers as of March 31, 2005, and, thereafter,
twice a year, as of the last business day of March and September. However,
there are no assurances that the Board of the Master Fund will determine to
make such an offer. The Fund cannot make a repurchase offer larger than the
repurchase offer made by the Master Fund. The Master Fund will make repurchase
offers, if any, to all of its investors, including the Fund (via the Offshore
Fund), on the same terms, which may affect the size of the Master Fund's
offers. Subject to the Master Fund's restrictions on borrowings, the Master
Fund may borrow money or issue debt obligations to finance its repurchase
obligations pursuant to any such repurchase offer.
The Operating Agreement provides that the Fund will be dissolved if any Member
that has submitted a written request, in accordance with the terms of the
Operating Agreement, to tender all of such Member's Interest for repurchase by
the Fund has not been given the opportunity to so tender within a period of
two years after the request (whether in a single repurchase offer or multiple
consecutive offers within the two-year period). A Member who intends to cause
the Fund to be dissolved must so indicate in a separate written request
submitted within the applicable two-year period.
The Board will determine that the Fund will offer to repurchase Interests
pursuant to written requests only on terms that the Board determines to be
fair to the Fund and Members. When the Board determines that the Fund will
offer to repurchase Interests, written notice will be provided to Members that
describes the commencement date of the repurchase offer, specifies the date on
which repurchase requests must be received by the Fund (the "Repurchase
Request Date"), and contains other information Members should consider in
deciding whether and how to participate in such repurchase opportunity. The
Repurchase Request Date will be a date set by the Board occurring no sooner
than 20 business days after the commencement date of the repurchase offer and
such Repurchase Request Date may be extended by the Board in its absolute
discretion. The Fund will not accept any repurchase request received by it or
its designated agent after the Repurchase Request Date.
41
Due to liquidity constraints associated with the Master Fund's investments in
Investment Funds and the fact that the Fund will have to effect withdrawals
from the Master Fund (via the Offshore Fund) to pay for Interests being
repurchased, and, in turn, the Master Fund will have to effect withdrawals
from Investment Funds in order to finance such withdrawal, it is presently
expected that, under the procedures applicable to the repurchase of Interests,
Interests will be valued for purposes of determining their repurchase price as
of a date approximately one month after the Repurchase Request Date (the
"Repurchase Valuation Date"). The amount that a Member may expect to receive
on the repurchase of the Member's Interest (or portion thereof) will be the
value of the Member's Capital Account (or portion thereof being repurchased)
determined on the Repurchase Valuation Date and based on the net asset value
of the Fund's assets (based in part on oral or written estimates of the value
of the Master Fund's investments received from Investment Funds) as of that
date, after giving effect to all allocations to be made as of that date to the
Member's Capital Account. Therefore, such repurchase payments may not reflect
final net asset values for the Repurchase Valuation Date calculated by the
Investment Funds; however, the Fund will generally not make any adjustments
for final valuations from the Master Fund based on adjustments received from
the Investment Funds and the withdrawing Member (if such valuations are
adjusted upwards) or the remaining Members (if such valuations are adjusted
downwards) will bear the risk of change of any such valuations.
The value of Interests or portions thereof being repurchased will be
determined on the Repurchase Valuation Date, which will be approximately one
month after the Repurchase Request Date. Within five days of the Repurchase
Request Date, each Member whose Interest or portion thereof has been accepted
for repurchase will be given a non-interest bearing, non-transferable
promissory note by the Fund entitling the Member to be paid an amount equal to
100% of the unaudited net asset value such Member's Capital Account (or
portion thereof) being repurchased, determined as of the Repurchase Valuation
Date (after giving effect to all allocations to be made as of that date to
such Member's Capital Account). The note will entitle the Member to be paid
within thirty days after the Repurchase Valuation Date, or, if the Fund has
requested withdrawals of its capital from any Investment Funds in order to
fund the repurchase of Interests, ten business days after the Fund has
received at least 90% of the aggregate amount withdrawn by the Fund from such
Investment Funds, whichever is later (either such date, a "Payment Date").
Notwithstanding the foregoing, if a Member has requested the repurchase of 90%
or more of the Interest held by such Member, such Member shall receive (i)
cash or a non-interest bearing, non-transferable promissory note, which need
not bear interest, in an amount equal to 90% of the estimated unaudited net
asset value of such Member's Capital Account (or portion thereof) being
repurchased, determined as of the Repurchase Valuation Date (after giving
effect to all allocations to be made as of that date to such Member's Capital
Account) (the "Initial Payment"), which will be paid on or prior to the
Payment Date; and (ii) a promissory note entitling the holder thereof to the
balance of the proceeds, to be paid following the later of (x) 90 days
following the applicable Repurchase Valuation Date, so as to effectuate the
orderly liquidation of enough Investment Funds in which the Fund is invested
or otherwise, or (y) such longer period as the Board of Directors in its
discretion deems necessary to protect the interests of the remaining Members.
The Board in its discretion may also pay repurchase proceeds, in whole or in
part, in securities of equivalent value. The Fund does not expect that it will
distribute securities as payment for repurchased Interests except in unusual
circumstances, such as in the unlikely event that (i) making a cash payment
would result in a material adverse effect on the Fund or on Members not
requesting that their Interests be repurchased or (ii) that the Fund has
received distributions from Investment Funds in the form of securities that
are transferable to the Members. In the event that the Fund makes such a
distribution of securities as payment for Interests, Members will bear any
risks of the distributed securities and may be required to pay a brokerage
commission or other costs in order to dispose of such securities.
Under these procedures, Members will have to decide whether to request that
the Fund repurchase their Interests, without the benefit of having current
information regarding the value of Interests on a date proximate to the
Repurchase Valuation Date. In addition, there will be a substantial period of
time between the Repurchase Request Date and the date they can expect to
receive payment for their Interests from the Fund. As noted above, Members
whose Interests are accepted for repurchase will bear the risk that the Fund's
net asset value may fluctuate significantly between the Repurchase Request
Date and the Repurchase Valuation Date. This period of time is intended, in
part, to assist the Fund in paying the amount due to Members on the Payment
Date. The Fund's schedule with respect to repurchases of Interests will be
based on operational considerations and various factors relating to the best
interests of Members, including, but not limited to, the intent that the Fund
pay Members their repurchase proceeds, to the extent practicable, based on
redemption proceeds received by the Fund from Investment
42
Funds and to minimize the need for the Fund to maintain cash or borrow money
to meet repurchase requests. Payments for repurchased Interests may be further
delayed under circumstances where the Fund has determined to redeem its
Interests in Investment Funds to make such payments, but has experienced
unusual delays in receiving payments from the Investment Funds.
The Fund may suspend or postpone a repurchase offer in limited circumstances,
and only by a vote of a majority of the Board, including a majority of the
Independent Directors. These circumstances may include the following: (i) for
any period during which an emergency exists as a result of which it is not
reasonably practicable for the Fund to dispose of securities it owns or to
determine the value of the Fund's net assets; (ii) for any other periods that
the SEC permits by order for the protection of Members; or (iii) other unusual
circumstances as the Board deems advisable to the Fund and its Members.
If Members request that the Fund repurchase a greater number of Interests than
the repurchase offer amount as of the Repurchase Request Date, as determined
by the Board in its complete and absolute discretion, the Fund may repurchase
an additional amount of Interests not to exceed 2% of the Interests
outstanding on the Repurchase Request Date. If the Board determines not to
repurchase more than the repurchase offer amount or if Members request that
the Fund repurchase Interests in an amount exceeding the repurchase offer
amount plus 2% of the Interests outstanding on the Repurchase Request Date,
the Fund shall repurchase the Interests pursuant to repurchase requests on a
pro rata basis, disregarding fractions, according to the amount of Interests
requested by each Member to be repurchased as of the Repurchase Request Date.
Payment for repurchased Interests will require the Fund to withdraw from the
Offshore Fund, and the Offshore Fund from the Master Fund, which in turn may
be required to liquidate its holdings in Investment Funds, earlier than the
Adviser otherwise would liquidate such holdings, potentially resulting in
losses, and may increase the Master Fund's portfolio turnover. The Adviser
intends to take measures to attempt to avoid or minimize such potential losses
and turnover. The Master Fund may maintain cash or borrow money to meet
repurchase requests, which would increase the Master Fund's operating expenses
and would adversely impact the ability of the Fund to achieve its investment
objective.
The repurchase of Interests is subject to regulatory requirements imposed by
the SEC. The Fund's and the Master Fund's repurchase procedures are intended
to comply with such requirements. However, in the event that the Board
determines that modification of these repurchase procedures is required or
appropriate, the Board will adopt revised repurchase procedures as necessary
to ensure the Fund's compliance with applicable regulations or as the Board in
its sole discretion deems appropriate.
The Fund does not presently intend to impose any charges on the repurchase of
Interests, although the Fund may allocate to Members whose interests are
repurchased withdrawal or similar charges imposed by Investment Funds if the
Adviser determines to withdraw from one or more Investment Funds as a result
of Member repurchase requests and such charges are imposed on the Master Fund.
A Member who tenders some but not all of the Member's Interest for repurchase
will be required to maintain a minimum Capital Account balance of $25,000. The
Fund reserves the right to reduce the amount to be repurchased from a Member
so that the required Capital Account balance is maintained.
In accordance with the terms and conditions of the Fund's Operating Agreement,
the Fund may cause a mandatory redemption of all or a portion the Interest of
a Member or any person acquiring an Interest from or through a Member if the
Board or, on behalf of the Board, the Adviser determines or has reason to
believe that, among other things: (i) all or part of the Member's Interest has
been transferred, or the Interest has vested in any person, by operation of
law as a result of the death, dissolution, bankruptcy, or incompetency of a
Member; (ii) ownership of an Interest by such Member or other person will
cause the Fund to be in violation of, or subject the Fund or the Adviser to
additional registration or regulation under the securities, commodities, or
other laws of the United States or any other relevant jurisdiction; (iii)
continued ownership of such Interest may be harmful or injurious to the
business or reputation of the Fund or the Adviser, or may subject the Fund or
any Members to an undue risk of adverse tax or other fiscal consequences; (iv)
any representation or warranty made by a Member in connection with the
acquisition of its Interest was not true when made or has ceased to be true;
or (v) it would be in the best interests of the Fund for the Fund to cause a
mandatory redemption of such Interest. Members whose Interests are redeemed by
the Fund
43
will not be entitled to a return of any amount of sales load that was charged
in connection with the Member's purchase of an Interest.
TRANSFERS OF INTERESTS
No person will become a substituted Member without the consent of the Board,
which consent may be withheld in its sole and absolute discretion. Interests
held by Members may be transferred only (i) by operation of law pursuant to
the death, divorce, bankruptcy, insolvency, or dissolution of a Member or (ii)
under extremely limited circumstances, with the written consent of the Board
(which may be withheld in its sole and absolute discretion). The Board
generally will not consider consenting to a transfer unless the transfer is
(i) one in which the tax basis of the Interest in the hands of the transferee
is determined, in whole or in part, by reference to its tax basis in the hands
of the transferring Member (e.g., certain gifts and contributions to family
entities), or (ii) to members of the transferring Member's immediate family
(siblings, spouse, parents, and children). Notice to the Fund of any proposed
transfer must include evidence satisfactory to the Board that the proposed
transferee, at the time of transfer, meets any requirements imposed by the
Fund with respect to investor eligibility and suitability. See "Eligible
Investors." The Board may not consent to a transfer of an Interest by a Member
unless such transfer is to a single transferee or after the transfer of the
Interest, the balance of the Capital Account of each of the transferee and
transferor is not less than $25,000. Each transferring Member and transferee
must agree to pay all expenses, including, but not limited to, attorneys' and
accountants' fees, incurred by the Fund in connection with the transfer. If a
Member transfers an Interest with the approval of the Board, the Fund will
promptly take all necessary actions so that each transferee or successor to
whom the Interest is transferred is admitted to the Fund as a Member.
By subscribing for an Interest, each Member agrees to indemnify and hold
harmless the Fund, the Board, the Adviser, or each other Member, and any
affiliate of the foregoing against all losses, claims, damages, liabilities,
costs, and expenses (including legal or other expenses incurred in
investigating or defending against any losses, claims, damages, liabilities,
costs, and expenses or any judgments, fines, and amounts paid in settlement),
joint or several, to which such persons may become subject by reason of or
arising from any transfer made by that Member in violation of the Operating
Agreement or any misrepresentation made by that Member in connection with any
such transfer.
NET ASSET VALUATION
The Fund and the Offshore Fund will compute net asset value as of the last
business day of each fiscal period (as defined in "Capital Accounts and
Allocations"). In determining its net asset value, the Fund and the Offshore
Fund will value their investments as of such fiscal period end. The net asset
value of the Fund and the Offshore Fund will equal the value of the assets of
the Fund and the Offshore Fund, respectively, less all of each entity's
liabilities, including accrued fees and expenses. It is expected that the
assets of the Fund will consist of its interest in the Offshore Fund. In
computing its net asset value, the Fund will value its interest in the
Offshore Fund at the value of the Offshore Fund's interest in the Master Fund,
and the Offshore Fund will value its interest in the Master Fund at the net
asset value provided by the Master Fund to the Offshore Fund and the Fund.
The net asset value of the Master Fund will equal the value of the total
assets of the Master Fund, less all of its liabilities, including accrued fees
and expenses. The Board has approved procedures pursuant to which the Master
Fund will value its investments in Investment Funds at fair value. In
accordance with these procedures, fair value as of each month-end ordinarily
will be the value determined as of such month-end for each Investment Fund in
accordance with the Investment Fund's valuation policies and reported at the
time of the Master Fund's valuation. As a general matter, the fair value of
the Master Fund's interest in an Investment Fund will represent the amount
that the Master Fund could reasonably expect to receive from an Investment
Fund if the Master Fund's interest were redeemed at the time of valuation,
based on information reasonably available at the time the valuation is made
and that the Master Fund believes to be reliable. In the event that an
Investment Fund does not report a month-end value to the Master Fund on a
timely basis, the Master Fund will determine the fair value of such Investment
Fund based on the most recent final or estimated value reported by the
Investment Fund, as well any other relevant information available at the time
the Master Fund values its portfolio. Using the nomenclature of the hedge fund
industry, any values reported as "estimated" or "final" values will reasonably
reflect market values of securities for which market quotations are available
or fair value as of the Master Fund's valuation date.
44
Prior to investing in any Investment Fund, the Adviser will conduct a due
diligence review of the valuation methodology utilized by the Investment Fund,
which as a general matter will utilize market values when available, and
otherwise utilize principles of fair value that the Adviser reasonably
believes to be consistent with those used by the Master Fund for valuing its
own investments. Although the procedures approved by the Board provide that
the Adviser will review the valuations provided by the investment advisers to
the Investment Funds, neither the Adviser nor the Board will be able to
confirm independently the accuracy of valuations provided by such investment
advisers (which are unaudited).
The Master Fund's valuation procedures require the Adviser to consider all
relevant information available at the time the Master Fund values its
portfolio. The Adviser and/or the Board will consider such information, and
may conclude in certain circumstances that the information provided by the
investment adviser of an Investment Fund does not represent the fair value of
the Master Fund's interests in the Investment Fund. Although redemptions of
interests in Investment Funds are subject to advance notice requirements,
Investment Funds will typically make available net asset value information to
holders which will represent the price at which, even in the absence of
redemption activity, the Investment Fund would have effected a redemption if
any such requests had been timely made or if, in accordance with the terms of
the Investment Fund's governing documents, it would be necessary to effect a
mandatory redemption. Following procedures adopted by the Board, in the
absence of specific transaction activity in interests in a particular
Investment Fund, the Master Fund would consider whether it was appropriate, in
light of all relevant circumstances, to value such a position at its net asset
value as reported at the time of valuation, or whether to adjust such value to
reflect a premium or discount to net asset value. In accordance with generally
accepted accounting principles and industry practice, the Master Fund may not
always apply a discount in cases where there was no contemporaneous redemption
activity in a particular Investment Fund. In other cases, as when an
Investment Fund imposes extraordinary restrictions on redemptions, or when
there have been no recent transactions in Investment Fund interests, the
Master Fund may determine (but is not required to) that it was appropriate to
apply a discount to the net asset value of the Investment Fund. Any such
decision would be made in good faith, and subject to the review and
supervision of the Board.
The valuations reported by the investment advisers of the Investment Funds,
upon which the Master Fund calculates its month-end net asset value, may be
subject to later adjustment, based on information reasonably available at that
time. For example, fiscal year-end net asset value calculations of the
Investment Funds are audited by their independent auditors and may be revised
as a result of such audits. Other adjustments may occur from time to time.
Because such adjustments or revisions, whether increasing or decreasing the
net asset value of the Master Fund at the time they occur, relate to
information available only at the time of the adjustment or revision, the
adjustments or revisions will not affect the amount of the repurchase proceeds
of the Master Fund received by Members who had their Interests repurchased
prior to such adjustments and received their repurchase proceeds. As a result,
to the extent that such subsequently adjusted valuations from the investment
advisers or revisions to net asset value of an Investment Fund adversely
affect the Master Fund's net asset value, the outstanding Interests will be
adversely affected by prior repurchases to the benefit of Members who had
their Interests repurchased at a net asset value higher than the adjusted
amount. Conversely, any increases in the net asset value resulting from such
subsequently adjusted valuations will be entirely for the benefit of the
outstanding Interests and to the detriment of Members who previously had their
Interests repurchased at a net asset value lower than the adjusted amount. The
same principles will apply to the purchase of Interests. New Members may be
affected in a similar way.
The procedures approved by the Board provide that, where deemed appropriate by
the Adviser and consistent with the 1940 Act, investments in Investment Funds
may be valued at cost. Cost would be used only when cost is determined to best
approximate the fair value of the particular security under consideration. For
example, cost may not be appropriate when the Master Fund is aware of sales of
similar securities to third parties at materially different prices or in other
circumstances where cost may not approximate fair value (which could include
situations where there are no sales to third parties). In such a situation,
the Master Fund's investment will be revalued in a manner that the Adviser, in
accordance with procedures approved by the Board, determines in good faith
best reflects approximate market value. The Board will be responsible for
ensuring that the valuation policies utilized by the Adviser are fair to the
Master Fund and consistent with applicable regulatory guidelines.
To the extent the Adviser will invest the assets of the Master Fund in
securities or other instruments that are not investments in Investment Funds,
the Master Fund will generally value such assets as described below.
Securities traded on one or more of the U.S. national securities exchanges or
the OTC Bulletin Board will be valued at their
45
last composite sale prices as reported at the close of trading on the
exchanges or markets where such securities are traded for the business day as
of which such value is being determined. Securities traded on the NASDAQ stock
market will be valued at the NASDAQ Official Closing Price. Securities traded
on a foreign securities exchange will generally be valued at their last sale
prices on the exchange where such securities are primarily traded. If no sales
of particular securities are reported on a particular day, the securities will
be valued based on their composite bid prices for securities held long, or
their composite ask prices for securities held short, as reported by the
appropriate exchange, dealer, or pricing service. Redeemable securities issued
by a registered open-end investment company will be valued at the investment
company's net asset value per share. Other securities for which market
quotations are readily available will generally be valued at their bid prices,
or ask prices in the case of securities held short, as obtained from the
appropriate exchange, dealer, or pricing service. If market quotations are not
readily available, securities and other assets will be valued at fair value as
determined in good faith in accordance with procedures approved by the Board.
In general, fair value represents a good faith approximation of the current
value of an asset and will be used when there is no public market or possibly
no market at all for the asset. The fair values of one or more assets may not
be the prices at which those assets are ultimately sold. In such
circumstances, the Adviser and/or the Board will reevaluate its fair value
methodology to determine, what, if any, adjustments should be made to the
methodology.
Debt securities will be valued in accordance with the Master Fund's valuation
procedures, which generally provide for using a third-party pricing system,
agent, or dealer selected by the Adviser, which may include the use of
valuations furnished by a pricing service that employs a matrix to determine
valuations for normal institutional size trading units. The Board will monitor
periodically the reasonableness of valuations provided by any such pricing
service. Debt securities with remaining maturities of 60 days or less, absent
unusual circumstances, will be valued at amortized cost, so long as such
valuations are determined by the Board to represent fair value.
Assets and liabilities initially expressed in foreign currencies will be
converted into U.S. dollars using foreign exchange rates provided by a pricing
service. Trading in foreign securities generally is completed, and the values
of such securities are determined, prior to the close of securities markets in
the United States. Foreign exchange rates are also determined prior to such
close. On occasion, the values of securities and exchange rates may be
affected by events occurring between the time as of which determination of
such values or exchange rates are made and the time as of which the net asset
value of the Master Fund is determined. When such events materially affect the
values of securities held by the Master Fund or its liabilities, such
securities and liabilities may be valued at fair value as determined in good
faith in accordance with procedures approved by the Board.
The Adviser or its affiliates act as investment adviser to other clients that
may invest in securities for which no public market price exists. Valuation
determinations by the Adviser or its affiliates for other clients may result
in different values than those ascribed to the same security owned by the
Master Fund. Consequently, the fees charged to the Master Fund and other
clients may be different, since the method of calculating the fees takes the
value of all assets, including assets carried at different valuations, into
consideration.
Expenses of the Fund and the Master Fund (including the Adviser's Investment
Management Fee) and the costs of any borrowings, will be accrued on a monthly
basis on the day net asset value is calculated and taken into account for the
purpose of determining net asset value.
Prospective investors should be aware that situations involving uncertainties
as to the value of portfolio positions could have an adverse effect on the
Master Fund's net asset value if the judgments of the Board, the Adviser, or
investment advisers to the Investment Funds should prove incorrect. Also,
investment advisers to the Investment Funds will only provide determinations
of the net asset value of Investment Funds on a weekly or monthly basis, in
which event it will not be possible to determine the net asset value of the
Master Fund or the Fund more frequently.
46
CAPITAL ACCOUNTS AND ALLOCATIONS
Capital Accounts
The Fund will maintain a separate Capital Account for each Member (including
the Adviser in respect of its Incentive Allocation and the Adviser or its
affiliates in respect of any capital contribution to the Fund by the Adviser
or an affiliate, as a Member), which will have an opening balance equal to the
Member's initial contribution to the capital of the Fund. Each Member's
Capital Account (other than the Capital Account of the Adviser in respect of
its Incentive Allocation) will be increased by the sum of the amount of cash
and the value of any securities constituting additional contributions by the
Member to the capital of the Fund, plus any amounts credited to the Member's
Capital Account as described below. Similarly, each Member's Capital Account
will be reduced by the sum of the amount of any repurchase by the Fund of the
Interest of the Member, plus the amount of any distributions to the Member
that are not reinvested, plus any amounts debited against the Member's Capital
Account as described below.
Capital Accounts of Members will be adjusted as of the close of business on
the last day of each fiscal period. Fiscal periods will begin on the day after
the last day of the preceding fiscal period and end at the close of business
on the first to occur of the following: (i) the last day of a fiscal year;
(ii) the day preceding any day on which a contribution to the capital of the
Fund is made; (iii) any day on which the Fund repurchases any Interest of any
Member; (iv) any day in which there is any distribution to a Member; (v) any
day on which any amount is credited to or debited against the Capital Account
of any Member other than an amount to be credited to or debited against the
Capital Accounts of all Members in accordance with their respective investment
percentages; or (vi) any other date as established by the Board. An investment
percentage will be determined for each Member as of the start of each fiscal
period by dividing the balance of the Member's Capital Account as of the
commencement of the period by the sum of the balances of all Capital Accounts
of all Members as of that date, after giving effect to additional
contributions as of that date.
The Fund, in its complete and absolute discretion, may authorize the division
or combination of the Interests into a greater or lesser number without
thereby materially changing the value of a Member's Capital Account.
Allocation of Net Profits and Net Losses
Net profits or net losses of the Fund for each fiscal period will be allocated
among and credited to or debited against the Capital Accounts of all Members
as of the last day of the fiscal period in accordance with Members' respective
investment percentages for such fiscal period. The Incentive Allocation will
be allocated separately to the Adviser from each Member's Capital Account
based on its share of net profit as of the end of each Performance Period. Net
profits or net losses will be measured as the change in the net asset value of
the Fund (including any net change in unrealized appreciation or depreciation
of investments and realized income and gains or losses and accrued expenses
and any withholding or other taxes applicable to the Offshore Fund), before
giving effect to any repurchase by the Fund of Interests, and excluding the
amount of any items to be allocated among the Capital Accounts of the Members
other than in accordance with the Members' respective investment percentages.
Allocations for Federal income tax purposes generally will be made among the
Members so as to reflect equitably amounts credited or debited to each
Member's Capital Account for the current and prior fiscal years.
Withholding taxes or other tax obligations incurred by the Member that are
attributable to any Member will be debited against the Capital Account of that
Member as of the close of the fiscal period during which the Fund paid those
obligations, and any amounts then or thereafter distributable to the Member
will be reduced by the amount of those taxes. If the amount of those taxes is
greater than the distributable amounts, then the Member and any successor to
the Member's Interest is required to pay upon demand to the Fund, as a
contribution to the capital of the Fund, the amount of the excess. The Fund is
not obligated to apply for or obtain a reduction of or exemption from
withholding tax on behalf of any Member, although in the event that the Fund
determines that a Member is eligible for a refund of any withholding tax, it
may, at the request and expense of that Member, assist the Member in applying
for the refund.
47
Reserves
Appropriate reserves may be created, accrued, and charged against net assets
and proportionately against the Capital Accounts of the Members for contingent
liabilities as of the date the contingent liabilities become known to the
Fund. Reserves will be in such amounts (subject to increase or reduction) that
the Fund may deem necessary or appropriate.
TAXES
The following is a summary of certain aspects of the income taxation of the
Fund and its Members that should be considered by a prospective Member. The
Fund has not sought a ruling from the Internal Revenue Service (the "IRS") or
any other federal, state, or local agency with respect to any of the tax
issues affecting the Fund, nor will it obtain an opinion of counsel with
respect to any tax issues, except as described below.
This summary of certain aspects of the federal income tax treatment of the
Fund is based upon the Code, judicial decisions, Treasury Regulations (the
"Regulations"), and rulings in existence on the date hereof, all of which are
subject to change. This summary does not attempt to discuss all the federal
income tax consequences of such an investment. Prospective Members should not
consider the contents of this Memorandum as legal or tax advice.
EACH PROSPECTIVE MEMBER SHOULD CONSULT WITH ITS OWN TAX ADVISER IN ORDER TO
UNDERSTAND FULLY THE FEDERAL, STATE, LOCAL, AND FOREIGN INCOME TAX
CONSEQUENCES OF AN INVESTMENT IN THE FUND.
In addition to the particular matters set forth in this section, tax-exempt
organizations should review carefully those sections of the Memorandum
regarding liquidity and other financial matters to ascertain whether the
investment objectives of the Fund are consistent with their overall investment
plans. Each prospective tax-exempt Member is urged to consult with its own
counsel regarding the acquisition of an Interest. See "Investment by Qualified
Retirement Plans and Other Tax-Exempt Investors" below and also "Investment by
Employee Benefit Plans."
Classification of the Fund and the Master Fund
The Fund and the Master Fund have each received an opinion of Sidley Austin
Brown & Wood LLP, counsel to the Fund and the Master Fund, that, under the
provisions of the Code and the Regulations, as in effect on the date of the
opinion, as well as under the relevant authority interpreting the Code and the
Regulations, and based upon certain assumptions and representations of the
Fund and the Master Fund, the Fund and the Master Fund will be treated as a
partnership for Federal income tax purposes and not as an association taxable
as a corporation.
Under Section 7704 of the Code, "publicly traded partnerships" are generally
treated as corporations for Federal income tax purposes. A publicly traded
partnership is any partnership the interests in which are traded on an
established securities market or which are readily tradable on a secondary
market (or the substantial equivalent thereof). Interests in the Fund and the
Master Fund will not be traded on an established securities market.
Regulations concerning the classification of partnerships as publicly traded
partnerships (the "Section 7704 Regulations") provide certain safe harbors
under which interests in a partnership will not be considered readily tradable
on a secondary market (or the substantial equivalent thereof). The Fund and/or
the Master Fund may not be eligible for any of those safe harbors. The Section
7704 Regulations specifically provide that the fact that a partnership does
not qualify for the safe harbors is disregarded for purposes of determining
whether interests in a partnership are readily tradable on a secondary market
(or the substantial equivalent thereof). Rather, in this event the
partnership's status is examined under a general facts and circumstances test.
Sidley Austin Brown & Wood LLP has also rendered its opinion that, under this
"facts and circumstances" test, and based upon the anticipated operations of
the Fund and the Master Fund as well as the legislative history to Section
7704, the text of the Section 7704 Regulations, and certain representations of
the Fund and the Master Fund, that the Interests in the Fund and the Master
Fund will not be readily tradable on a secondary market (or the substantial
equivalent thereof) and, therefore, that neither the Fund nor the Master Fund
will be treated as a publicly traded partnership taxable as a corporation.
48
Neither of the opinions of counsel described above, however, is binding on the
IRS or the courts. If it were determined that the Fund or the Master Fund
should be treated as an association or a publicly traded partnership taxable
as a corporation for Federal income tax purposes (as a result of a successful
challenge to such opinions by the IRS, changes in the Code, the Regulations,
or judicial interpretations thereof, a material adverse change in facts, or
otherwise), the taxable income of the Fund or the Master Fund would be subject
to corporate income tax when recognized by the Fund or the Master Fund. In
addition, distributions of such income, other than in certain repurchases of
Interests, would be treated as dividend income when received by the Members to
the extent of the current or accumulated earnings and profits of the Fund.
Classification of the Offshore Fund
The tax status of the Offshore Fund and its shareholders under the tax laws of
the Cayman Islands and the United States is summarized below. The summary is
based on the assumption that the Offshore Fund is owned, managed, and operated
as contemplated, and on the assumption that shares of the Offshore Fund will
be held by the Fund and that Interests of the Fund will be held by tax-exempt
investors. The summary is considered to be a correct interpretation of
existing laws as applied on the date of this Prospectus but no representation
is made or intended by the Offshore Fund (i) that changes in such laws or
their application or interpretation will not be made in the future or (ii)
that the IRS will agree with the interpretation described below as applied to
the method of operating the Offshore Fund. Prospective investors should
consult their own tax and legal advisers with respect to the tax consequences,
including the income tax consequences, of the purchase, holding, redemption,
sale, or transfer of Interests.
The Offshore Fund will be classified as an association taxable as a
corporation for U.S. Federal income tax purposes.
The Offshore Fund generally will not be subject to taxation by the United
States on income or gain realized by the Master Fund from its stock,
securities, commodities, or derivatives trading for a taxable year, provided
that the Offshore Fund is not engaged or deemed to be engaged in a U.S. trade
or business during a taxable year to which such income, gain, or loss of the
Master Fund is treated as effectively connected. An investment in the Master
Fund should not, by itself, cause the Offshore Fund to be engaged in a U.S.
trade or business for the foregoing purposes, so long as (i) the Master Fund
is not considered a dealer in stock, securities, or commodities and does not
regularly offer to enter into, assume, offset, assign, or otherwise terminate
positions in derivatives with customers, (ii) the U.S. business activities of
the Master Fund consist solely of trading in stock, securities, commodities,
and derivatives for its own account (and, in the case of commodities, is
limited to trading in commodities of a kind customarily dealt in on an
organized exchange in transactions of a kind customarily consummated at such
place), and (iii) any entity treated as a partnership for U.S. federal income
tax purposes in which the Master Fund invests is not deemed to be engaged in a
U.S. trade or business.
With respect to (iii) above, the Offshore Fund has no control over whether the
entities treated as partnerships for U.S. federal income tax purposes in which
the Master Fund invests are engaged or deemed to be engaged in a U.S. trade or
business. However, the Master Fund intends to use reasonable efforts to reduce
or eliminate the extent to which it allocates investment assets to entities
treated as partnerships for U.S. federal income tax purposes that are engaged
or deemed to be engaged in a U.S. trade or business.
In the event that the Master Fund were found to be engaged in a U.S. trade or
business, the Offshore Fund would be required to file a U.S. federal income
tax return for such year on IRS Form 1120-F and pay tax at full U.S. rates on
the portion of its income that is treated as effectively connected with such
U.S. trade or business, and an additional 30% branch profits tax would be
imposed. In addition, in such event, the Master Fund would be required to
withhold taxes from the income or gain allocable to the Offshore Fund under
Section 1446 of the Code.
Even assuming the Master Fund meets such requirements, the Offshore Fund will
be subject to withholding of federal income tax at a 30% rate on its
respective share of the Master Fund's U.S. source dividend income, U.S. source
interest income (unless such interest income is either "portfolio interest" or
received by the Master Fund on U.S. bank deposits, certificates of deposit, or
discount obligations with maturities (from original issue) of 183 days or
less), and any other U.S. source fixed or determinable annual or periodic
gains, profits, or income. In general, "portfolio interest" is interest (other
than certain contingent interest) on an obligation issued after July 18, 1984
that (i) if in bearer form, is issued under arrangements reasonably designed
to ensure that such obligation will be sold
49
only to non-U.S. persons, is payable only outside the United States, and bears
a legend on its face that any U.S. person who holds such obligation is subject
to certain limitations under the U.S. income tax laws, or (ii) if in
registered form, the U.S. person responsible for paying interest received a
statement either from the beneficial owner of such obligation or from certain
qualifying agents of the beneficial owner of such obligation that such owner
is not a U.S. person. The Master Fund intends to provide such a statement as
required by applicable law to such U.S. persons and will obtain from the
Offshore Fund a statement documenting the Offshore Fund's foreign status on
IRS Form W-8BEN or its equivalent. The Master Fund will not qualify for the
portfolio interest exception with respect to a debt instrument issued by an
entity if the Master Fund owns 10% or more of the voting stock interest in or
capital and profits of such issuer.
The Offshore Fund does not expect to maintain cash reserves, but generally
intends to invest any cash reserves that may exist in a manner so as not to be
subject to 30% withholding.
Taxation of Members
As an entity taxed as a partnership, the Fund is not itself subject to federal
income tax. The Fund will file an annual partnership information return with
the IRS that reports the results of operations. Each Member will be required
to report separately on its income tax return its share of the Fund's net
long-term capital gain or loss, net short-term capital gain or loss, and all
other items of ordinary income or loss. Each Member will be taxed on its share
of the Fund's taxable income and gain regardless of whether it has received or
will receive a distribution from the Fund. The Fund generally will have no
power to control the timing of cash distributions by the Investment Funds. In
addition, the Fund does not intend to make periodic distributions of its net
income or gains, if any, to Members. The amount and timing of any
distributions will be determined in the sole discretion of the Board.
Accordingly, a Member's share of taxable income from the Fund (as well as the
taxes imposed on that income) could exceed the distributions, if any, it
receives from the Fund. As a result, Members will be required each year to pay
any applicable federal and state taxes on their respective share of the Fund's
taxable income or gains (if the Fund has any such income or gains), and any
such taxes would have to paid by the Member from other sources. As discussed
below, Members will be furnished with a tax information report annually
stating each Member's respective share of the Fund's tax items.
Allocation of Profits and Losses
Under the Operating Agreement, the Fund's net profit or net loss for each
accounting period is allocated among the Members and to their Capital Accounts
without regard to the amount of income or loss actually recognized by the Fund
for Federal income tax purposes. It is expected that the Fund's income and
gains, if any, will be primarily derived from ordinary income.
The Operating Agreement provides that items of income, deduction, gain, loss,
or credit actually recognized by the Fund for each fiscal year generally are
to be allocated for income tax purposes among the Members pursuant to
Regulations issued under Section 704 of the Code, based upon amounts of the
Fund's net profit or net loss allocated to each Member's Capital Account for
the current and prior fiscal years.
Under the Operating Agreement, the Fund has the discretion to allocate
specially an amount of the Fund's capital gain and losses (including
short-term and long-term capital gain and losses) for Federal income tax
purposes: (i) to a withdrawing Member to the extent that the Member's Capital
Account differs from its Federal income tax basis in its partnership interest
or (ii) to the Adviser in its capacity as Special Advisory Member to the
extent that the receipt of an Incentive Allocation causes such Special
Advisory Member's Capital Account to differ from its Federal income tax basis
in its partnership interest. There can be no assurance that, if the Fund makes
any such special allocation, the IRS will accept such allocation. If such
allocation is successfully challenged by the IRS, the Fund's gains or losses
allocable to the remaining Members would be increased.
Distributions and Adjusted Basis
The receipt of a cash distribution from the Fund by a Member generally will
not result in the recognition of gain or loss for Federal income tax purposes.
Cash distributions in excess of a Member's adjusted tax basis for its interest
50
(including any distributions in connection with a repurchase of Interests)
will generally result in the recognition by such investor of gain in the
amount of such excess.
A Member's tax basis for its interest in the Fund will include the amount of
money the Member contributed to the Fund. A Member's tax basis will be
increased by the Member's respective share of the Fund's taxable income and
gains, and will be decreased by distributions from the Fund to the Member and
by the Member's respective share of any taxable losses.
Potential Foreign Investments
The Fund, the Master Fund, or the Investment Funds may make investments that
may involve additional foreign tax issues. The tax consequences to Members
depend in large part on the activities and investments of the Investment Funds
in which the Master Fund will invest, and such Investment Funds will not be
controlled by the Master Fund.
Fund Tax Returns and Tax Information
The Fund is required to use the accrual method of accounting and uses the
calendar year as its tax year for income tax purposes. Income or loss of an
Investment Fund that is taxed as a partnership using the calendar year or a
fiscal year other than the Fund's fiscal year will be treated as if
distributed to the Fund on the last day of the Investment Fund's fiscal year.
The Fund does not expect to receive tax information from Investment Funds
(through the Master Fund) in a sufficiently timely manner to enable the Fund
to prepare its information returns in time for Members to file their returns
without requesting an extension of the time to file from the IRS (or state
taxing agencies). Accordingly, Members should be prepared to obtain extensions
of time to file their income tax returns.
The investment advisers of the Investment Funds will not prepare income tax
information returns of the Investment Funds in which the Master Fund will
invest, which will be prepared by management and/or independent accountants
for each such Investment Fund. An audit of the Fund's or an Investment Fund's
information return may affect the tax consequences of an investment in the
Fund by a Member and may cause audits of the returns of the Member. The
activities of Investment Funds in which the Master Fund will invest may give
rise to additional tax issues, which in turn can affect the tax results of
Members in the Fund.
State and Local Taxes
In addition to the federal income tax consequences summarized above,
prospective investors should consider the potential state and local tax
consequences of an investment in the Fund. The Fund may become subject to
income and other taxes in states and localities based on the Fund's
activities, including investments in entities that conduct business in those
jurisdictions. Members of the Fund are generally taxable in their state of
residence on their share of the Fund's income. Members of the Fund may be
subject to tax in other jurisdictions depending on the Fund's activities
and/or activities of the Investment Funds in which the Master Fund will invest
and the laws of those jurisdictions. Additionally, Members of the Fund may be
entitled to a credit in their state of residence for taxes paid to other
jurisdictions.
Investment by Qualified Retirement Plans and Other Tax-Exempt Investors
Qualified pension and profit-sharing plans (including Keogh or HR-l0 Plans),
IRAs, educational institutions, and other investors exempt from taxation under
Code Section 501 are generally exempt from federal income tax except to the
extent that they have UBTI. UBTI is income from an unrelated trade or business
regularly carried on, excluding various types of investment such as dividends,
interest, certain rental income, and capital gain, so long as not derived from
debt-financed property. If a tax-exempt organization is a partner in a
partnership that generates UBTI, the UBTI of the partnership will pass through
to the organization. In addition, income derived from debt-financed property;
that is, property as to which there is "acquisition indebtedness" is UBTI.
Acquisition indebtedness is the unpaid amount of any debt incurred directly or
indirectly to acquire or improve the property. During the period that any
acquisition indebtedness is outstanding, a pro rata share of the income from
the property will generally be UBTI based on the ratio of the average
outstanding principal balance of such debt to the average basis of the
property during the applicable tax year. To the extent the Offshore Fund holds
debt-financed property
51
or property primarily for sale to customers or becomes actively involved in
trading securities, income attributable to such property or activity may
constitute UBTI. However, such UBTI should not be attributable to shareholders
of the Offshore Fund because the Offshore Fund is classified as a corporation,
and UBTI generally should not pass through or be deemed to pass through a
corporation to its U.S. tax-exempt investors.
Because all of the shares of the Offshore Fund will be held by the Fund, which
is a U.S. partnership for income tax purposes, the Offshore Fund will be
considered a controlled foreign corporation ("CFC") for U.S. income tax
purposes. Under current law applicable to U.S. tax-exempt entities, income
attributed from a CFC to a tax-exempt entity is taxable to a tax-exempt entity
only if the income attributed from the CFC is made taxable to the tax-exempt
entity under the Code and regulations relating to particular categories of
UBTI (for example, if the Offshore Fund were to generate certain insurance
income as defined in Section 512(b)(17) of the Code). The Offshore Fund does
not expect to generate UBTI of this type. The Fund has received an opinion of
Sidley Austin Brown & Wood LLP, counsel to the Fund, that under the provisions
of the Code and the Regulations, as in effect on the date of the opinion, as
well as under the relevant authority interpreting the Code and the
Regulations, and based upon certain representations of the Board, income of
the Fund allocable to tax-exempt investors (subject to certain exceptions)
should not constitute UBTI. The Fund has not sought a ruling from the Service
with respect to any of the tax issues affecting the Fund, but the Fund may
decide in the future to seek a ruling with respect to the question of whether
or not any income allocable to a tax-exempt investor in the Fund would be
UBTI. The foregoing discussion is intended to apply primarily to exempt
organizations that are qualified plans. The UBTI of certain other exempt
organizations may be computed in accordance with special rules. Further,
certain types of tax-exempt entities under the Code, such as "charitable
remainder trusts" that are required to make taxable distributions based upon
income received from all sources, may be disadvantaged under the rules
relating to CFCs in a manner similar to taxable investors. Charitable
remainder trusts are generally required, under their trust instruments and for
purposes of qualifying under the Code for tax exemption, to make current
distributions of all or a significant portion of their income. As an investor
in a CFC, such a trust would be deemed to receive income each year from the
CFC whether or not the CFC currently distributes such income. For these
reasons, the Fund would not be an appropriate investment for charitable
remainder trusts.
U.S. TAX-EXEMPT INVESTORS ARE STRONGLY URGED TO CONSULT THEIR OWN TAX ADVISORS
CONCERNING THE U.S. TAX CONSEQUENCES TO THEM OF ANY INVESTMENT IN THE FUND,
INCLUDING THE POSSIBLE APPLICATION OF SECTION 269 OF THE CODE (OR OTHER
ANTI-TAX AVOIDANCE PROVISIONS).
Tax Shelter Regulations
The IRS has recently issued final regulations (the "Regulations") that may
require the Fund or Members to report their direct or indirect participation
in certain "reportable transactions" by filing IRS Form 8886 ("Reportable
Transaction Disclosure Statement").
A "reportable transaction" includes a transaction that results in a loss
claimed under Section 165 of the Code by a taxpayer (computed without taking
into account offsetting income or gain items, and without regard to
limitations on its deductibility) in excess of the thresholds described below,
unless the transaction has been exempted from reporting by the IRS. Disclosure
is required if the Fund incurs losses of at least $2 million in any single
taxable year or $4 million for the taxable year the transaction is entered
into and the five succeeding taxable years. Members that are individuals, S
corporations, or trusts similarly are required to disclose transactions if
they individually incur losses which are equal to the same thresholds. Note,
however, that the annual threshold applicable to losses from a "section 988
transaction" (relating to foreign currency transactions) allocable to a Member
that is an individual or trust is reduced to $50,000. For Members that are C
corporations the thresholds generally will be losses of at least $10 million
in any single taxable year or $20 million for the taxable year the transaction
is entered into and the five succeeding taxable years.
Published guidance from the IRS has exempted certain loss transactions from
the reporting requirements. A transaction will be exempt if the assets
underlying the transaction have a "qualifying basis," which includes, among
others, an asset purchased for cash; provided however that each of the
following remains subject to reporting requirements unless the loss generated
in the transaction arises from mark to market treatment under the Code: (i) a
transaction involving an asset that is, or was, part of a straddle (other than
a mixed straddle), (ii) a transaction
52
involving certain "stripped" instruments, (iii) the disposition of an interest
in a pass-through entity (such as an Investment Fund), and (iv) a foreign
currency transaction which generates an ordinary loss.
The Regulations describe several other categories of "reportable transactions"
in addition to the transactions described above, including a transaction with
a significant book-tax difference. This is applicable to the taxpayer which is
a business entity with gross assets of $250 million or more or a reporting
entity under the Exchange Act. Generally, a transaction with a significant
book-tax difference is one where such a taxpayer's treatment for U.S. federal
income tax purposes of one or more items from the transaction differs by more
than $10 million on a gross basis from its treatment of the item(s) for book
purposes in any taxable year. Note, however, that the IRS has published
guidance exempting book-tax differences that occur solely because the taxpayer
marks to market its positions for book purposes but not for tax purposes.
At this time the Fund cannot predict whether any of its investments will
require it or any of the Members to file a Reportable Transaction Disclosure
Statement. If the Fund later determines that one or more investments require
Members to file a Reportable Transaction Disclosure Statement, the Fund will
provide each Member with the information required to complete and file the
form. In addition, if the Fund participates in a transaction that requires
reporting to the IRS, the Fund is required to maintain certain information
including a list of Members and a detailed description of the Fund, its
activities and the expected U.S. federal income tax consequences to Members.
This information must be available to the IRS for inspection upon its written
request. The Fund does not anticipate registering with the IRS as a tax
shelter.
Other Taxes
The foregoing is a summary of some of the tax rules and considerations
affecting Members, the Fund, and the Fund's operations, and does not purport
to be a complete analysis of all relevant tax rules and considerations, nor
does it purport to be a complete listing of all potential tax risks inherent
in making an investment in the Fund. A Member may be subject to other taxes,
including, but not limited to, state and local taxes, estate and inheritance
taxes, and intangible taxes that may be imposed by various jurisdictions. The
Fund also may be subject to state, local, and foreign taxes that could reduce
cash distributions to Members. It is the responsibility of each Member to file
all appropriate tax returns that may be required. Each prospective Member is
urged to consult with his or her tax adviser with respect to any investment in
the Fund.
INVESTMENT BY EMPLOYEE BENEFIT PLANS
The following section sets forth certain consequences under ERISA and the Code
which a fiduciary of an "employee benefit plan" as defined in and subject to
ERISA (an "ERISA Plan") or of a "plan" as defined in and subject to Section
4975 of the Code who has investment discretion should consider before deciding
to invest the plan's assets in the Fund (such ERISA Plans and other "plans"
being referred to herein as "Plans," and such fiduciaries with investment
discretion being referred to herein as "Plan Fiduciaries"). The following
summary is not intended to be complete, but only to address certain questions
under ERISA and the Code which are likely to be raised by the Plan Fiduciary's
own counsel.
In general, the terms "employee benefit plan" as defined in ERISA and "plan"
as defined in Section 4975 of the Code together refer to any plan or account
of various types which provides retirement benefits or welfare benefits to an
individual or to an employer's employees and their beneficiaries. Such plans
and accounts include, but are not limited to, corporate pension and
profit-sharing plans, "simplified employee pension plans," KEOGH plans for
self-employed individuals (including partners), individual retirement accounts
described in Section 408 of the Code, and medical benefit plans.
Each Plan Fiduciary of an ERISA Plan must give appropriate consideration to
the facts and circumstances that are relevant to an investment in the Fund,
including the role an investment in the Fund plays in the ERISA Plan's
investment portfolio and the projected return of the ERISA Plan's total
portfolio relative to the Plan's funding objectives. Each Plan Fiduciary of an
ERISA Plan, before deciding to invest in the Fund, must be satisfied that
investment in the Fund is a prudent investment for the ERISA Plan, that the
investments of the ERISA Plan, including the investment in the Fund, are
diversified so as to minimize the risks of large losses and that an investment
in the Fund complies with the documents of the ERISA Plan and related trust.
If a Plan Fiduciary of an
53
ERISA Plan breaches his or her fiduciary responsibilities with regard to
selecting an investment for an ERISA Plan, the Plan Fiduciary may be held
personally liable for losses incurred by the ERISA Plan as a result of such
breach.
Because the Fund will be registered as an investment company under the 1940
Act, the underlying assets of the Fund will not be considered to be "plan
assets" of the Plans investing in the Fund for purposes of ERISA's fiduciary
responsibility and prohibited transaction rules or the prohibited transaction
rules of Section 4975 of the Code. Thus, the Adviser will not be a fiduciary
with respect to the assets of any Plan that becomes a Member of the Fund,
solely as a result of the Plan's investment in the Fund.
The Board will require a Plan proposing to invest in the Fund to represent
that it, and any fiduciaries responsible for the Plan's investments, are aware
of and understand the Fund's investment objective, policies, and strategies,
that the decision to invest plan assets in the Fund was made with appropriate
consideration of relevant investment factors with regard to the Plan, and,
with respect to an ERISA Plan, that the decision to invest plan assets in the
Fund is consistent with the duties and responsibilities imposed upon
fiduciaries with regard to their investment decisions under ERISA.
Certain prospective Plan investors may currently maintain relationships with
the Adviser or one or more investment advisers of Investment Funds in which
the Master Fund will invest, or with other entities that are affiliated with
the Adviser or such investment advisers. Each of such persons may be deemed to
be a party in interest to and/or a fiduciary of any Plan to which it provides
investment management, investment advisory, or other services. ERISA and
Section 4975 of the Code prohibit Plan assets to be used for the benefit of a
party in interest and also prohibits a Plan Fiduciary from using its position
to cause the Plan to make an investment from which it or certain third parties
in which such Plan Fiduciary has an interest would receive a fee or other
consideration. Plan investors should consult with legal counsel to determine
if participation in the Fund is a transaction that is prohibited by ERISA or
the Code, and will be required to represent that the purchase of Interests in
the Fund is not such a prohibited transaction. Plan Fiduciaries also will be
required to represent that the decision to invest in the Fund was made by them
as fiduciaries that are independent of such affiliated persons, that are duly
authorized to make such investment decisions, and that have not relied on any
individualized advice or recommendation of such affiliated persons, as a
primary basis for the decision to invest in the Fund.
The foregoing statements regarding the consequences under ERISA and the Code
of an investment in the Fund are based on the provisions of the Code and ERISA
as currently in effect, and the existing administrative and judicial
interpretations thereunder. No assurance can be given that administrative,
judicial, or legislative changes will not occur that will not make the
foregoing statements incorrect or incomplete.
ACCEPTANCE OF SUBSCRIPTIONS ON BEHALF OF PLANS IS IN NO RESPECT A
REPRESENTATION BY THE BOARD, THE ADVISER, OR ANY OTHER PARTY RELATED TO THE
FUND THAT THIS INVESTMENT MEETS THE LEGAL REQUIREMENTS WITH RESPECT TO
INVESTMENTS BY ANY PARTICULAR PLAN OR THAT THIS INVESTMENT IS APPROPRIATE FOR
ANY PARTICULAR PLAN. THE PERSON WITH INVESTMENT DISCRETION SHOULD CONSULT WITH
HIS OR HER ATTORNEY AND FINANCIAL ADVISERS AS TO THE PROPRIETY OF AN
INVESTMENT IN THE FUND IN LIGHT OF THE CIRCUMSTANCES OF THE PARTICULAR PLAN.
54
SUMMARY OF THE OPERATING AGREEMENT
An investor in the Fund will be a Member of the Fund and its rights in the
Fund will be established and governed by the Operating Agreement that is
included as Appendix B to this Prospectus. An investor and his or her advisers
should carefully review the Operating Agreement, as each Member will agree to
be bound by its terms and conditions. The following is a summary description
of additional items and of select provisions of the Operating Agreement that
may not be described elsewhere in this Prospectus. The description of such
items and provisions is not definitive and reference should be made to the
complete text of the Operating Agreement.
Interests; Members
Persons who purchase Interests will be Members of the Fund. The Adviser and
its affiliates may contribute capital to and maintain an investment in the
Fund, and to that extent will be Members of the Fund. The Adviser will also be
the Special Advisory Member with respect to the Capital Account established in
respect of its Incentive Allocation. The Adviser and its affiliates may, but
are under no obligation to invest in the Fund, and may subscribe for Interests
or have their Interests repurchased by the Fund without notice to Members. Any
purchase or repurchase of Fund Interests by the Adviser or its affiliates will
occur only on the Fund's terms and conditions as set forth in this Prospectus.
The Fund reserves the right to issue additional classes of Interests in the
future subject to fees, charges, repurchase rights, and other characteristics
different from those of the Interests offered in this Prospectus.
Persons to whom Interests are transferred in accordance with the Operating
Agreement will be Members of the Fund, subject to such person meeting any
transferability requirements. The Interests are subject to substantial
restrictions on transferability and resale and may not be transferred or
resold except as permitted under the Operating Agreement. By subscribing for
an Interest, each Member agrees to indemnify and hold harmless the Fund, the
Board, the Adviser, each other Member, and any affiliate of the foregoing
against all losses, claims, damages, liabilities, costs, and expenses
(including legal or other expenses incurred in investigating or defending
against any losses, claims, damages, liabilities, costs, and expenses or any
judgments, fines, and amounts paid in settlement), joint or several, to which
such persons may become subject by reason of or arising from any transfer made
by that Member in violation of the Operating Agreement or any
misrepresentation made by that Member in connection with any such transfer.
Liability of Members
Under Delaware law and the Operating Agreement, each Member will be liable for
the debts and obligations of the Fund only to the extent of any contributions
to the capital of the Fund (plus any accretions in value thereto prior to
withdrawal), and a Member, in the sole discretion of the Board, may be
obligated to return to the Fund amounts distributed to the Member in
accordance with the Operating Agreement in certain circumstances where after
giving effect to the distribution, certain liabilities of the Fund exceed the
fair market value of the Fund's assets.
Duty of Care
The Operating Agreement provides that the Board and the Adviser (including
certain of its affiliates, among others) will not be liable to the Fund or any
of the Members for any loss or damage occasioned by any act or omission in the
performance of their services as such in the absence of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved in
the conduct of their office or as otherwise required by applicable law. The
Operating Agreement also contains provisions for the indemnification, to the
extent permitted by law, of the Board and the Adviser (including certain of
its affiliates, among others) by the Fund (but not by the Members
individually) against any liability and expense to which any of them may be
liable that arise in connection with the performance of their activities on
behalf of the Fund. None of these persons will be personally liable to any
Member for the repayment of any positive balance in the Member's Capital
Account or for contributions by the Member to the capital of the Fund or by
reason of any change in the federal or state income tax laws applicable to the
Fund or its investors. The rights of indemnification and exculpation provided
under the Operating Agreement will not be construed so as to limit liability
or provide for indemnification of the Board and the Adviser (including certain
of its
55
affiliates, among others) for any liability (including liability under
applicable federal or state securities laws which, under certain
circumstances, impose liability even on persons that act in good faith), to
the extent (but only to the extent) that such indemnification or limitation on
liability would be in violation of applicable law, but will be construed so as
to effectuate the applicable provisions of the Operating Agreement to the
fullest extent permitted by law.
Amendment of the Operating Agreement
The Operating Agreement may generally be amended, in whole or in part, with
the approval of the Board (including a majority of the Independent Directors,
if required by the 1940 Act) and without the approval of the Members unless
the approval of Members is required by the 1940 Act. However, certain
amendments to the Operating Agreement involving Capital Accounts and
allocations thereto may not be made without the written consent of any Member
adversely affected thereby or unless each Member has received written notice
of the amendment and any Member objecting to the amendment has been allowed a
reasonable opportunity (pursuant to any procedures as may be prescribed by the
Board) to have all of its Interest repurchased by the Fund.
Term, Dissolution, and Liquidation
The Fund will be dissolved: (i) upon the affirmative vote to dissolve the Fund
by: (a) the Board; or (b) Members holding at least two-thirds (2/3) of the
total number of votes eligible to be cast by all Members; (ii) if any Member
that has submitted a written request, in accordance with the terms of the
Operating Agreement, to tender all of such Member's Interest for repurchase by
the Fund has not been given the opportunity to so tender within a period of
two years after the request (whether in a single repurchase offer or multiple
consecutive offers within the two-year period); provided, however, that a
Member who intends to cause the Fund to be dissolved must so indicate in a
separate written request submitted within the applicable two-year period;
(iii) as required by operation of law; or (iv) as set forth in the Operating
Agreement.
Upon the occurrence of any event of dissolution, the Board or the Adviser,
acting as liquidator under appointment by the Board (or another liquidator, if
the Board does not appoint the Adviser to act as liquidator or is unable to
perform this function) is charged with winding up the affairs of the Fund and
liquidating its assets. Net profits or net loss during the fiscal period
including the period of liquidation will be allocated as described in the
section titled "Capital Accounts and Allocations."
Upon the liquidation of the Fund, its assets will be distributed: (i) first to
satisfy the debts, liabilities, and obligations of the Fund (other than debts
to Members) including actual or anticipated liquidation expenses; (ii) next to
repay debts owing to the Members; and (iii) finally to the Members
proportionately in accordance with the balances in their respective Capital
Accounts. Assets may be distributed in kind on a pro rata basis if the Board
or liquidator determines that such a distribution would be in the interests of
the Members in facilitating an orderly liquidation.
Reports to Members
The Fund will furnish to Members as soon as practicable after the end of each
taxable year such information as is necessary for them to complete federal and
state income tax or information returns, along with any other tax information
required by law. However, a delay by the investment adviser of an Investment
Fund in providing this information could delay the Fund's preparation of tax
information for investors, which will require Members to seek extensions on
the time to file their tax returns, and could delay the preparation of the
Fund's annual report. Accordingly, Members should be prepared to obtain
extensions of time to file their income tax returns. The Fund anticipates
sending to Members an unaudited semi-annual and an audited annual report
within 60 days after the close of the period for which the report is being
made, or as otherwise required by the 1940 Act. Members also will be sent
monthly reports regarding the Fund's operations during each month. Any Member
may request from the Adviser an estimate, based on unaudited data, of the net
asset value of the Fund as of the end of any calendar month.
56
Fiscal Year
For accounting purposes, the Fund's, the Offshore Fund's, and the Master
Fund's fiscal year is the 12-month period ending on March 31. The 12-month
period ending December 31 of each year will be the taxable year of the Fund,
the Offshore Fund, and the Master Fund.
GENERAL INFORMATION
Description of the Fund
The Fund is registered under the 1940 Act as a closed-end, non-diversified,
management investment company. The Fund was established as a limited liability
company under the laws of the State of Delaware on December 9, 2003, and has
no operating history. The Fund's office is located at 25 DeForest Avenue,
Summit, New Jersey 07901. The Fund's Prospectus is available upon request and
without charge by writing to PFPC, Inc., 400 Bellevue Parkway, Wilmington,
Delaware 19801. The telephone number of the Fund is 1-888-262-0695.
Liquidating Trust
The Board may, at its discretion if determined to be in the best interests of
Members, distribute the assets of the Fund into and through a liquidating
trust to effect the liquidation of, all or a portion of, the Fund. The use of
a liquidating trust would be subject to the regulatory requirements of the
1940 Act and applicable Delaware law, and could result in expenses that the
Members would bear indirectly. There are no current plans to liquidate the
Fund.
Independent Auditors and Legal Counsel
The Board has selected PricewaterhouseCoopers LLP as the independent auditors
of the Fund and the Master Fund. PricewaterhouseCoopers LLP's principal
business address is located at 1177 Avenue of the Americas, New York, New York
10036.
The law firm of Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New York,
New York 10019, serves as legal counsel to the Fund and the Master Fund.
57
APPENDIX A
----------
The Topiary Fund for Benefit Plan Investors (BPI) LLC (the "Fund")
Form of Investor Certification
------------------------------
This certificate relates to The Topiary Fund for Benefit Plan Investors (BPI)
LLC (the "Fund") and is given to you with respect to a potential purchase of a
limited liability company interest (an "Interest") in the Fund. Please check
the box at the end of the applicable paragraph.
[For individual investors] I hereby certify that I either (i) have an
individual net worth, or joint net worth with my spouse, in excess of
$1,500,000 or (ii) have (or will have upon the acceptance of my capital
contribution) at least $750,000 under the management of the Adviser (including
any Interest in the Fund). | |
[For all entities] I hereby certify that the entity on behalf of which I am
signing (A) is not (i) an investment company registered under the 1940 Act,
(ii) an entity which would be defined as an investment company under Section
3(a) of the 1940 Act (e.g., an entity engaged primarily in investing, owning,
holding, or trading in securities) but for the exclusion from such definition
provided by Section 3(c)(1) of the 1940 Act for entities that have not
publicly offered their securities and whose outstanding securities are
beneficially owned by not more than 100 persons or (iii) a private business
development company as defined in Section 202(a)(11) of the Investment
Advisers Act of 1940, as amended; and (B) that such entity has a net worth in
excess of $1,500,000 or (ii) has (or will have upon the acceptance of its
capital contribution) at least $750,000 under the management of the Adviser
(including any Interest in the Fund). I hereby further certify that each
equity owner of the entity on behalf of which I am signing is either (i) a
natural person with an individual net worth, or joint net worth with his or
her spouse, in excess of $1,500,000, (ii) a natural person who has (or will
have immediately after acceptance of this capital contribution) at least
$750,000 under management with the Adviser, whether in the Fund or otherwise,
(iii) an entity which is not described in sub-clauses (i), (ii), or (iii) of
clause (A) above which (a) has a net worth in excess of $1,500,000 or (b) has
(or will have upon acceptance of its capital contribution) at least $750,000
under the management of the Adviser (including any Interest in the Fund), or
(iv) an entity described in sub-clause (i), (ii), or (iii) of clause (A) above
of which each and every equity owner is a person described in clauses (i)
through (iii) of this sentence. | |
[For corporations, partnerships, or limited liability companies] I hereby
certify that the entity on behalf of which I am signing either (i) has total
assets in excess of $5,000,000, was not formed for the specific purpose of
investing in the Fund and is (a) a futures commission merchant registered
pursuant to Section 4(d) of the Commodity Exchange Act, (b) a registered
commodity trading advisor who has been registered and active as such for two
years or who provides commodity interest trading advice to commodity accounts
which, in the aggregate, have total assets in excess of $5,000,000 deposited
at one or more futures commission merchants, (c) a registered commodity pool
operator who has been registered and active as such for two years or who
operates pools which, in the aggregate, have total assets in excess of
$5,000,000 or (d) a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; or (ii) has total assets in excess of
$5,000,000, was not formed for the specific purpose of investing in the Fund
and its purchase of an Interest is directed by a sophisticated person within
the meaning of Regulation D promulgated under the Securities Act; or (iii) all
of the equity owners, unit owners and participants of the undersigned are
accredited investors. | |
[For trusts] I hereby certify that the trust on behalf of which I am signing
either (i) has total assets in excess of $5,000,000, was not formed for the
specific purpose of investing in the Fund and its purchase of an Interest is
directed by sophisticated person within the meaning of Regulation D
promulgated under the Securities Act; (ii) is a bank as defined in Section
3(a)(2) of the Securities Act, is acting in its fiduciary capacity as trustee
and is subscribing for an Interest on behalf of a trust that qualifies as an
accredited investor(1); or (iii) is a revocable trust that may be amended or
revoked at any time by the grantors thereof, and all of the grantors are
accredited investors. | |
----------------
(1) "Bank" is defined in Section 3(a)(2) of the Securities Act as "any national
bank, or any banking institution organized under the laws of any state,
territory, or the District of Columbia, the business of which is substantially
A-1
I hereby further certify under penalty of perjury that: (i) the taxpayer
identification number contained on accompanying W-9 (or to be issued to me) is
true, correct, and complete; and (ii) I am either (a) exempt from taxation
under Section 501(a) of the Internal Revenue Code of 1986, as amended (the
"Code") or (b) an individual retirement account (as defined in Section 408 of
the Code).
In addition, I hereby confirm that I understand and agree that should I (or
the company) purchase an Interest, the following conditions will apply to the
ownership and transfer of the Interest:
(A) An Interest may be held only through a broker, dealer or other
financial intermediary that has entered into an agreement for the
provision of shareholder services to the Fund;
(B) An Interest (or portion thereof) may not be transferred, including
by bequest, except to a person who has a net worth (if a natural
person, together with assets held jointly with spouse) of more than
$1,500,000, who agrees to hold his, her or its Interests through a
broker, dealer or other financial intermediary that has entered into
an agreement for the provision of shareholder services to the Fund,
and who agrees not to transfer the Interest (or portion thereof)
except to another person who has a net worth (if a natural person,
together with assets held jointly with spouse) of more than
$1,500,000 and agrees to comply with the foregoing ownership and
transfer restrictions; and
(C) Upon any transfer of an Interest (or portion thereof) in violation
of the foregoing clauses (A) or (B), in addition to any other remedy
that it may have, the Fund will have the right (but not the
obligation) to repurchase all or a portion of any such improperly
transferred Interest.
I further certify that:
(A) I understand that it may be a violation of state and/or Federal law
for me to provide this certification if I know that it is not true;
(B) I have read the Prospectus of the Fund, including the investor
qualification and investor eligibility provisions contained therein;
(C) I understand that an investment in the Fund involves a considerable
amount of risk and that some or all of my investment may be lost;
(D) I understand that an investment in the Fund is suitable only for
investors who can bear the risks associated with the limited
liquidity of the investment and should be viewed as a long-term
investment;
(E) I am aware of the Fund's limited provisions for transferability and
withdrawal and have carefully read and understand the "Repurchases
of Interests" and "Transfers of Interests" provisions in the
Prospectus;
(F) I understand that the Fund and its affiliates are relying on the
certification and agreements made herein in determining my
qualification and suitability for an investor in the Fund; and
(G) I understand that an investment in the Fund is not appropriate for,
and may not be acquired by, any person who cannot make this
certification, and agree to indemnify DB Investment Managers, Inc.
and its affiliates and hold harmless from any liability that it may
occur as a result of this certification being untrue in any respect.
------------------------------------------------------------------------------
confined to banking and is supervised by the state or territorial banking
commission or similar official."
A-2
I hereby further certify that I agree to produce evidence to support the
foregoing certifications upon request.
Amount Invested: $ ______________
------------------------------- --------------------
Signature Date
A-3
APPENDIX B
----------
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of The Topiary Fund for Benefit Plan Investors (BPI) LLC (the "Fund") is made
effective as of July 21, 2004 by and among the Organizational Member, the
Investment Adviser, and each person hereinafter admitted to the Fund and
reflected on the books of the Fund as a Member.
W I T N E S S E T H :
WHEREAS, the Fund heretofore has been formed as a limited liability
company under the Delaware Act, pursuant to the Certificate dated as of
December 5, 2003 and filed with the Secretary of State of the State of
Delaware on December 8, 2003;
WHEREAS, the parties hereto wish to amend and restate the Limited
Liability Company Operating Agreement of the Company dated December 8, 2003 in
its entirety;
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants hereinafter set forth, it is hereby agreed as follows:
------------------------------------------
ARTICLE I
DEFINITIONS
------------------------------------------
For purposes of this Agreement:
1.1 ADVISERS ACT means the Investment Advisers Act of 1940 and the rules,
regulations, and orders thereunder, as amended from time to time, or any
successor law.
1.2 AFFILIATE means affiliated person as such term is defined in the 1940
Act, as hereinafter defined.
1.3 AGREEMENT means this Limited Liability Company Operating Agreement,
as amended and/or restated from time to time.
1.4 BOARD means the Board of Directors established pursuant to Section
2.6 and each Director on the Board shall be deemed a "Manager" of the Fund
within the meaning of the Delaware Act.
1.5 CAPITAL ACCOUNT means, with respect to each Member, the capital
account established and maintained on behalf of each Member pursuant to
Section 5.3.
1.6 CAPITAL CONTRIBUTION means the contribution, if any, made, or to be
made, as the context requires, to the capital of the Fund by a Member.
1.7 CERTIFICATE means 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.
1.8 CLASS means any class of limited liability company interests
established by the Board from time to time.
B-1
1.9 CLOSING means the closing of a subscription to purchase an Interest.
1.10 CODE means the United States Internal Revenue Code of 1986, as
amended and as hereafter amended from time to time, or any successor law.
1.11 CONFIDENTIAL INFORMATION shall have the meaning as set forth in
Section 8.12(a).
1.12 DELAWARE ACT means the Delaware Limited Liability Company Act (6
DEL.C. Sections 18-101, et seq.) as in effect on the date hereof and as
amended from time to time, or any successor law.
1.13 DIRECTOR means each person who initially serves on the Board
pursuant to Section 2.6 or who, from time to time, pursuant to this Agreement
shall serve on the Board as indicated in the records of the Fund. Each
Director shall be deemed a "Manager" of the Fund within the meaning of the
Delaware Act.
1.14 EXPENSE ALLOCATION DATE means the initial Closing, and thereafter
each day, through and including the date which is twelve months after the
initial Closing, as of which a contribution to the capital of the Fund is made
pursuant to Section 5.1.
1.15 FISCAL PERIOD means the period commencing on the initial Closing,
and thereafter each period commencing on the day immediately following the
last day of the preceding Fiscal Period, and ending at the close of business
on the first to occur of the following dates:
(1) the last day of a Fiscal Year;
(2) the day preceding any day as of which a contribution to the
capital of the Fund is made pursuant to Section 5.1;
(3) the day as of which the Fund repurchases all or a portion of an
Interest of any Member pursuant to this Agreement;
(4) any day as of which there is any distribution to a Member
pursuant to Section 5.9;
(5) any other day as of which this Agreement provides for any amount
to be credited to or debited against the Capital Account of any Member,
other than an amount to be credited to or debited against the Capital
Accounts of all Members in accordance with their respective Fund
Percentages;
(6) the date as of which the Fund terminates; or
(7) any other date as established by the Board.
1.16 FISCAL YEAR, for accounting purposes, means the period commencing on
the initial Closing and ending on March 31 and thereafter each period
commencing on April 1 of each year and ending on March 31 of each year (or on
the date of a final distribution pursuant to Section 6.2 hereof), unless the
Directors shall designate another fiscal year for the Fund that is a
permissible taxable year under the Code. For tax purposes, the 12-month period
ending December 31 of each year will be the Fund's taxable year.
1.17 FORM N-2 means the Fund's Registration Statement on Form N-2 or any
successive form filed with the Securities and Exchange Commission ("SEC"), as
amended from time to time.
1.18 FUND means the limited liability company governed hereby, as such
limited liability company may from time to time be constituted.
1.19 FUND PERCENTAGE means a percentage established for each Member on
the Fund's books as of the first day of each Fiscal Period. The Fund
Percentage of a Member for a Fiscal Period shall be determined by dividing the
balance of the Member's Capital Account as of the commencement of such Fiscal
Period by the sum of
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the Capital Accounts of all of the Members as of the commencement of such
Fiscal Period. The sum of the Fund Percentages of all Members for each Fiscal
Period shall equal 100%.
1.20 INCENTIVE ALLOCATION means the incentive allocation made to the
Special Advisory Member with respect to each Member's Capital Account, in
respect of the Net Profit (if any) of such Capital Account in excess of the
Hurdle (as such term is defined in Section 5.5(a)) in accordance with Section
5.5 hereof.
1.21 INDEPENDENT DIRECTORS means those Directors who are not "interested
persons" of the Fund as such term is defined in the 1940 Act.
1.22 INTEREST means the entire limited liability company interest (as
defined in the Delaware Act) in the Fund at any particular time of a Member or
other person to whom an Interest or portion thereof has been transferred
pursuant to this Agreement, including the rights and obligations of such
Member or other person under this Agreement and the Delaware Act.
1.23 INVESTED CAPITAL means, with respect to any Member, the amount of
such Member's aggregate Net Capital Contributions to the Fund, subject to any
adjustments made and decreased by any repurchases or distributions.
1.24 INVESTMENT ADVISER means the person who at any particular time
serves as the investment adviser to the Master Fund pursuant to a written
agreement with the Master Fund.
1.25 INVESTMENT MANAGEMENT AGREEMENT means the separate written agreement
between the Master Fund and the Investment Adviser pursuant to which the
Investment Adviser performs certain investment advisory and supervisory
services to the Master Fund.
1.26 MANAGEMENT FEE means the management fee paid to the Investment
Adviser out of the Master Fund's assets pursuant to the Investment Management
Agreement.
1.27 MASTER FUND means The Topiary Master Fund for Benefit Plan Investors
(BPI) LLC, the "master fund" in which the Offshore Fund will invest all or
substantially all of its assets.
1.28 MEMBER means any person who shall have been admitted to the Fund as
a member or a substitute Member who is admitted to the Fund pursuant to this
Agreement, in such person's capacity as a Member until the Fund repurchases
the entire Interest of such person as a Member pursuant to Section 4.5 hereof
or a substituted Member or Members are admitted with respect to any such
person's entire Interest as a Member pursuant to Section 4.5 hereof. The
Members shall constitute a single class or group of members.
1.29 NEGATIVE BASIS shall have the meaning set forth in Section 5.8.
1.30 NEGATIVE BASIS MEMBER shall have the meaning as set forth in Section
5.8.
1.31 NET ASSET VALUE means the total value of all assets of the Fund as
valued pursuant to Section 7.3, less an amount equal to all accrued debts,
liabilities, and obligations of the Fund, calculated before giving effect to
any repurchase of Interests.
1.32 NET CAPITAL CONTRIBUTION means a Member's Capital Contribution minus
fees or expenses, if any.
1.33 NET PROFIT OR NET LOSS means the amount by which the Net Assets as
of the close of business on the last day of a Fiscal Period exceed (in the
case of Net Profit) or are less than (in the case of Net Loss) the Net Assets
as of the commencement of the same Fiscal Period, such amount to be adjusted
to exclude any items to be allocated among the Capital Accounts of the Members
on a basis that is not in accordance with the respective Fund Percentages of
all Members as of the commencement of such Fiscal Period pursuant to this
Agreement.
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1.34 1940 ACT means the Investment Company Act of 1940 and the rules,
regulations, and orders thereunder, as amended from time to time, or any
successor law.
1.35 1934 ACT means the Securities Exchange Act of 1934 and the rules,
regulations, and orders thereunder, as amended from time to time, or any
successor law.
1.36 OFFERING EXPENSES means the expenses of offering Interests in the
Fund.
1.37 OFFSHORE FUND means a fund organized as a limited duration company
or similar entity in the Cayman Islands (or as a similar entity in a similar
non-United States jurisdiction) in which the Fund intends to invest
substantially all of its assets.
1.38 ORGANIZATIONAL EXPENSES means the expenses incurred by the Fund in
connection with its formation and initial registration as an investment
company under the 1940 Act.
1.39 ORGANIZATIONAL MEMBER means John T. Ferguson, Jr.
1.40 PERSON means any individual, entity, corporation, partnership,
association, limited liability company, joint-stock company, trust, estate,
joint venture, organization, or unincorporated organization.
1.41 POSITIVE BASIS shall have the meaning as set forth in Section 5.8.
1.42 POSITIVE BASIS MEMBER shall have the meaning as set forth in Section
5.8.
1.43 REPURCHASE VALUATION DATE shall have the meaning set forth in
Section 4.5.
1.44 SECURITIES means securities (including, without limitation,
equities, debt obligations, options, and other "securities" as that term is
defined in Section 2(a)(36) of the 1940 Act) and any contracts for forward or
future delivery of any security, debt obligation, currency, or commodity, all
manner of derivative instruments and any contracts based on any index or group
of securities, debt obligations, currencies, or commodities, and any options
thereon.
1.45 SECURITIES ACT means the Securities Act of 1933, as amended and any
regulations promulgated thereunder.
1.46 SERIES means any series of limited liability company interests
established by the Board relating to a distinct portfolio and having separate
rights and powers with respect to the assets of the Fund allocated to such
Series.
1.47 SPECIAL ADVISORY MEMBER means the Investment Adviser in its capacity
as the investment adviser to the Master Fund, in which the Fund will invest
substantially all of its assets through the Offshore Fund and which will
therefore be responsible for the investment and trading of the assets of the
Fund.
1.48 TAX MATTERS MEMBER means the Member designated as "tax matters
member" of the Fund pursuant to Section 8.18 hereof.
1.49 TRANSFER means the assignment, transfer, sale, or other disposition
of all or any portion of an Interest, including any right to receive any
allocations and distributions attributable to an Interest.
1.50 VALUATION DATE means any date in which the Net Asset Value of the
Fund is computed.
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------------------------------------------
ARTICLE II
ORGANIZATION; ADMISSION OF MEMBERS; BOARD
------------------------------------------
2.1 FORMATION OF LIMITED LIABILITY COMPANY. The Organizational Member and
any person designated by the Board hereby are designated as authorized
persons, within the meaning of the Delaware Act, to execute, deliver, and file
all certificates (and any amendments and/or restatements thereof) required or
permitted by the Delaware Act to be filed in the office of the Secretary of
State of the State of Delaware. The Board shall cause to be executed and filed
with applicable governmental authorities any other instruments, documents, and
certificates which, in the opinion of the Fund's legal counsel, may from time
to time be required by the laws of the United States of America, the State of
Delaware, or any other jurisdiction in which the Fund shall determine to do
business, or any political subdivision or agency thereof, or which such legal
counsel may deem necessary or appropriate to effectuate, implement, and
continue the valid existence and business of the Fund.
2.2 NAME. The name of the Fund shall be The Topiary Fund for Benefit Plan
Investors (BPI) LLC, pursuant to the Certificate dated as of December 5, 2003
and filed with the Secretary of State of the State of Delaware on December 8,
2003, and amended on July 21, 2004 pursuant to the Certificate of Amendment
filed with the Secretary of the State of Delaware, or such other name as the
Board hereafter may adopt upon: (i) causing an appropriate amendment to the
Certificate to be filed in accordance with the Delaware Act; and (ii) sending
notice thereof to each Member. The Fund's business may be conducted under the
name of the Fund or, to the fullest extent permitted by law, any other name or
names deemed advisable by the Board.
2.3 PRINCIPAL AND REGISTERED OFFICE. The Fund shall have its principal
office at the principal office of the Investment Adviser, or at such other
place designated from time to time by the Board.
The Fund shall have its registered office in the State of Delaware at
1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and shall
have the Corporation Trust Company as its registered agent at such registered
office for service of process in the State of Delaware, unless a different
registered office or agent is designated from time to time by the Board in
accordance with the Delaware Act.
2.4 DURATION. The term of the Fund shall commence on the filing of the
Certificate with the Secretary of State of the State of Delaware and shall
continue perpetually unless and until the Fund is dissolved pursuant to
Section 6.1 hereof.
2.5 BUSINESS OF THE FUND. The business of the Fund is, without
limitation, either directly or indirectly through one or more pooled
investment vehicles, to purchase, sell, invest, and trade in Securities on
margin or otherwise, to invest as a feeder fund, either directly or indirectly
(including via the Offshore Fund) in a master fund as part of a master-feeder
structure, including the Master Fund, and to engage in any financial or
derivative transactions relating thereto or otherwise and to engage in such
other activities and to exercise such rights and powers as permitted by
limited liability companies under the Delaware Act. On behalf of the Fund, the
officers of the Fund may execute, deliver, and perform all contracts,
agreements, and other undertakings and engage in all activities and
transactions as may in the opinion of the Board be necessary or advisable to
carry out the Fund's business and any amendments to any such contracts,
agreements, and other undertakings, all without any further act, vote, or
approval of any other person, notwithstanding any other provision of this
Agreement.
2.6 THE BOARD.
(a) The Organizational Member shall serve as the sole Director on the
initial Board as of December 8, 2003, until the proper designation of those
persons first listed on Schedule I who shall agree to be bound by all of the
terms of this Agreement to serve as Directors on the initial Board, which
agreement to be bound shall be effective as of the date of their acceptance of
their appointment as Director. The Board may, subject to the provisions of
paragraphs (a) and (b) of this Section 2.6 with respect to the number of and
vacancies in the position of Director and the provisions of Section 3.3 hereof
with respect to the election of Directors by Members, designate
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any person who shall agree to be bound by all of the terms of this Agreement
as a Director. The names and mailing addresses of the Directors shall be set
forth in the books and records of the Fund. The number of Directors shall be
fixed from time to time by a written instrument signed by, or by resolution
approved at a duly constituted meeting by vote of, a majority of the Board,
provided however that the number of Directors shall at all times be at least
one and no more than ten as determined, from time to time, by the Directors
pursuant to this Agreement.
(b) Each Director shall serve as a Director for the duration of the term
of the Fund, unless his or her status as a Director shall be sooner terminated
pursuant to Section 4.2 hereof. If any vacancy in the position of a Director
occurs, the remaining Directors may appoint a person to serve in such
capacity, provided such appointment is in accordance with the 1940 Act. The
Directors may call a meeting of Members to fill any vacancy in the position of
Director, and shall do so when required by the 1940 Act.
(c) In the event that no Director remains to continue the business of the
Fund, the Investment Adviser shall promptly call a meeting of the Members, to
be held within 60 days after the date on which the last Director ceased to act
in that capacity, for the purpose of determining whether to continue the
business of the Fund and, if the business shall be continued, of electing the
required number of Directors to the Board. If the Members shall determine at
such meeting not to continue the business of the Fund or if the required
number of Directors is not elected within 60 days after the date on which the
last Director ceased to act in that capacity, then the 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.
(a) The Board may admit one or more Members at such times as the Board
may determine. Members may be admitted to the Fund subject to the condition
that each such Member execute an appropriate signature page of this Agreement,
application, subscription agreement, or without such execution, if such Member
orally, in writing, or by other action, including, but not limited to payment
for an Interest, complies with the conditions for becoming a Member and
pursuant to which such Member agrees to be bound by all the terms and
provisions hereof. This Agreement shall not be unenforceable by reason of it
not having been signed by a person being admitted as a Member. The Board, in
its sole and absolute discretion, may reject applications or subscription
agreements for Interests in the Fund. The admission of any person as a Member
shall be effective upon the revision of the books and records of the Fund to
reflect the name and the contribution to the capital of the Fund of such
additional Member. The Organizational Member is hereby admitted as a Member on
the date hereof.
(b) If a Member is admitted to the Fund prior to the initial Closing, the
Invested Capital of such Member shall be adjusted by any Net Profit or Net
Loss allocable to such Member for the period through the initial Closing.
2.8 BOTH DIRECTORS AND MEMBERS. A Member may at the same time be a
Director, a Special Advisory Member, or an Investment Adviser and a Member in
which event such Member's rights and obligations in each capacity shall be
determined separately in accordance with the terms and provisions hereof and
as provided in the Delaware Act and the 1940 Act. A Director need not be a
Member.
2.9 SPECIAL ADVISORY MEMBER. Upon signing this Agreement, the Investment
Adviser shall be admitted to the Fund as the Special Advisory Member, subject
to due approval, in accordance with the requirements of the 1940 Act, of the
Investment Management Agreement. The Interest of the Special Advisory Member
shall be non-voting. If at any time the Investment Management Agreement
between the Master Fund and the person then serving as Investment Adviser
terminates, the Board shall admit as a substitute Special Advisory Member,
upon its signing this Agreement, such person as may be retained by the Master
Fund to provide investment advisory services pursuant to an Investment
Management Agreement, subject to the due approval of such Investment
Management Agreement in accordance with the requirements of the 1940 Act.
2.10 ORGANIZATIONAL MEMBER. John T. Ferguson shall be the Organizational
Member of the Fund.
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2.11 LIMITED LIABILITY. To the fullest extent permitted under applicable
law, a Member (including, in its capacity as such, the Special Advisory
Member) shall not be liable for the Fund's debts, obligations, or liabilities
in any amount in excess of the Capital Account balance of such Member. To the
fullest extent permitted under applicable law, the Investment Adviser and
Directors shall not be liable for the Fund's debts, obligations, or
liabilities.
2.12 SERIES. The Fund may create one or more Series and/or classes from
time to time. With respect to any Series established by the Fund, the
following provisions shall apply:
(a) separate and distinct records shall be maintained for each Series,
and the assets associated with any such Series shall be held and accounted for
separately from the other assets of the Fund or any other Series;
(b) the debts, liabilities, and obligations incurred, contracted for, or
otherwise existing with respect to a particular Series shall be enforceable
against the assets of such Series only, and not against the assets of the Fund
generally or any other Series;
(c) the Board, in its sole and absolute discretion, shall have authority
to restrict allocations or transfers of Member Capital Contributions to or
from any Series; and
(d) notwithstanding Section 18-215 of the Delaware Act, the failure of a
Series to have any Member associated with it shall not be the basis for the
dissolution of the Series and the winding up of its affairs unless in
accordance with the provisions of Article VI.
------------------------------------------
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 its duties hereunder. No
Director shall have the authority individually to act on behalf of or to bind
the Fund except within the scope of such Director's authority as delegated by
the Board. The parties hereto intend that, except to the extent otherwise
expressly provided herein: (i) each Director shall be vested with the same
powers, authority, and responsibilities on behalf of the Fund as are
customarily vested in each director of a Delaware corporation; and (ii) each
Independent Director shall be vested with the same powers, authority, and
responsibilities on behalf of the Fund as are customarily vested in each
director of a closed-end management investment company registered under the
1940 Act that is organized as a Delaware corporation who is not an "interested
person" of such company as such term is defined in the 1940 Act. During any
period in which the Fund shall have no Directors, the Investment Adviser shall
continue to have the authority to manage the business and affairs of the Fund.
The Directors may make Capital Contributions and own Interests in the Fund.
(b) Each Member agrees not to treat, on his personal income tax return or
in any claim for a tax refund, any item of income, gain, loss, deduction, or
credit in a manner inconsistent with the treatment of such item by the Fund.
The Board shall have the exclusive authority and discretion to make any
elections required or permitted to be made by the Fund under any provisions of
the Code or any other revenue laws.
(c) Members shall have no right to participate in and shall take no part
in the management or control of the Fund's business, except to the extent
specifically provided herein, 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.
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(d) The Board may delegate to any person, including officers of the Fund,
any rights, power, and authority vested by this Agreement in the Board to the
extent permissible under applicable law.
3.2 ACTIONS BY THE BOARD.
(a) Unless provided otherwise in this Agreement, the Board shall act
only: (i) by the affirmative vote of a majority of the Directors (which
majority shall include any requisite number of Independent Directors required
by the 1940 Act) present at a meeting duly called at which a quorum of the
Directors shall be present (in person, which may include any means of
communication that allows all Directors participating to hear each other
simultaneously during the meeting, as permitted by the SEC and/or the 1940
Act, or, if in person attendance is not required by the 1940 Act, in person or
by telephone); or (ii) by unanimous written consent of all of the Directors
without a meeting, if permissible under the 1940 Act.
(b) The Board may designate from time to time a Chairperson who shall
preside at all meetings. Meetings of the Board may be called by the
Chairperson or any two Directors, and may be held on such date and at such
time and place as the Board shall determine. Each Director shall be entitled
to receive written notice of the date, time, and place of such meeting within
a reasonable time in advance of the meeting. Notice need not be given to any
Director who shall attend a meeting without objecting to the lack of notice or
who shall execute a written waiver of notice with respect to the meeting.
Directors may attend and participate in any meeting by telephone, except where
in person attendance at a meeting is required by the 1940 Act. A majority of
the Directors then in office shall constitute a quorum at any meeting.
(c) The Board may designate from time to time agents and employees of the
Fund, including without limitation employees of the Investment Adviser, who
shall have the same powers and duties on behalf of the Fund (including the
power to bind the Fund) as are customarily vested in officers of a Delaware
corporation, and designate them as officers of the Fund.
3.3 MEETINGS OF MEMBERS.
(a) Actions requiring the vote of the Members may be taken at any duly
constituted meeting of the Members at which a quorum is present. Meetings of
the Members may be called by the Board or by Members holding a majority of the
total number of votes eligible to be cast by all Members, and may be held at
such time, date, and place as the Board shall determine. The Board shall
arrange to provide written notice of the meeting, stating the date, time, and
place of the meeting and the record date therefor, to each Member entitled to
vote at the meeting within a reasonable time prior thereto. Failure to receive
notice of a meeting on the part of any Member shall not affect the validity of
any act or proceeding of the meeting, so long as a quorum shall be present at
the meeting. Only matters set forth in the notice of a meeting may be voted on
by the Members at a meeting. The presence in person or by proxy of Members
holding a majority of the total number of votes eligible to be cast by all
Members as of the record date shall constitute a quorum at any meeting. In the
absence of a quorum, a meeting of the Members may be adjourned by action of a
majority of the Members present in person or by proxy without additional
notice to the Members. Except as otherwise required by any provision of this
Agreement or of the 1940 Act: (i) those candidates receiving a plurality of
the votes cast at any meeting of Members shall be elected as Directors; and
(ii) all other actions of the Members taken at a meeting shall require the
affirmative vote of Members holding a majority of the total number of votes
eligible to be cast by those Members who are present in person or by proxy at
such meeting.
(b) Each Member (other than the Special Advisory Member) shall be
entitled to cast at any meeting of Members a number of votes equivalent to
such Member's Fund Percentage as of the record date for such meeting. The
Board shall establish a record date not less than 10 nor more than 60 days
prior to the date of any meeting of Members to determine eligibility to vote
at such meeting and the number of votes which each Member will be entitled to
cast thereat, and shall maintain for each such record date a list setting
forth the name of each Member and the number of votes that each Member will be
entitled to cast at the meeting.
(c) A Member may vote at any meeting of Members by a proxy properly
executed in writing by the Member and filed with the Fund before or at the
time of the meeting. A proxy may be suspended or revoked, as the case may be,
by the Member executing the proxy by a later writing delivered to the Fund at
any time prior to
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exercise of the proxy or if the Member executing the proxy shall be present at
the meeting and decide to vote in person. Any action of the Members that is
permitted to be taken at a meeting of the Members may be taken without a
meeting if consents in writing, setting forth the action taken, are signed by
Members holding a majority of the total number of votes eligible to be cast or
such greater percentage as may be required in order to approve such action.
3.4 CUSTODY OF ASSETS OF THE FUND. The physical possession of all funds,
Securities, or other property 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.
3.5 OTHER ACTIVITIES OF MEMBERS AND DIRECTORS.
(a) The Directors shall not be required to devote full time to the
affairs of the Fund, but shall devote such time as may reasonably be required
to perform their obligations under this Agreement.
(b) Any Member, Director, or Affiliate of the foregoing may engage in or
possess an interest in other business ventures or commercial dealings of every
kind and description, independently or with others, including, but not limited
to, acquisition and disposition of Securities, provision of investment
advisory or brokerage services, serving as directors, officers, employees,
advisers, or agents of other companies, partners of any partnership, members
of any limited liability company, or trustees of any trust, or entering into
any other commercial arrangements. No Member shall have any rights in or to
such activities of any other Member or Director, or any profits derived
therefrom.
3.6 DUTY OF CARE.
(a) A Director shall not be liable to the Fund or to any of its Members
for any loss or damage occasioned by any act or omission in the performance of
the Director's services under this Agreement, unless it shall be determined by
final judicial decision in a court of competent jurisdiction on the merits
from which there is no further right to appeal that such loss is due to an act
or omission of such person constituting willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of
such Director's office or as otherwise required by law.
(b) A Member not in breach of any obligation hereunder or under any
agreement pursuant to which the Member subscribed for an Interest shall be
liable to the Fund, any other Member, or third parties only as required by the
Delaware Act or otherwise provided in this Agreement.
3.7 INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Fund shall, subject to
Section 3.7(b) hereof, indemnify each Director (including for this purpose
their executors, heirs, assigns, successors, or other legal representatives),
the Investment Adviser and Tax Matters Member (including for this purpose each
affiliate, shareholder, partner, member, officer, director, principal,
employee, or agent of the Investment Adviser and the Tax Matters Member) and
the executors, heirs, assigns, successors, or other legal representatives of
each of the foregoing, and of any person who controls or is under common
control, or otherwise affiliated, with the Investment Adviser or the Tax
Matters Member (and their executors, heirs, assigns, successors, or other
legal representatives) against all losses, claims, damages, liabilities,
costs, and expenses, including, but not limited to, amounts paid in
satisfaction of judgments, in compromise, or as fines or penalties, and
reasonable counsel fees, incurred in connection with the defense or
disposition of any action, suit, investigation, or other proceeding, whether
civil or criminal, before any judicial, arbitral, administrative, or
legislative body, in which such indemnitee may be or may have been involved as
a party or otherwise, or with which such indemnitee may be or may have been
threatened, while in office or thereafter, by reason of being or having been a
Director, the Investment Adviser, or the Tax Matters Member, as the case may
be, 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 office. The rights of indemnification
provided under this Section 3.7 shall not
B-9
be construed so as to provide for indemnification of an indemnitee for any
liability (including liability under federal securities laws which, under
certain circumstances, impose liability even on persons that act in good
faith) to the extent (but only to the extent) that such indemnification would
be in violation of applicable law, but shall be construed so as to effectuate
the applicable provisions of this Section 3.7 to the fullest extent permitted
by law.
(b) Expenses, including reasonable counsel fees, so incurred by any such
indemnitee (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties), may be paid from time to time by the
Fund in advance of the final disposition of any such action, suit,
investigation, or proceeding upon receipt of an undertaking by or on behalf of
such indemnitee to repay to the Fund amounts so paid if it shall ultimately be
determined that indemnification of such expenses is not authorized under
Section 3.7(a) hereof; provided, however, that: (i) such indemnitee shall
provide security for such undertaking, (ii) the Fund shall be insured by or on
behalf of such indemnitee against losses arising by reason of such
indemnitee's failure to fulfill his or its undertaking; or (iii) a majority of
the Directors (excluding any Director who is seeking advancement of expenses
hereunder or is or has been a party to any action, suit, investigation, or
proceeding involving claims similar to those involved in the action, suit,
investigation, or proceeding giving rise to a claim for advancement of
expenses hereunder) or independent legal counsel in a written opinion shall
determine based on a review of readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe such indemnitee ultimately
will be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation, or
proceeding (whether by a compromise payment, pursuant to a consent decree, or
otherwise) without an adjudication or a decision on the merits by a court of
competent jurisdiction, or by any other body before which the proceeding shall
have been brought, that an indemnitee is liable to the Fund or its Members by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office,
indemnification shall be provided pursuant to Section 3.7(a) hereof if: (i)
approved as in the best interests of the Fund by vote of a majority of the
Directors (excluding any Director who is seeking indemnification hereunder or
is or has been a party to any action, suit, investigation, or proceeding
involving claims similar to those involved in the action, suit, investigation,
or proceeding giving rise to a claim for advancement of expenses hereunder)
upon a determination based upon a review of readily available facts (as
opposed to a full trial-type inquiry) that such indemnitee acted in good faith
and in the reasonable belief that such actions were in the best interests of
the 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 office;
or (ii) the Directors secure a written opinion of independent legal counsel
based upon a review of readily available facts (as opposed to a full
trial-type inquiry) to the effect that such indemnitee acted in good faith and
in the reasonable belief that such actions were in the best interests of the
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 office.
(d) Any indemnification or advancement of expenses made pursuant to this
Section 3.7 shall not prevent the recovery from any indemnitee of any such
amount if such indemnitee subsequently shall be determined in a final decision
on the merits in a court of competent jurisdiction in any action, suit,
investigation, or proceeding involving the liability or expense that gave rise
to such indemnification or advancement of expenses to be liable to the Fund or
its Members by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of such indemnitee's
office. In any suit brought by an indemnitee to enforce a right to
indemnification under this Section 3.7 it shall be a defense that, and in any
suit in the name of the 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 indemnitee has not
met the applicable standard of conduct set forth in this Section 3.7. In any
such suit brought to enforce a right to indemnification or to recover any
indemnification or advancement of expenses made pursuant to this Section 3.7,
the burden of proving that the indemnitee is not entitled to be indemnified,
or to any indemnification or advancement of expenses, under this Section 3.7
shall be on the Fund (or any Member acting derivatively or otherwise on behalf
of the Fund or its Members).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 3.7 as to which he, she, or it
may otherwise be entitled except out of the assets of the Fund, and no Member
shall be personally liable with respect to any such claim for indemnification
or advancement of expenses.
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(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 Director or other person.
3.8 FEES, EXPENSES, AND REIMBURSEMENT.
(a) The Board may cause the Fund to compensate each Director for his or
her services hereunder. In addition, the Fund shall reimburse the Directors
for reasonable out-of-pocket expenses incurred by them in performing their
duties under this Agreement.
(b) The Fund shall bear all of its own operating expenses incurred in the
business of the Fund other than those specifically required to be borne by the
Investment Adviser or another party pursuant to a separate written agreement
with the Fund. Expenses to be borne by the Fund include, but shall not be
limited to: fees and expenses in connection with the organization of the Fund,
including offering expenses; brokerage commissions; interest and fees on any
borrowings by the Fund; fees and expenses of outside legal counsel (including
fees and expenses associated with review of documentation for prospective
investments by the Fund), including foreign legal counsel; independent
auditors' fees; fees and expenses in connection with repurchase offers and any
repurchases of Interests; taxes and governmental fees (including tax
preparation fees); administration and custody fees; expenses of preparing,
printing, and distributing offering memoranda and prospectuses, and any other
sales material (and any supplements or amendments thereto), reports, notices,
other communications to Members, and proxy materials; expenses of preparing,
printing, and filing reports and other documents with government agencies;
expenses of Members' meetings; expenses of corporate data processing and
related services; Member recordkeeping and Member account services, fees, and
disbursements; fees and expenses of the Directors not employed by the
Investment Adviser or its Affiliates, the Distributor, or their respective
affiliates; insurance premiums; extraordinary expenses such as litigation
expenses; and such other types of expenses as may be approved from time to
time by the Board. The Fund will also bear its allocable portion of the
operating expenses of any master fund in which it invests (directly or
indirectly), which expenses may include asset-based compensation payable to
the Investment Adviser.
(2) The Investment Adviser shall be entitled to reimbursement from
the Fund for any of the above expenses that it pays on behalf of the
Fund.
(c) Subject to procuring any required regulatory approvals, the Fund from
time to time, alone or in conjunction with other accounts for which the
Investment Adviser, or any Affiliate of the Investment Adviser, acts as
general partner, managing member, or investment adviser, may purchase
insurance in such amounts, from such insurers and on such terms as the Board
shall determine.
------------------------------------------
ARTICLE IV
TERMINATION OF STATUS OF INVESTMENT ADVISER AND DIRECTORS;
TRANSFERS, REPURCHASES, AND REDEMPTIONS
------------------------------------------
4.1 TERMINATION OF STATUS OF THE INVESTMENT ADVISER. The status of the
Investment Adviser shall terminate if the Investment Management Agreement with
the Investment Adviser terminates and the Master Fund does not enter into a
new Investment Management Agreement with the Investment Adviser, effective as
of the date of such termination.
4.2 TERMINATION OF STATUS OF A DIRECTOR. The status of a Director shall
terminate if the Director: (i) shall die; (ii) shall be adjudicated
incompetent; (iii) shall voluntarily withdraw as a Director (upon not less
than 90 days' prior written notice to the other Directors, unless the other
Directors waive such notice); (iv) shall be removed; (v) shall be certified by
a physician to be mentally or physically unable to perform his or her duties
hereunder; (vi) shall be declared bankrupt by a court with appropriate
jurisdiction, file a petition commencing a
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voluntary case under any bankruptcy law, or make an assignment for the benefit
of creditors; or (vii) shall have a receiver appointed to administer the
property or affairs of such Director.
4.3 REMOVAL OF THE DIRECTORS. Any Director may be removed by: (i) the
vote or written consent of at least two-thirds (2/3) of the Directors not
subject to the removal or vote; or (ii) the vote or written consent of Members
holding not less than two-thirds (2/3) of the total number of votes eligible
to be cast by all Members.
4.4 TRANSFER OF INTERESTS OF MEMBERS.
(a) An Interest held by a Member may be transferred in whole or in part
only: (i) by operation of law pursuant to the death, divorce, bankruptcy,
insolvency, or dissolution of such Member; or (ii) under extremely limited
circumstances, with the written consent of the Board (which may be withheld
for any reason in its sole and absolute discretion). If any transferee does
not meet such investor eligibility requirements, the Fund reserves the right
to redeem its Interest. If the Board does not consent to a transfer by
operation of law, the Fund shall redeem the Interest from the Member's
successor. Any transfer must comply with the Securities Act. The Board
generally will not consent to a transfer unless the transfer is: (i) one in
which the tax basis of the Interest in the hands of the transferee is
determined, in whole or in part, by reference to its tax basis in the hands of
the transferring Member (e.g.,. certain gifts and contributions to family
entities); or (ii) to members of the transferring Member's immediate family
(siblings, spouse, parents, and children). The foregoing permitted transferees
will not be allowed to become substituted Members without the consent of the
Board, which may be withheld in its sole and absolute discretion. Each
transferring Member and transferee agrees to pay all expenses, including, but
not limited, to attorneys' and accountants' fees, incurred by the Fund in
connection with any transfer.
(b) By subscribing for an Interest, each Member agrees to indemnify and
hold harmless the Fund, the Board, the Investment Adviser, or each other
Member, and any Affiliate of the foregoing against all losses, claims,
damages, liabilities, costs, and expenses (including legal or other expenses
incurred in investigating or defending against any losses, claims, damages,
liabilities, costs, and expenses or any judgments, fines, and amounts paid in
settlement), joint or several, to which such persons may become subject by
reason of or arising from any transfer made by that Member in violation of
this Section 4.4 or any misrepresentation made by that Member in connection
with any such transfer.
(c) Each transferring Member shall indemnify and hold harmless the Fund,
the Board, the Investment Adviser, or each other Member and any Affiliate of
the foregoing against all losses, claims, damages, liabilities, costs, and
expenses (including legal or other expenses incurred in investigating or
defending against any such losses, claims, damages, liabilities, costs, and
expenses or any judgments, fines, and amounts paid in settlement), joint or
several, to which such persons may become subject by reason of or arising
from: (i) any transfer made by such Member in violation of this Section 4.4;
and (ii) any misrepresentation by such Member in connection with any such
transfer.
(d) The Special Advisory Member may not transfer its Interest.
4.5 REPURCHASE OF INTERESTS.
(a) General. Except as otherwise provided in this Agreement, no Member or
other person holding an Interest or portion thereof shall have the right to
require the Fund to redeem its Interest. The Board of the Fund, from time to
time, and in its sole and absolute discretion, may determine to cause the Fund
to offer to repurchase Interests from Members, including the Investment
Adviser, on such terms and conditions as set forth in this Agreement. However,
the Fund shall not offer to repurchase Interests (including the Interest held
by the Special Advisory Member) on more than two occasions during any one
Fiscal Year unless it has been advised by counsel to the Fund to the effect
that more frequent offers would not cause any adverse tax consequences to the
Fund or its Members. In accordance with the terms and conditions as are set
forth in this Agreement, in determining whether to cause the Fund to
repurchase Interests pursuant to written requests by Members, the Board shall
consider, among other things, the recommendation of the Investment Adviser and
shall also consider the following factors, among others, in making such
determination:
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(1) whether any Members have requested that the Fund repurchase
their Interests;
(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 Interests;
(6) the economic condition of the securities markets; or
(7) the anticipated tax consequences of any proposed repurchases of
Interests.
(b) Discretionary Repurchases. The Board shall cause the Fund to
repurchase Interests on terms fair to the Fund and to all Members or one or
more classes of Members (including persons holding Interests acquired from
Members), as applicable, in the following manner:
(1) The Board will provide written notice to Members when it has
determined, in its sole and absolute discretion, that the Fund will
repurchase Interests. Such notice will describe the terms of the
repurchase offer, including:
(i) the commencement date of the repurchase offer;
(ii) the date on which repurchase requests must be received by
the Fund (the "Repurchase Request Date"); and
(iii) other information that Members should consider in
deciding whether and how to participate in such repurchase
opportunity.
(2) Members must submit, in writing, requests for repurchase to the
Fund or its designated agent. The Repurchase Request Date will be a date
set by the Board occurring no sooner than 20 business days after the
commencement date of the repurchase offer and such Repurchase Request
Date may be extended by the Board in its sole and absolute discretion.
The Fund will not accept any repurchase request received by it or its
designated agent after the Repurchase Request Date.
(3) Payment for Interests, accepted by the Fund for repurchase will
be made in whole or in part in accordance with Section 4.5(b)(6). The
amount due to any Member whose Interest is repurchased will be equal to
the value of the Member's Capital Account or relevant portion thereof
based on the estimated unaudited net asset value of the Fund's assets as
of the effective date of repurchase (the "Repurchase Valuation Date"),
after giving effect to all allocations to be made to the Member's Capital
Account as of such date. The Repurchase Valuation Date will be
approximately one month after the Repurchase Request Date.
(4) The Fund may suspend or postpone any repurchase offer, by vote
of a majority of the Board, including a majority of the Independent
Directors, including but not limited to:
(i) for any period during which an emergency exists as a result
of which it is not reasonably practicable for the Fund to dispose of
securities it owns or to determine the value of the Fund's nets
assets;
(ii) for any other periods that the SEC permits by order for
the protection of Members; or
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(iii) under such other unusual circumstances as the Board deems
advisable for the benefit of the Fund and its Members.
(5) The Board, in its sole and absolute discretion, shall determine
the amount of Interests to be repurchased, if any. If a greater amount of
Interests is submitted for repurchase by Members as of the Repurchase
Request Date than the repurchase offer amount, as determined by the Board
in its sole and absolute discretion, the Fund may repurchase an
additional amount of Interests not to exceed 2% of the Interests
outstanding on the Repurchase Request Date. If the Board determines not
to repurchase more than the repurchase offer amount or if Members submit
for repurchase Interests in an amount exceeding the repurchase offer
amount plus 2% of the Interests outstanding on the Repurchase Request
Date, the Fund shall repurchase the Interests submitted for repurchase on
a pro rata basis, disregarding fractions, according to the amount of
Interests submitted for repurchase by each Member as of the Repurchase
Request Date; provided, however, that this provision shall not prohibit
the Fund from:
(i) accepting all Interests submitted for repurchase by Members
who own, beneficially or of record, an aggregate of not more than a
specified percentage of such Interest and who submit for repurchase
all their Interest, before prorating Interests submitted for
repurchase by other Members; or
(ii) accepting by lot Interests submitted for repurchase by
Members who offer all the Interest held by them or who, when
submitting for repurchase their Interest, elect to have either all
or none or at least a minimum amount or none accepted, if the Fund
first accepts all Interests submitted for repurchase by Members who
do not so elect.
(6) Repurchases of Interests or portions thereof by the Fund shall
be payable after the date of each such repurchase or, in the case of an
offer by the Fund to repurchase Interests, after the expiration date of
such repurchase offer in accordance with the terms of such offer. Payment
of the purchase price for an Interest (or portion thereof) shall be made
within five days of the relevant Repurchase Request Date, and shall
consist of cash or a promissory note, which need not bear interest, in an
amount equal to 100% of the unaudited net asset value of the portion of
the Interest redeemed. Notwithstanding the foregoing, if a Member has
requested the repurchase of 90% or more of the Interest held by such
Member, such Member shall receive: (i) cash or a promissory note, which
need not bear interest, in an amount equal to 90% of the estimated
unaudited net asset value of the Interest (or portion thereof)
repurchased by the Fund determined as of the Repurchase Valuation Date
(the "Initial Payment"); (ii) a promissory note entitling the holder
thereof to the balance of the proceeds, to be paid following the
expiration of the later of (x) 90 days following the applicable
Repurchase Valuation Date, so as to effectuate an orderly liquidation of
enough Investment Funds in which the Fund is invested or otherwise, or
(y) such longer period as the Board of Directors in its discretion deems
necessary to protect the interests of the remaining Members.
Notwithstanding anything in the foregoing to the contrary, the Board of
Directors, in its 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 Repurchase Valuation Date, equal to the amount to be
repurchased; provided that the Board of Directors, in its discretion, may
make payment of the purchase price for an Interest by in-kind
distribution of Securities held by the Fund. The purchase price of an
Interest will be determined as of the Repurchase Valuation Date.
(7) The Board may, in its sole and absolute discretion, elect to
impose charges on Members or other persons who submit their Interests for
repurchase. The Board may also, in its sole and absolute discretion,
allocate to tendering Members withdrawal or similar charges imposed by
Investment Funds if the Fund has requested withdrawal of its capital from
any Investment Funds in order to fund the repurchase of Interests and
such charges were imposed on the Fund.
(8) A Member who submits for repurchase only a portion of such
Member's Interest shall be required to maintain a Capital Account balance
at least equal to $25,000.
(9) The Investment Adviser may submit for repurchase its Interest as
a Member under Section 4.5 hereof.
B-14
(10) If the Investment Adviser's status as a Special Advisory Member
is terminated, it (or its trustee or other legal representative) may, by
written notice to the Board within 60 days of the effective date of such
termination, tender to the Fund for repurchase all or any portion of its
Capital Account. Not later than 30 days after the receipt of such notice,
the Board shall cause the tendered portion of the Capital Account to be
repurchased by the Fund for cash.
(c) Mandatory Redemptions. The Board may cause the Fund to redeem the
Interest of a Member or of any person acquiring such an Interest from or
through a Member in the event that the Board determines or has reason to
believe that, among other things:
(1) such Interest has been transferred or such Interest has vested
in any person by operation of law as a result of the death, dissolution,
bankruptcy, or incompetency of a Member;
(2) ownership of such Interest by a Member or other person will
cause the Fund to be in violation of, or require registration of any
Interests, or subject the Fund or the Investment Adviser to additional
registration or regulation under, the securities, commodities, or other
laws of the United States or any other relevant jurisdiction;
(3) continued ownership of such Interest may be harmful or injurious
to the business or reputation of the Fund or the Investment Adviser, or
may subject the Fund or any of its Members to an undue risk of adverse
tax or other fiscal consequences;
(4) for any period during which an emergency exists as a result of
which it is not reasonably practicable for the Fund to dispose of
securities it owns or to determine the value of the Fund's net assets;
(5) any representation or warranty made by a Member in connection
with the acquisition of such Interest was not true when made or has
ceased to be true; or
(6) it would be in the best interests of the Fund, as determined by
the Board in its sole and absolute discretion, for the Fund to redeem
such Interest.
------------------------------------------
ARTICLE V
CAPITAL
------------------------------------------
5.1 CONTRIBUTIONS TO CAPITAL.
(a) The minimum Capital Contribution of each Member to the capital of the
Fund shall be such amount as the Board in its sole and absolute discretion may
determine from time to time. The amount of the initial Capital Contribution of
each Member shall be recorded on the books and records of the Fund upon
acceptance as a contribution to the capital of the Fund. The Directors shall
not be entitled to make voluntary contributions of capital to the Fund as
Directors of the Fund, but may make voluntary contributions to the capital of
the Fund as Members. The Investment Adviser may make voluntary contributions
to the capital of the Fund as a Member.
(b) If permitted by the Board, a Member and the Investment Adviser, as a
Member, may make additional Capital Contributions of the Fund, effective as of
such times as the Board in its discretion may permit, subject to the
limitations applicable to the admission of Members pursuant to this Agreement.
No Member shall be obligated to make any additional Capital Contribution
except to the extent provided in this Agreement.
(c) Except as otherwise permitted by the Board, initial and any
additional contributions to the capital of the Fund by any Member shall be
payable in cash.
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(d) The minimum initial and additional Capital Contributions may be
increased or reduced by the Board.
(e) The Fund shall increase the Interest of any Member making an
additional Capital Contribution.
5.2 RIGHTS OF MEMBERS TO CAPITAL.
No Member shall be entitled to interest on his or its contribution to the
capital of the Fund, nor shall any Member be entitled to the return of any
capital of the Fund except as otherwise specifically provided herein. No
Member shall be liable for the return of any such amounts. No Member shall
have the right to require partition of the Fund's property or to compel any
sale or appraisal of the Fund's assets.
5.3 CAPITAL ACCOUNTS.
(a) The Fund shall maintain a separate Capital Account for each Member.
(b) Each Member's Capital Account shall have an initial balance equal to
the amount of cash constituting such Member's Net Capital Contribution.
(c) Each Member's Capital Account shall be increased by the sum of: (i)
the amount of cash constituting additional contributions by such Member to the
capital of the Fund permitted pursuant to Section 5.1; plus (ii) any amount
credited to such Member's Capital Account pursuant to this Article V.
(d) Each Member's Capital Account shall be reduced by the sum of: (i) the
amount of any repurchase of the Interest, or portion thereof, of such Member
or distributions to such Member pursuant to this Agreement; plus (ii) any
amounts debited against such Member's Capital Account pursuant to this Article
V.
(e) If all or a portion of the Interest of a Member is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to
the Capital Account of the transferor to the extent it relates to the
transferred Interest or relevant portion thereof.
5.4 ALLOCATION OF NET PROFIT AND LOSS.
As of the last day of each Fiscal Period, any Net Profit or Net Loss for
the Fiscal Period shall be allocated among and credited to or debited against
the Capital Accounts of the Members (including the Capital Account of the
Special Advisory Member) in accordance with their respective Fund Percentages
for such Fiscal Period.
5.5 INCENTIVE ALLOCATION
(a) Subject to the provisions of the 1940 Act and the Advisers Act, at
the end of each Performance Period (as defined below), a reallocation (the
"Incentive Allocation") will be made from the Capital Account of each Member
(other than the Special Advisory Member) to the Capital Account of the Special
Advisory Member. The Incentive Allocation will be calculated separately with
respect to each Member's Capital Account and will be equal to 10% of the
amount, if any, by which (i) the Net Profit, if any, initially allocated to
such Member's Capital Account during such Performance Period in excess of the
Hurdle (as defined below) for such Performance Period exceeds (ii) the
positive balance, if any, as of the beginning of such Performance Period in
such Member's Loss Carryforward Account (as defined below). Each "Performance
Period" shall commence on either the initial Closing for such Interest and/or
the first day immediately following the end of the immediately preceding
Performance Period, as the case may be, and shall end on March 31 of each year
(beginning March 31, 2005), as of the date of any partial or complete
withdrawal of Interests with respect to the portion withdrawn and upon
termination of the Fund. The "Hurdle Rate" for any Performance Period with
respect to any Capital Account shall be calculated monthly and equals the
average of the weekly average 90-day U.S. Treasury bill rates for that month
as reported in the Federal Reserve Bulletin H-15 (or other available source)
during such month. The "Hurdle" shall be recalculated for each Performance
Period and shall be equal to the product of (x) the average of the Hurdle
Rates during such Performance Period and (y) the balance of such Capital
Account at the beginning of such Performance
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Period; provided, that the Hurdle shall be adjusted appropriately for
additional Capital Contributions or repurchases made in respect of the
relevant Member during such Performance Period.
(b) For purposes of calculating the Incentive Allocation, there shall be
established for each Capital Account a corresponding memorandum account each
of which shall be designated a "Loss Carryforward Account." Each Loss
Carryforward Account shall have an initial balance of zero and shall be
adjusted as follows: as of the last day of each time period described in Sec.
5.4, the balance of such Loss Carryforward Account shall be increased by the
aggregate amount of Net Loss, if any, allocable to such Capital Account with
respect to such time period and shall be decreased (but not below zero) by the
aggregate amount of Net Profit, if any, allocable to such Capital Account with
respect to such time period. In the event of a withdrawal from or distribution
to a Member from a Capital Account, the corresponding Loss Carryforward
Account shall be further adjusted as of the date such withdrawal or
distribution is effective by decreasing any positive balance of such Loss
Carryforward Account (but not below zero) by an amount determined by
multiplying (i) such positive balance by (ii) a fraction, of which (y) the
numerator is equal to the amount withdrawn or distributed and (z) the
denominator is equal to the balance of such Capital Account immediately before
giving effect to such withdrawal or distribution.
(c) For the purposes of calculating an Incentive Allocation or a Loss
Carryforward Account, Net Profit and Net Loss allocable to any Capital Account
for any Performance Period shall be calculated by taking into account the
amount of any Advisory Fee debited from such Member's Capital Account for such
Performance Period.
(d) The Manager shall have the right to amend, with the consent of the
Members, this Section 5.5 so that the Incentive Allocation conforms to any
applicable requirements of the SEC and other regulatory authorities; provided,
however, that no such amendment shall increase the Incentive Allocation
applicable to any Member at the time of such amendment.
5.6 ALLOCATION OF CERTAIN WITHHOLDING TAXES AND OTHER EXPENDITURES.
(a) If the Fund incurs a withholding tax or other tax obligation with
respect to the share of Fund income allocable to any Member, then the Board,
without limitation of any other rights of the Fund or the Board, shall cause
the amount of such obligation to be debited against the Capital Account of
such Member when the Fund pays such obligation, and any amounts then or
thereafter distributable to such Member shall be reduced by the amount of such
taxes. If the amount of such taxes is greater than any such distributable
amounts, then such Member and any successor to such Member's Interest shall
pay to the Fund as a contribution to the capital of the Fund, upon demand of
the Fund, the amount of such excess. The Fund shall not be obligated to apply
for or obtain a reduction of or exemption from withholding tax on behalf of
any Member that may be eligible for such reduction or exemption; provided,
that in the event that the Fund determines that a Member is eligible for a
refund of any withholding tax, the Fund may, at the request and expense of
such Member, assist such Member in applying for such refund.
(b) Except as otherwise provided for in this Agreement and unless
prohibited by the 1940 Act, any expenditures payable by the Fund, to the
extent determined by the Board to have been paid or withheld on behalf of, or
by reason of particular circumstances applicable to, one or more but fewer
than all of the Members, shall be charged to only those Members on whose
behalf such payments are made or whose particular circumstances gave rise to
such payments. Such charges shall be debited from the Capital Accounts of such
Members as of the close of the Fiscal Period during which any such items were
paid or accrued by the Fund.
5.7 RESERVES.
(a) Appropriate reserves may be created, accrued, and charged against Net
Assets and proportionately against the Capital Accounts of the Members for
contingent liabilities, if any, as of the date any such contingent liability
becomes known to the Investment Adviser or the Board, such reserves to be in
the amounts which the Board in its sole and absolute discretion deems
necessary or appropriate. The Board may increase or reduce any such reserves
from time to time by such amounts as it in its sole and absolute discretion
deems necessary or appropriate. The amount of any such reserve, or any
increase or decrease
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therein, may be proportionately charged or credited, as appropriate, to the
Members' Capital Accounts. The amount of any such reserve, or any increase or
decrease therein, may be proportionately charged or credited, as appropriate,
to the Capital Accounts of those parties who are Members at the time when such
reserve is created, increased, or decreased, as the case may be; provided,
however, that if any such individual reserve item, adjusted by any increase
therein, exceeds the lesser of $500,000 or 1% of the aggregate value of the
Capital Accounts of all such Members, the amount of such reserve, increase, or
decrease shall instead be charged or credited to those parties who were
Members at the time, as determined by the Board in its sole and absolute
discretion, of the act or omission giving rise to the contingent liability for
which the reserve was established, increased, or decreased in proportion to
their Capital Accounts at that time.
(b) To the extent permitted under applicable law, if at any time an
amount is paid or received by the Fund (other than contributions to the
capital of the Fund, distributions, or repurchases of Interests or portions
thereof) and such amount exceeds the lesser of $500,000 or 1% of the aggregate
value of the Capital Accounts of all Members at the time of payment or receipt
and such amount was not accrued or reserved for but would nevertheless, in
accordance with the Fund's accounting practices, be treated as applicable to
one or more prior Fiscal Periods, then such amount shall be proportionately
charged or credited, as appropriate, to those parties who were Members during
such prior Fiscal Period or Periods.
(c) To the extent permitted under applicable law, if any amount is
required by paragraph (a) or (b) of this Section 5.7 to be charged or credited
to a party who is no longer a Member, such amount shall be paid by or to such
party, as the case may be, in cash, with interest from the date on which the
Board determines that such charge or credit is required. In the case of a
charge, the former Member shall be obligated to pay the amount of the charge,
plus interest as provided above, to the Fund on demand; provided, however,
that: (i) in no event shall a former Member be obligated to make a payment
exceeding the amount of such Member's Capital Account at the time to which the
charge relates; and (ii) no such demand shall be made after the expiration of
three years since the date on which such party ceased to be a Member. To the
extent that a former Member fails to pay to the Fund, in full, any amount
required to be charged to such former Member pursuant to paragraph (a) or (b),
whether due to the expiration of the applicable limitation period or for any
other reason whatsoever, the deficiency shall be charged proportionately to
the Capital Accounts of the Members at the time of the act or omission giving
rise to the charge to the extent feasible, and otherwise proportionately to
the Capital Accounts of the current Members.
5.8 TAX ALLOCATIONS.
(a) For each Fiscal Year, items of income, deduction, gain, loss, or
credit shall be allocated for income tax purposes among the Members in such a
manner as to reflect equitably amounts credited or debited to each Member's
Capital Account for the current and prior Fiscal Years (or relevant portions
thereof). Allocations under this Section 5.8 shall be made pursuant to the
principles of Sections 704(b) and 704(c) of the Code, and in conformity with
Treasury Regulations Sections 1.704-1(b)(2)(iv)(f), 1.704-1(b)(4)(i), and
1.704-3(e) promulgated thereunder, as applicable, or the successor provisions
to such Section and Regulations. Notwithstanding anything to the contrary in
this Agreement, there shall be allocated to the Members such gains or income
as shall be necessary to satisfy the "qualified income offset" requirement of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
(b) If the Fund realizes gains for Federal income tax purposes for any
Fiscal Year during or as of the end of which one or more Positive Basis
Members (as hereinafter defined) withdraws from the Fund pursuant to Articles
IV or VI hereof or, in the case of the Special Advisory Member, receives an
Incentive Allocation that creates a Positive Basis (as hereinafter defined),
the Board, in its sole and absolute discretion, may elect to allocate such
gains as follows: (i) to allocate such gains among such Positive Basis
Members, pro rata in proportion to the respective Positive Basis of each such
Positive Basis Member, until either the full amount of such gains shall have
been so allocated or the Positive Basis of each such Positive Basis Member
shall have been eliminated; and (ii) to allocate any gains not so allocated to
Positive Basis Members to the other Members in such manner as shall equitably
reflect the amounts credited to such Members' Capital Accounts pursuant to
this Agreement.
(c) If the Fund realizes losses for Federal income tax purposes for any
Fiscal Year during or as of the end of which one or more Negative Basis
Members (as hereinafter defined) withdraws from the Fund pursuant to Articles
IV or VI hereof, the Board, in its sole and absolute discretion, may elect to
allocate such losses as follows: (i) to allocate losses among such Negative
Basis Members, pro rata in proportion to the respective Negative Basis (as
hereinafter defined) of each such Negative Basis Member, until either the full
amount of such losses have been so allocated or the Negative Basis of each
such Negative Basis Member shall have been eliminated; and (ii) to
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allocate losses not so allocated to Negative Basis Members to the other
Members in such manner as shall equitably reflect the amounts credited to such
Members' Capital Accounts pursuant to this Agreement.
(d) As used herein: (i) the term "Positive Basis" shall mean, with
respect to any Member (including the Special Advisory Member) and as of any
time of calculation, the amount by which the total of such Member's Capital
Account as of such time exceeds its "adjusted tax basis," for Federal income
tax purposes, in its Interest as of such time (determined without regard to
any adjustments made to such "adjusted tax basis" by reason of any transfer or
assignment of such Interest, including by reason of death and without regard
to such Member's share of the liabilities of the Fund under Section 752 of the
Code); (ii) the term "Positive Basis Member" shall mean any Member who
withdraws from the Fund and who has a Positive Basis as of the effective date
of its withdrawal or, in the case of the Special Advisory Member, receives an
Incentive Allocation that creates a Positive Basis for such Special Advisory
Member as of the date of receipt of such Incentive Allocation, but such Member
shall cease to be a Positive Basis Member at such time as it shall have
received allocations pursuant to clause (i) of the Section 5.8(b) above equal
to its Positive Basis as of the effective date of its withdrawal, or, in the
case of the Special Advisory Member, as of the date of receipt of such
Incentive Allocation; (iii) the term "Negative Basis" shall mean, with respect
to any Member (including the Special Advisory Member) and as of any time of
calculation, the amount by which the total of such Member's Capital Account as
of such time is less than its "adjusted tax basis," for Federal income tax
purposes, in its Interest as of such time (determined without regard to any
adjustments made to such "adjusted tax basis" by reason of any transfer or
assignment of such Interest, including by reason of death and without regard
to such Member's share of the liabilities of the Fund under Section 752 of the
Code); and (iv) the term "Negative Basis Member" shall mean any Member who
withdraws from the Fund and who has a Negative Basis as of the effective date
of its withdrawal but such Member shall cease to be a Negative Basis Member at
such time as it shall have received allocations pursuant to clause (i) of
Section 5.8(c) above equal to its Negative Basis as of the effective date of
its withdrawal.
5.9 DISTRIBUTIONS.
(a) The Board, in its sole and absolute discretion, may authorize the
Fund to make distributions in cash at any time to all of the Members on a pro
rata basis in accordance with each Member's Fund Percentage.
(b) The Board may withhold and pay over to the Internal Revenue Service
(or any other relevant taxing authority) taxes from any distribution to any
Member to the extent required by the Code or any other applicable law. For
purposes of this Agreement, any taxes so withheld by the Fund with respect to
any amount distributed by the Fund to any Member shall be deemed to be a
distribution or payment to such Member, reducing the amount otherwise
distributable to such Member pursuant to this Agreement and, if appropriate,
reducing the Capital Account of such Member. If the amount of such taxes is
greater than any such distributable amounts, then such Member and any
successor to such Member's Interest shall pay to the Fund as a contribution to
the capital of the Fund, upon demand of the Board, the amount of such excess.
(c) The Board shall not be obligated to apply for or obtain a reduction
of or exemption from withholding tax on behalf of any Member that may be
eligible for such reduction or exemption. To the extent that a Member claims
to be entitled to a reduced rate of, or exemption from, a withholding tax
pursuant to an applicable income tax treaty, or otherwise, the Member shall
furnish the Board with such information and forms as such Member may be
required to complete where necessary to comply with any and all laws and
regulations governing the obligations of withholding tax agents. Each Member
represents and warrants that any such information and forms furnished by such
Member shall be true and accurate and agrees to indemnify the Fund and each of
the Members from any and all damages, costs, and expenses resulting from the
filing of inaccurate or incomplete information or forms relating to such
withholding taxes.
(d) Notwithstanding anything to the contrary contained herein, none of
the Directors or the Members, nor any other person on behalf of the Fund,
shall make a distribution to the Members on account of their interests in the
Fund if such distribution would violate the Delaware Act or other applicable
law.
(e) The amount and times of any distributions will be determined in the
sole and absolute discretion of the Board.
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5.10 ALLOCATION OF ORGANIZATIONAL, OFFERING, AND CERTAIN OTHER EXPENSES.
Organizational Expenses shall generally be amortized over the first fiscal
year of the Fund's operations. Offering Expenses, and any other expenses in
connection with offering Interests of the Fund and/or any expenses related to
or in connection with any transfer of Interests and/or repurchasing Interests
pursuant to Section 4.5, shall generally be treated as expenses of the Fund
included in the computation of Net Profit and/or Net Loss (except to the
extent that the Investment Adviser or another party determines in its
discretion that it will assume, reimburse, and/or waive such expense). The
Board may alternatively choose to amortize such expenses over a period of time
to be determined by the Board. The Board may also allocate organizational and
offering expenses (on an Expense Allocation Date or on such other date chosen
by the Board) among the Members in a manner that allocates such expenses to
Members purchasing Interests in one or more offerings of Interests. The Board
may also allocate expenses of any transfer of Interests to either the
transferor and/or transferee and expenses of any repurchase of Interests may
be allocated to the Members whose Interests are repurchased.
------------------------------------------
ARTICLE VI
DISSOLUTION AND LIQUIDATION
------------------------------------------
6.1 DISSOLUTION.
(a) The Fund shall be dissolved at any time there are no Members, unless
the Fund is continued in accordance with the Delaware Act, or upon the
occurrence of any of the following events:
(i) upon the affirmative vote to dissolve the Fund by: (i) the
Board; or (ii) Members holding at least two-thirds (2/3) of the
total number of votes eligible to be cast by all Members;
(ii) upon the failure of Members to elect a successor Board
member at a meeting called by the Investment Adviser in accordance
with this Agreement when no Board member remains to continue the
business of the Fund;
(iii) if any Member that has submitted a written request, in
accordance with the terms of the Operating Agreement, to tender all
of such Member's Interest for repurchase by the Fund has not been
given the opportunity to so tender within a period of two years
after the request (whether in a single repurchase offer or multiple
consecutive offers within the two-year period), provided, however,
that a Member who intends to cause the Fund to be dissolved must so
indicate in a separate written request submitted within the
applicable two-year period; or
(iv) as required by operation of law.
(b) Dissolution of the Fund shall be effective on the day on which the
event giving rise to the dissolution shall occur or the conclusion of any
applicable 60 day period during which the Board and Members may elect to
continue the business of the Fund as provided herein, but the Fund shall not
terminate until the assets of the Fund have been liquidated in accordance with
Section 6.2 hereof and the Certificate has been canceled.
6.2 LIQUIDATION OF ASSETS.
(a) Upon the dissolution of the Fund as provided in Section 6.1 hereof,
the Board, acting directly or through a liquidator it selects, shall promptly
liquidate the business and administrative affairs of the Fund, except that if
the Board is unable to perform this function, a liquidator elected by Members
holding a majority of the total number of votes eligible to be cast by all
Members shall promptly liquidate the business and administrative affairs of
the Fund. Net Profit and Net Loss during the period of liquidation shall be
allocated pursuant to Article V. The proceeds from liquidation (after
establishment of appropriate reserves for contingencies in such amount as the
Board
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or liquidator shall deem appropriate in its sole and absolute discretion as
applicable) shall, subject to the Delaware Act, be distributed in the
following manner:
(i) in satisfaction (whether by payment or the making of
reasonable provision for payment thereof) of the debts and
liabilities of the Fund, including the expenses of liquidation
(including legal and accounting expenses incurred in connection
therewith), but not including debt and liabilities to Members, up to
and including the date that distribution of the Fund's assets to the
Members has been completed, shall first be paid on a pro rata basis;
(ii) such debts, liabilities, or obligations as are owing to
the Members shall be paid next in their order of seniority and on a
pro rata basis;
(iii) the Special Advisory Member shall be paid next any
positive balance in its Capital Account after giving effect to the
Incentive Allocation, if any, to be made pursuant to Section 5.5(a)
hereof; and
(iv) the Members shall be paid next on a pro rata basis the
positive balances of their respective Capital Accounts after giving
effect to all allocations to be made to such Members' Capital
Accounts for the Fiscal Period ending on the date of the
distributions under this Section 6.2(a)(iv).
(b) Anything in this Section 6.2 to the contrary notwithstanding, but
subject to the priorities set forth in Section 6.2(a) above, upon dissolution
of the Fund, the Board or other liquidator may distribute ratably in kind any
assets of the Fund; provided, however, that if any in-kind distribution is to
be made: (i) the assets distributed in kind shall be valued pursuant to
Section 7.3 as of the actual date of their distribution and charged as so
valued and distributed against amounts to be paid under Section 6.2(a) above;
and (ii) any profit or loss attributable to property distributed in-kind shall
be included in the Net Profit or Net Loss for the Fiscal Period ending on the
date of such distribution.
------------------------------------------
ARTICLE VII
ACCOUNTING, VALUATIONS, AND BOOKS AND RECORDS
------------------------------------------
7.1 ACCOUNTING AND REPORTS.
(a) The Fund shall adopt for tax accounting purposes any accounting
method that the Board shall decide in its sole and absolute discretion is in
the best interests of the Fund. The Fund's accounts shall be maintained in
U.S. currency.
(b) After the end of each taxable year, the Fund shall furnish to each
Member such information regarding the operation of the Fund and such Member's
Interest as is necessary for Members to complete Federal and state income tax
or information returns and any other tax information required by federal,
state, or local law.
(c) Except as otherwise required by the 1940 Act or as may otherwise be
permitted by rule, regulation, or order, within 60 days after the close of the
period for which a report required under this Section 7.1(c) is being made,
the Fund shall furnish to each Member a semi-annual report containing the
information required by the 1940 Act and an annual report containing the
information required by the 1940 Act. The 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 also furnish to each Member such other periodic reports as it
deems necessary or appropriate in its discretion.
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7.2 DETERMINATIONS BY THE BOARD.
(a) All matters concerning the determination and allocation among the
Members of the amounts to be determined and allocated pursuant to Article V
hereof, including any taxes thereon and accounting procedures applicable
thereto, shall be determined by the Board (either directly or by the
Investment Adviser pursuant to delegated authority) unless specifically and
expressly otherwise provided for by the provisions of this Agreement or as
required by law, and such determinations and allocations shall be final and
binding on all the Members.
(b) The Board may make such adjustments to the computation of Net Profit
or Net Loss or any components (withholding any items of income, gain, loss, or
deduction) comprising any of the foregoing as it considers appropriate to
reflect fairly and accurately the financial results of the Fund and the
intended allocation thereof among the Members.
7.3 VALUATION OF ASSETS.
(a) Valuation of Securities and other assets shall be made by the Board
in accordance with the requirements of the 1940 Act and the valuation
procedures adopted by the Board.
(b) The value of Securities and other assets of the Fund and the net
worth of the Fund as a whole and the Interests determined pursuant to this
Section 7.3 shall be conclusive and binding on all of the Members and all
parties claiming through or under them.
------------------------------------------
ARTICLE VIII
MISCELLANEOUS PROVISIONS
------------------------------------------
8.1 AMENDMENT OF LIMITED LIABILITY COMPANY OPERATING AGREEMENT.
(a) Except as otherwise provided in this Section 8.1, this Agreement may
be amended, in whole or in part, with the approval of: (i) the Board
(including the vote of a majority of the Independent Directors, if required by
the 1940 Act); or (ii) a majority (as defined in the 1940 Act) of the
outstanding voting securities of the Fund.
(b) Any amendment that would:
(i) increase the obligation of a Member to make any
contribution to the capital of the Fund;
(ii) reduce the Capital Account of a Member other than in
accordance with Article V; or
(iii) modify the events causing the dissolution of the Fund
may be made only if: (i) the written consent of each Member adversely
affected thereby is obtained prior to the effectiveness thereof; or (ii)
such amendment does not become effective until (A) each Member has
received written notice of such amendment and (B) any Member objecting to
such amendment has been afforded a reasonable opportunity (pursuant to
such procedures as may be prescribed by the Board) to offer his or her
entire Interest for repurchase by the Fund.
(c) The power of the Board to amend this Agreement at any time without
the consent of the Members may include, but is not limited to:
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(i) restate this Agreement together with any amendments hereto
that have been duly adopted in accordance with this Agreement to
incorporate such amendments in a single, integrated document;
(ii) amend this Agreement (other than with respect to the
matters set forth in Section 8.1(b) hereof) to effect compliance
with any applicable law or regulation or to cure any ambiguity or to
correct or supplement any provision hereof that may be inconsistent
with any other provision hereof, provided that such action does not
adversely affect the rights of any Member in any material respect;
and
(iii) amend this Agreement to make such changes as may be
necessary or desirable, based on advice of legal counsel to the
Fund, to assure the Fund's continuing eligibility to be classified
for U.S. Federal income tax purposes as a partnership that is not
treated as a corporation under Section 7704(a) of the Code.
(d) The Board shall give written notice of any proposed amendment to this
Agreement (other than any amendment of the type contemplated by clause (i) of
Section 8.1(a) hereof) to each Member, which notice shall set forth: (i) the
text of the proposed amendment; or (ii) a summary thereof and a statement that
the text thereof will be furnished to any Member upon request.
8.2 SPECIAL POWER OF ATTORNEY.
(a) Each Member hereby irrevocably makes, constitutes, and appoints each
Director, acting severally, and any liquidator of the Fund's assets appointed
pursuant to Section 6.2 with full power of substitution, the true and lawful
representatives and attorneys-in-fact of, and in the name, place, and stead
of, such Member, with the power from time to time to make, execute, sign,
acknowledge, swear to, verify, deliver, record, file, and/or publish:
(i) any amendment to this Agreement that complies with the
provisions of this Agreement (including the provisions of Section
8.1 hereof);
(ii) any amendment to the Certificate required because this
Agreement is amended or as otherwise required by the Delaware Act;
and
(iii) all other such instruments, documents, and certificates
that, in the opinion of legal counsel to the Fund, from time to time
may be required by the laws of the United States of America, the
State of Delaware, or any other jurisdiction in which the 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 which may be necessary or appropriate to
permit such amendment to be made or action lawfully taken or omitted. Each
Member is fully aware that each Member will rely on the effectiveness of this
special power-of-attorney with a view to the orderly administration of the
affairs of the Fund.
(c) This power-of-attorney is a special power-of-attorney and is coupled
with an interest in favor of each Director, acting severally, and any
liquidator of the Fund's assets, appointed pursuant to Section 6.2 hereof, and
as such:
B-23
(i) 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, the
Board, or any liquidator shall have had notice thereof; and
(ii) shall survive the delivery of a Transfer by a Member of
the whole or any portion of such Member's Interest, except that
where the transferee thereof has been approved by the Board for
admission to the Fund as a substituted Member, this
power-of-attorney given by the transferor shall survive the delivery
of such assignment for the sole purpose of enabling the Board or any
liquidator to execute, acknowledge, and file any instrument
necessary to effect such substitution.
8.3 NOTICES.
(a) Notices that may be or are required to be provided under this
Agreement shall be made, if to a Member, by regular postal mail, hand
delivery, registered or certified mail return receipt requested, commercial
courier service, telex, or telecopier, electronic mail, the internet, computer
interface, or any other electronic method or device of document transfer or
telegraphic or other written communication, or, if to the Fund, by regular
postal mail, hand delivery, registered or certified mail return receipt
requested, commercial courier service, telex, or telecopier, electronic mail,
the internet, computer interface, or any other electronic method or device of
document transfer or telegraphic or other written communication, and shall be
addressed to the respective parties hereto at their addresses as set forth on
the books and records of the Fund (or to such other addresses as may be
designated by any party hereto by notice addressed to the Fund in the case of
notice given to any Member, and to each of the Members in the case of notice
given to the Fund). Notices shall be deemed to have been provided when
delivered by hand, on the date indicated as the date of receipt on a return
receipt or when received if sent by regular mail, commercial courier service,
telex, telecopier, telegraphic, electronic, or other means of written
communication. A document that is not a notice and that is required to be
provided under this Agreement by any party to another party may be delivered
by any reasonable means.
(b) If any notice addressed to a Member at the address of that Member
appearing on the books and records of the Fund is returned to the Fund marked
to indicate that such notice is unable to be delivered to the Member at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if such future notices or reports shall be kept
available to the Member, upon written demand of the Member, at the principal
executive office of the Fund for a period of one year from the date of the
giving of the notice.
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors, assigns, executors, trustees, or other legal
representatives, but the rights and obligations of the parties hereunder may
not be Transferred or delegated except as provided in this Agreement and any
attempted Transfer or delegation thereof that is not made pursuant to the
terms of this Agreement shall be void.
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2. The parties hereto
acknowledge that this Agreement is not intended to, and does not set forth the
substantive provisions contained in the 1940 Act and the Form N-2 which affect
numerous aspects of the conduct of the Fund's business and of the rights,
privileges, and obligations of the Members. Each provision of this Agreement
shall be subject to and interpreted in a manner consistent with the applicable
provisions of the 1940 Act and the Form N-2 subject to any exemptive relief
obtained thereunder relating to the Fund.
8.6 CHOICE OF LAW; ARBITRATION.
(a) Notwithstanding the place where this Agreement may be executed by any
of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed under the laws of the State of Delaware,
including the Delaware Act, without regard to the conflict of law principles
of the State of Delaware.
(b) Unless otherwise agreed in writing, each Member agrees to submit all
controversies arising between or among Members or one or more Members and the
Fund in connection with the Fund or its businesses or
B-24
concerning any transaction, dispute, or the construction, performance, or
breach of this or any other agreement, whether entered into prior to, on, or
subsequent to the date hereof, to arbitration in accordance with the
provisions set forth below. Each Member understands that:
(i) Arbitration is final and binding on the parties;
(ii) The parties are waiving their rights to seek remedies in
court, including the right to jury trial;
(iii) Pre-arbitration discovery is generally more limited than
and different from court proceedings;
(iv) The arbitrator's award is not required to include factual
findings or legal reasoning and a party's right to appeal or to seek
modification of rulings by arbitrators is strictly limited; and
(v) A panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
(c) All controversies that may arise among Members and one or more
Members or the Special Advisory Member and the Fund concerning this Agreement
shall be determined by arbitration in New York City in accordance with the
Federal Arbitration Act, to the fullest extent permitted by law. Any
arbitration under this Agreement shall be determined before and in accordance
with the rules then obtaining of either the New York Stock Exchange, Inc. (the
"NYSE") or the NASD Regulation, Inc. (the "NASDR"), as the Member or entity
instituting the arbitration may elect. If the NYSE or NASDR does not accept
the arbitration for consideration, the arbitration shall be submitted to, and
determined in accordance with the rules then obtaining of, the Center for
Public Resources, Inc. in New York City. Judgment on any award of any such
arbitration may be entered in the Supreme Court of the State of New York or in
any other court having jurisdiction of the person or persons against whom such
award is rendered. Any notice of such arbitration or for the confirmation of
any award in any arbitration shall be sufficient if given in accordance with
the provisions of this Agreement. Each Member agrees that the determination of
the arbitrators shall be binding and conclusive upon the Member.
(d) No Member shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action or who is a
Member of a putative class who has not opted out of the class with respect to
any claims encompassed by the putative class action unless and until: (i) the
class certification is denied; (ii) the class is decertified; or (iii) the
Member is excluded from the class by the court. The forbearance to enforce an
agreement to arbitrate shall not constitute a waiver of any rights under this
Agreement except to the extent stated herein.
8.7 NOT FOR BENEFIT OF CREDITORS. The provisions of this Agreement are
intended only for the regulation of relations among past, present, and future
Members (including the Special Advisory Member), Directors, and the Fund. This
Agreement is not intended for the benefit of non-Member creditors and no
rights are granted to non-Member creditors under this Agreement.
8.8 CONSENTS. Any and all consents, agreements, or approvals provided for
or permitted by this Agreement shall be in writing and a signed copy thereof
shall be filed and kept with the books of the Fund.
8.9 MERGER AND CONSOLIDATION.
(a) The Fund, as permitted by the 1940 Act, may merge or consolidate with
or into one or more limited liability companies formed under the Delaware Act
or other business entities (as defined in Section 18-209(a) of the Delaware
Act) pursuant to an agreement of merger or consolidation which has been
approved in the manner contemplated by Section 18-209(b) of the Delaware Act.
B-25
(b) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, an agreement of merger or consolidation approved in accordance with
Section 18-209(b) of the Delaware Act may, to the extent permitted by Section
18-209(b) of the Delaware Act: (i) effect any amendment to this Agreement;
(ii) effect the adoption of a new limited liability company operating
agreement for the Fund if it is the surviving or resulting limited liability
company in the merger or consolidation; or (iii) provide that the limited
liability company operating agreement of any other constituent limited
liability company to the merger or consolidation (including a limited
liability company formed for the purpose of consummating the merger or
consolidation) shall be the limited liability company operating agreement of
the surviving or resulting limited liability company.
8.10 DIRECT INVESTMENT STRUCTURE. Subject to obtaining any required
regulatory approval, the Fund may determine to invest its assets directly in
non-U.S. Investment Funds that are classified as PFICs for U.S. federal income
tax purposes. The Fund may pursue such an investment approach only if it
believes that it could avoid generating UBTI by making such investments and
the approach is approved by the Fund's Board of Directors. The Fund will
provide Members with at least 90 days' notice before implementing such a
change.
8.11 PRONOUNS. All pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular, or plural, as the identity of the person or
persons, firm, or corporation may require in the context thereof.
8.12 CONFIDENTIALITY.
(a) A Member may obtain from the Fund, for any purpose reasonably related
to the Member's Interest, certain confidential 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 (the "Confidential
Information").
(b) Each Member covenants that, except as required by applicable law or
any regulatory body, it will not divulge, furnish, or make accessible to any
other person the name or address (whether business, residence, or mailing) of
any Member or any other Confidential Information without the prior written
consent of the Board, which consent may be withheld in its sole and absolute
discretion.
(c) Each Member recognizes that in the event that this Section 8.12 is
breached by any Member or any of its principals, partners, members, trustees,
officers, directors, employees, or agents or any of its affiliates, including
any of such affiliates' principals, partners, members, trustees, officers,
directors, employees, or agents, irreparable injury may result to the
non-breaching Members and the 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 also shall have the right to obtain
equitable relief, including, without limitation, injunctive relief, to prevent
any disclosure of Confidential Information, plus reasonable attorneys' fees
and other litigation expenses incurred in connection therewith. In the event
that any non-breaching Member or the Fund determines that any of the other
Members or any of its principals, partners, members, trustees, officers,
directors, employees, or agents or any of its affiliates, including any of
such affiliates' principals, partners, members, directors, officers,
employees, or agents should be enjoined from or required to take any action to
prevent the disclosure of Confidential Information, each of the other
non-breaching Members agrees to pursue in a court of appropriate jurisdiction
such injunctive relief.
(d) The Fund shall have the right to keep confidential from the Members
for such period of time as it deems reasonable any information that the Board
reasonably believes to be in the nature of trade secrets or other information
the disclosure of which the Board in good faith believes is not in the best
interest of the Fund or could damage the Fund or its business or that the Fund
is required by law or by agreement with a third party to keep confidential.
8.13 CERTIFICATION OF NON-FOREIGN STATUS. Each Member or transferee of an
Interest from a Member that is admitted to the Fund in accordance with this
Agreement shall certify, upon admission to the Fund and at such other time
thereafter as the Board may request, whether he or she is a "United States
Person" within the meaning of Section 7701(a)(30) of the Code on forms to be
provided by the Fund, and shall notify the Fund within 30 days of any change
in such Member's status. Any Member who shall fail to provide such
certification when
B-26
requested to do so by the Board may be treated as a non-United States Person
for purposes of U.S. Federal tax withholding.
8.14 SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction not to be enforceable in the manner set forth
in this Agreement, each Member agrees that it is the intention of the Members
that such provision should be enforceable to the maximum extent possible under
applicable law. If any provisions of this Agreement are held to be invalid or
unenforceable, such invalidation or unenforceability shall not affect the
validity or enforceability of any other provision of this Agreement (or
portion thereof).
8.15 ENTIRE AGREEMENT. This Agreement (including the Schedule attached
hereto which is incorporated herein) constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
8.16 DISCRETION. To the fullest extent permitted by law, whenever in this
Agreement, a person is permitted or required to make a decision: (i) in its
"sole discretion" or "discretion" or under a grant of similar authority or
latitude, such person shall be entitled to consider only such interests and
factors as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors affecting
the Fund or the Members; or (ii) in its "good faith" or under another express
standard, then such person shall act under such express standard and shall not
be subject to any other or different standards imposed by this Agreement or
any other agreement contemplated herein or by relevant provisions of law or in
equity or otherwise.
8.17 COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all the parties have not signed the
same counterpart.
8.18 TAX MATTERS MEMBER. The Investment Adviser shall be the "tax matters
member" under the Code for the Fund unless another Member is so designated by
the Board.
THE UNDERSIGNED ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS ENTIRETY
BEFORE SIGNING, INCLUDING THE PRE-DISPUTE ARBITRATION CLAUSES SET FORTH IN
SECTION 8.6 AND THE CONFIDENTIALITY CLAUSES SET FORTH IN SECTION 8.12.
B-27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
By: ______________________________ Date: ___________
John T. Ferguson, Jr., as
Organizational Member
DB INVESTMENT MANAGERS, INC., in its capacity as
Investment Adviser and Special Advisory Member
By: ______________________________ Date: ___________
ADDITIONAL MEMBERS:
Each person who has signed or has had signed on its behalf a Member
Signature Page, which shall constitute a counterpart hereof.
B-28
SCHEDULE I
The undersigned understand and agree to the provisions of this Agreement
pertaining to the obligations of Directors.
Nolan T. Altman Signed: ____________________________
c/o DB Absolute Return Strategies
25 DeForest Avenue Date: ____________________________
Summit NJ 07046
Louis S. Citron Signed: ____________________________
c/o DB Absolute Return Strategies
25 DeForest Avenue Date: ____________________________
Summit NJ 07046
Raymond C. Nolte Signed: ____________________________
c/o DB Absolute Return Strategies
25 DeForest Avenue Date: ____________________________
Summit NJ 07046
Edward T. Tokar Signed: ____________________________
c/o DB Absolute Return Strategies
25 DeForest Avenue Date: ____________________________
Summit NJ 07046
B-29
THE INFORMATION IN THIS STATEMENT OF ADDITIONAL INFORMATION IS NOT
COMPLETE AND MAY BE CHANGED. NO PERSON MAY SELL THESE SECURITIES UNTIL
THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS STATEMENT OF ADDITIONAL INFORMATION IS NOT
AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
STATEMENT OF ADDITIONAL INFORMATION
The Topiary Fund for Benefit Plan Investors (BPI) LLC
Limited Liability Company Interests
The telephone number of the Fund, including to request the Fund's
Prospectus, is 1-888-262-0695.
Limited liability company interests ("Interests") of the Fund are sold by
Scudder Distributors, Inc. ("Distributor"), the Fund's distributor, to clients
and customers (including affiliates and correspondents) of DB Investment
Managers, Inc. ("DBIM" or "Adviser"), the investment adviser to the Master
Fund (as defined herein), and to clients and customers of other organizations.
The Fund's Prospectus, which is dated [o], 2004, provides the basic
information investors should know before investing. This Statement of
Additional Information ("SAI"), which is not a prospectus, is intended to
provide additional information regarding the activities and operations of the
Fund and should be read in conjunction with the Prospectus. You may request a
copy of the Prospectus or a paper copy of this SAI, if you have received it
electronically, free of charge by calling the Fund at the telephone number
listed above. This SAI is not an offer of the Fund for which an investor has
not received the Prospectus. Capitalized terms not otherwise defined in this
SAI have meanings accorded to them in the Fund's Prospectus.
The date of this SAI and the related Prospectus is [o], 2004.
1
TABLE OF CONTENTS
Page
ADDITIONAL INVESTMENT POLICIES................................................................................................3
ADDITIONAL INFORMATION ON INVESTMENT TECHNIQUES AND OPERATIONS OF THE FUND AND RELATED RISKS..................................4
ADDITIONAL INFORMATION ON INVESTMENT TECHNIQUES OF INVESTMENT FUNDS AND RELATED RISKS.........................................6
DIRECTORS AND OFFICERS.......................................................................................................14
LIQUIDITY REQUIREMENTS.......................................................................................................20
CODE OF ETHICS...............................................................................................................20
PERFORMANCE INFORMATION......................................................................................................20
INVESTMENT MANAGEMENT AND OTHER SERVICES.....................................................................................21
INDEPENDENT AUDITORS.........................................................................................................23
DISTRIBUTOR..................................................................................................................23
CALCULATION OF FEES..........................................................................................................24
LEGAL COUNSEL................................................................................................................24
PORTFOLIO TRANSACTIONS.......................................................................................................24
PROXY VOTING POLICIES AND PROCEDURES.........................................................................................24
PRIVACY STATEMENT............................................................................................................25
2
ADDITIONAL INVESTMENT POLICIES
The investment objective and principal investment strategies of the Fund and
the Master Fund, as well as the principal risks associated with the Fund's and
the Master Fund's investment strategies, are set forth in the Prospectus.
Certain additional investment information is provided below. The Investment
Funds in which the Master Fund will invest are not subject to the Master
Fund's investment policies and may have different or contrary investment
policies.
Unless otherwise specified, percentage limitations shall be applied at the
time of investment. Therefore, these percentages could be exceeded due to
fluctuations in the value of the Fund's portfolio securities or liquidation of
portfolio securities to pay expenses or fulfill repurchase requests.
Percentage Limitations
Unless otherwise specified, percentage limitations on investments will be
applied at the time of investment. Therefore, these percentages could be
exceeded due to fluctuations in the value of the Fund's portfolio securities
or liquidation of portfolio securities to fulfill repurchase requests (which
the Board has, in its sole discretion, authorized) or to pay expenses. The
Fund's stated fundamental policies, listed below, may not be changed without a
majority vote of Members, which means the lesser of: (i) 67% of the Interests
present at a meeting at which holders of more than 50% of the outstanding
Interests are present in person or by proxy; or (ii) more than 50% of the
outstanding Interests. No other policy, including the Fund's investment
objective, is a fundamental policy of the Fund, except as expressly stated.
Within the limits of the Fund's fundamental policies, the Fund's management
has reserved freedom of action.
The Offshore Fund and the Master Fund have substantially the same fundamental
investment restrictions as the Fund; such restrictions cannot be changed
without the approval of the Board of the Fund, in the case of the Offshore
Fund, and a majority of the outstanding voting securities of the Master Fund,
in the case of the Master Fund. The Fund:
(1) May borrow money or issue any senior security, to the extent
permitted under the 1940 Act, and, as interpreted, modified, or
otherwise permitted by regulatory authority having jurisdiction,
from time to time.
(2) May not invest more than 25% of the value of its total assets in
the securities of a single industry, except that U.S. Government
securities may be purchased without limitation. For purposes of this
investment restriction, the Offshore Fund, the Master Fund, and the
Investment Funds will not be considered part of any industry. The
Master Fund may invest in Investment Funds that may concentrate
their assets in one or more industries.
(3) May not act as underwriter of securities of other issuers,
except that to the extent that in connection with the disposition of
portfolio securities, it may be deemed to be an underwriter under
the federal securities laws.
(4) May not purchase or sell real estate, although it may purchase
and sell securities secured by real estate or interests therein, or
securities issued by companies which invest in real estate, or
interests therein.
(5) May make loans only as permitted under the 1940 Act, and, as
interpreted, modified, or otherwise permitted by regulatory
authority having jurisdiction, from time to time.
(6) May not purchase or sell physical commodities and commodity
contracts, except that the Fund may: (i) enter into futures
contracts and options thereon in accordance with applicable law; and
(ii) purchase and sell physical commodities if acquired as a result
of ownership of securities or other instruments. The Fund will not
consider stock index, currency, and other financial futures
contracts, swaps, or hybrid instruments to be commodities for
purposes of this investment policy.
3
The Fund's investment policies and restrictions do not apply to the activities
and transactions of the Investment Funds in which the assets of the Fund are
invested through the Offshore Fund and the Master Fund, but will apply to
investments made by the Fund directly (or any account consisting solely of
Fund assets).
The Fund's, the Master Fund's and the Offshore Fund's investment objective is
non-fundamental and may be changed by the Board.
As an additional fundamental policy, the Fund may pursue its investment
program through one or more subsidiary vehicles. The establishment of such
vehicles and the Fund's utilization thereof is wholly within the discretion of
the Board.
Investment Funds Advised by the Adviser or its Affiliates
The Master Fund does not presently intend to invest in Investment Funds
managed by the Adviser or any of its affiliates. However, it may do so in the
future, subject to obtaining such exemptions from provisions of the 1940 Act
as may be necessary.
Futures and Options Transactions
Futures and related options transactions by the Fund must constitute
permissible transactions pursuant to the regulations promulgated by the
Commodity Futures Trading Commission ("CFTC"). The Fund operates pursuant to
an exemption provided by CFTC Rule 4.5 in order to avoid regulation by the
CFTC as a commodity pool. Pursuant to regulations and/or published positions
of the SEC, the Fund may be required to segregate cash or liquid securities in
connection with its futures and related options transactions in an amount
generally equal to the entire value of the underlying security.
The Fund May Change Its Investment Objective, Policies, Restrictions,
Strategies, and Techniques
Except as otherwise indicated, the Fund, the Master Fund and the Offshore Fund
may change their investment objectives and any of their policies,
restrictions, strategies, and techniques if the Board believes doing so is in
the best interests of the Fund, the Offshore Fund, the Master Fund and its
Members. The Fund's, the Offshore Fund's and the Master Fund's investment
objective is not a fundamental policy and it may be changed by the Board
without Member approval. Notice will be provided to Members prior to any such
change.
ADDITIONAL INFORMATION ON INVESTMENT TECHNIQUES AND OPERATIONS OF THE
MASTER FUND AND RELATED RISKS
Temporary Defensive Positions. In an attempt to respond to adverse market,
economic, political, or other conditions, the Master Fund may invest up to
100% of its assets in cash or cash equivalents including, but not limited to,
securities of money market funds, prime commercial paper, bank certificates of
deposit, bankers' acceptances, or repurchase agreements for such securities,
and securities of the U.S. Government and its agencies and instrumentalities,
as well as cash and cash equivalents denominated in foreign currencies. The
Master Fund's investments in foreign cash equivalents will be limited to those
that equate generally to the standards established for U.S. cash equivalents.
Investments in bank obligations will be limited at the time of investment to
the obligations of the 100 largest domestic banks in terms of assets that are
subject to regulatory supervision by the U.S. Government or state governments,
and the obligations of the 100 largest foreign banks in terms of assets with
branches or agencies in the United States. These investments may result in a
lower return than would have been obtained had the Fund adhered to its
standard investment policies.
Repurchase Agreements. The Master Fund may enter into repurchase agreements
with commercial banks and broker-dealers as a short-term cash management tool.
A repurchase agreement is an agreement under which the Master Fund acquires a
security, generally a U.S. Government obligation, subject to resale at an
agreed-upon price and date. The resale price reflects an agreed-upon interest
rate effective for the period of time the Master Fund holds the security and
is unrelated to the interest rate on the security. The Master Fund's
repurchase agreements will at all times be fully collateralized.
4
Repurchase agreements could involve certain risks in the event of bankruptcy
or other default by the seller. If a seller under a repurchase agreement were
to default on the agreement and be unable to repurchase the security subject
to the repurchase agreement, the Master Fund would look to the collateral
underlying the seller's repurchase agreement, including the security subject
to the repurchase agreement, for the satisfaction of the seller's obligation
to the Master Fund. In such an event, the Master Fund may incur a loss if the
value of the collateral declines and may incur disposition costs in
liquidating the collateral. In addition, the Master Fund may be subject to
possible delays or restrictions on its ability to dispose of the underlying
securities. Repurchase agreements are typically entered into for periods of
one week or less. The SEC staff currently takes the position that repurchase
agreements maturing in more than seven days are illiquid securities.
Reverse Repurchase Agreements. The Master Fund may enter into reverse
repurchase agreements, subject to the Master Fund's limitations on borrowings.
Reverse repurchase agreements involve a sale of a security by the Master Fund
to a bank or securities dealer and the Master Fund's simultaneous agreement to
repurchase that security for a fixed price (reflecting a market rate of
interest) on a specific date. These transactions involve a risk that the other
party to a reverse repurchase agreement will be unable or unwilling to
complete the transaction as scheduled, which may result in losses to the Fund.
Illiquid Securities. The Master Fund may invest in illiquid securities,
including restricted securities (i.e., securities not readily marketable
without registration under the Securities Act) and other securities that are
not readily marketable. These may include restricted securities that can be
offered and sold only to "qualified institutional buyers" under Rule 144A of
the Securities Act. There is no limit to the percentage of the Master Fund's
net assets that may be invested in illiquid securities. The Board or its
delegate may determine that securities issued pursuant to Rule 144A under the
Securities Act are marketable under procedures approved by the Board.
The Fund's investment in the Master Fund through the Offshore Fund is itself
illiquid and subject to substantial restrictions on transfer. The Fund will
typically have only limited rights to withdraw its investment in the Master
Fund. The illiquidity of these interests may adversely affect the Fund if it
sold such interests at an inopportune time. See "Repurchases of Interests."
Foreign Securities. The Master Fund may invest in securities of offshore
Investment Funds. Offshore Investment Funds may be subject to special risks as
foreign entities or as entities subject to foreign jurisdictions, including
risks due to economic, political, or regulatory change.
Securities Loans. The Master Fund may lend securities from its portfolio to
broker-dealers, institutional investors, or other persons, pursuant to
securities lending agreements. During the period of the loan, the Master Fund
will be entitled to payments of the interest, dividends or other distributions
payable on the loaned securities. Additionally, the Master Fund will retain at
least a portion of the interest earned on the investment of the collateral or
a fee from the borrower or placing agent. However, the Master Fund generally
will pay certain administrative and custodial fees in connection with each
loan. Any loans of securities must be secured by collateral at least equal to
100% of the value of the loaned securities, marked to market on a daily basis.
The Master Fund will generally receive collateral consisting of cash, U.S.
government securities, letters of credit and other similar instruments. The
Fund may experience a risk of loss if the other party to the transaction
breaches the securities lending agreement with the Master Fund.
The risks in lending portfolio securities, as with other extensions of secured
credit, consist of possible delay in receiving additional collateral or in the
recovery of the loaned securities or the possible loss of rights in the
collateral should the borrower fail financially. In addition, the Master Fund
is responsible for any loss that might result from its investment of the
borrower's collateral. Loans will only be made to firms deemed by the Board to
be of good standing and will not be made unless, in the judgment of the Board,
the consideration to be earned from such loans would justify the risk. Subject
to applicable regulatory approval, cash collateral may be invested in a money
market fund managed by the Adviser or one of its affiliates, and the Adviser
or an affiliate of the Adviser may serve as the Master Fund's lending agent
and may share in revenue received from securities lending transactions as
compensation for this service.
Payment in Kind for Repurchased Interests. The Fund does not expect to
distribute securities as payment for repurchased Interests except in unusual
circumstances, such as in the unlikely event that making a cash payment
5
would result in a material adverse effect on the Fund or on Members not
requesting that their Interests be repurchased, or that the Fund has received
distributions from the Master Fund via the Offshore Fund consisting of
securities of Investment Funds or securities from such Investment Funds that
are transferable to the Members. In the event that the Fund makes such a
distribution of securities as payment for Interests, Members will bear any
risks of the distributed securities (see "Additional Information on Investment
Techniques of Investment Funds and Related Risks" below) and may be required
to pay a brokerage commission or other costs in order to dispose of such
securities.
Suspension of Offerings. Any offering of Interests may be suspended, in the
Board's sole and absolute discretion, to the extent required for purposes of
compliance with the securities laws or in response to market conditions in the
securities markets or otherwise.
ADDITIONAL INFORMATION ON INVESTMENT TECHNIQUES OF INVESTMENT FUNDS
AND RELATED RISKS
This section provides additional information about types of investments and
investment techniques of Investment Funds in which the Master Fund will
invest. Some or all of the Investment Funds may make the investments described
in this section. As there is no limit on the types of investments the
Investment Funds may make, however, this cannot be a comprehensive
description. Any decision to invest in this Fund should take into account the
possibility that the Investment Funds may make virtually any kind of
investment, and be subject to related risks, which can be substantial.
Equity Securities. An Investment Fund's portfolio may include long and short
positions in common stocks, preferred stocks, and convertible securities of
U.S. and foreign issuers. An Investment Fund also may invest in depositary
receipts relating to foreign securities. Some of the specific risks related to
investments in foreign securities, depositary receipts relating to foreign
securities, or foreign currency transactions are described below in this
section under the sub-heading "Foreign Securities" or "Foreign Currency
Transactions." Equity securities fluctuate in value, often based on factors
unrelated to the issuer of the securities.
An Investment Fund may invest in equity securities without restriction as to
the market capitalization of issuers, including securities of companies with
market capitalizations that are small compared to other publicly traded
companies (including micro-cap companies). Smaller companies may have limited
product lines, markets, or financial resources or may depend on a small,
inexperienced management group. Securities of small companies may trade less
frequently and in lesser volume than more widely held securities and their
values may fluctuate more abruptly or erratically than securities of larger
companies. These may also trade in the over the counter market or on a
regional exchange, or may otherwise have limited liquidity. These securities
may therefore be more vulnerable to adverse market developments than
securities of larger companies. Also, there may be less publicly available
information about smaller companies or less market interest in their
securities compared to larger companies, and it may take longer for the prices
of the securities to reflect the full value of a company's earnings potential
or assets.
Common Stocks. Common stocks are shares of a corporation or other entity that
entitle the holder to a pro rata share of the profits, if any, of the entity
without preference over any other shareholder or claims of shareholders, after
making required payments to holders of the entity's preferred stock and other
senior equity. Common stock usually carries with it the right to vote and
frequently an exclusive right to do so.
Preferred Stocks. Preferred stock generally has a preference as to dividends
and, in the event of liquidation, to an issuer's assets, over the issuer's
common stock, but it ranks junior to debt securities in an issuer's capital
structure. Preferred stock generally pays dividends in cash or additional
shares of preferred stock at a defined rate but, unlike interest payments on
debt securities, preferred stock dividends are generally payable only if
declared by the issuer's board of directors. Dividends on preferred stock may
be cumulative, meaning that, in the event the issuer fails to make one or more
dividend payments on the preferred stock, no dividends may be paid on the
issuer's common stock until all unpaid preferred stock dividends have been
paid. Preferred stock may also be subject to optional or mandatory redemption
provisions.
Convertible Securities. Convertible securities are bonds, debentures, notes,
preferred stocks, or other securities that may be converted into or exchanged
for a specified amount of common stock of the same or different issuer within
a
6
specified period of time at a specified price or based on a specified formula.
A convertible security entitles the holder to receive interest that is
generally paid or accrued on debt or a dividend that is paid or accrued on
preferred stock until the convertible security matures or is redeemed,
converted, or exchanged. Convertible securities have unique investment
characteristics in that they generally: (i) have higher yields than common
stocks, but lower yields than comparable non-convertible securities; (ii) are
less subject to fluctuation in value than the underlying common stock due to
their fixed income characteristics; and (iii) provide the potential for
capital appreciation if the market price of the underlying common stock
increases.
The value of a convertible security is a function of its "investment value"
(determined by its yield in comparison with the yields of other securities of
comparable maturity and quality that do not have a conversion privilege) and
its "conversion value" (the security's worth, at market value, if converted
into the underlying common stock). The investment value of a convertible
security is influenced by changes in interest rates, with investment value
typically declining as interest rates increase and increasing as interest
rates decline. The credit standing of the issuer and other factors may also
increase or decrease the convertible security's investment value. The
conversion value of a convertible security is determined by the market price
of the underlying common stock. If the conversion value is low relative to the
investment value, the price of the convertible security is governed
principally by its investment value. Generally, the conversion value decreases
as the convertible security approaches maturity. To the extent the market
price of the underlying common stock approaches or exceeds the conversion
price, the price of the convertible security will be increasingly influenced
by its conversion value. A convertible security generally will sell at a
premium over its conversion value by the extent to which investors place value
on the right to acquire the underlying common stock while holding a fixed
income security.
A convertible security may be subject to redemption at the option of the
issuer at a price established in the convertible security's governing
instrument. If a convertible security held by an Investment Fund is called for
redemption, the Investment Fund will be required to permit the issuer to
redeem the security, convert it into the underlying common stock, or sell it
to a third party. Any of these actions could have an adverse effect on an
Investment Fund's ability to achieve its investment objective, which, in turn,
could result in losses to the Fund.
Fixed Income Securities. An Investment Fund may invest in fixed income
securities. Investment in these securities may offer opportunities for income
and capital appreciation, and may also be used for temporary defensive
purposes and to maintain liquidity.
Fixed income securities are obligations of the issuer to make payments of
principal and/or interest on future dates, and include, among other
securities: bonds, notes, and debentures issued by corporations; debt
securities issued or guaranteed by the U.S. Government or one of its agencies
or instrumentalities or by a foreign government; municipal securities; and
mortgage-backed and asset-backed securities. These securities may pay fixed,
variable, or floating rates of interest, and may include zero coupon
obligations. Fixed income securities are subject to the risk of the issuer's
inability to meet principal and interest payments on its obligations (i.e.,
credit risk) and are subject to price volatility due to such factors as
interest rate sensitivity, market perception of the creditworthiness of the
issuer, and general market liquidity (i.e., market risk).
An Investment Fund may invest in both investment grade and non-investment
grade debt securities. Investment grade debt securities are securities that
have received a rating from at least one nationally recognized statistical
rating organization ("NRSRO") in one of the four highest rating categories or,
if not rated by any NRSRO, have been determined to be of comparable quality.
Non-investment grade debt securities (commonly referred to as "junk bonds")
are securities that have received a rating from a NRSRO of below investment
grade or have been given no rating, and are considered by the NRSRO to be
predominantly speculative with respect to the issuer's capacity to pay
interest and repay principal. For a description of debt ratings, see Appendix
A. Non-investment grade debt securities in the lowest rating categories may
involve a substantial risk of default or may be in default. Non-investment
grade debt securities generally offer a higher yield than available from
investment grade issues, but involve greater risk. The returns of
non-investment grade debt securities are also subject to: (i) adverse changes
in general economic conditions; (ii) changes in the financial condition of
their issuers; (iii) changes in interest rates; and (iv) changes in market
liquidity. During periods of economic downturns or rising interest rates,
issuers of securities rated below investment grade or comparable unrated
securities may experience financial stress that could adversely affect their
ability to make payments of principal and interest and increase the
possibility of default. In addition, the market for lower grade debt
securities may be thinner and less active than for higher grade debt
7
securities. Non-investment grade debt securities have historically experienced
greater default rates than investment grade securities.
Foreign Securities. An Investment Fund may invest in commercial paper and
certificates of deposit issued by foreign banks and may invest either directly
or through ADRs, European Depositary Receipts ("EDRs"), or Global Depositary
Receipts ("GDRs") (collectively, "depositary receipts") in other securities of
foreign issuers. Depositary receipts are instruments generally issued by
domestic banks or trust companies that represent the deposits of a security of
a foreign issuer. ADRs, which are traded in dollars on U.S. exchanges or
over-the-counter, are issued by domestic banks and evidence ownership of
securities issued by foreign corporations. EDRs are typically traded in
Europe. GDRs are typically traded in both Europe and the United States.
Investment income received by an Investment Fund from sources within foreign
countries may be subject to foreign income taxes withheld at the source. The
United States has entered into tax treaties with many foreign countries which
entitle the Investment Fund to a reduced rate of such taxes or exemption from
taxes on such income. It is impossible to determine the effective rate of
foreign tax in advance since the amounts of the Investment Fund's assets to be
invested within various countries is not known.
Foreign Currency Transactions. A forward foreign currency exchange contract
("forward currency contract") is an agreement to purchase or sell a specific
currency at a future date and at a price set at the time the contract is
entered into. An Investment Fund might typically enter into forward currency
contracts to fix the U.S. dollar value of a security it has agreed to buy or
sell for the period between the date the trade was entered into and the date
the security is delivered and paid for, or, to hedge the U.S. dollar value of
securities it owns.
An Investment Fund may enter into a forward currency contract to sell or buy
the amount of a foreign currency it believes may experience a substantial
movement against the U.S. dollar. In this case, the forward currency contract
would approximate the value of some or all of the Investment Fund's portfolio
securities denominated in such foreign currency. The precise matching of the
forward currency contract amounts and the value of securities involved will
not generally be possible since the future value of such securities in foreign
currencies will change as a consequence of market involvement in the value of
those securities between the date the forward currency contract is entered
into and the date it matures. The projection of short-term currency market
movement is extremely difficult, and the successful execution of a short-term
hedging strategy is highly uncertain. At the maturity of a forward currency
contract, an Investment Fund may either sell the portfolio security and make
delivery of the foreign currency, or it may retain the security and terminate
its contractual obligation to deliver the foreign currency by purchasing an
"offsetting" contract obligating it to purchase, on the same maturity date,
the same amount of the foreign currency.
Because it is impossible to forecast with absolute precision the market value
of securities at the expiration of the forward currency contract, it may be
necessary for an Investment Fund to purchase additional foreign currency on
the spot market (and bear the expense of such purchase) if the market value of
the security is less than the amount of foreign currency the Investment Fund
is obligated to deliver and if a decision is made to sell the security and
make delivery of the foreign currency. Conversely, it may be necessary to sell
on the spot market some of the foreign currency received upon the sale of the
portfolio security if its market value exceeds the amount of foreign currency
the Investment Fund is obligated to deliver. If an Investment Fund retains the
portfolio security and engages in offsetting transactions, the Investment Fund
will incur a gain or a loss (as described below) to the extent that there has
been movement in forward contract prices. If the Investment Fund engages in an
offsetting transaction, it may subsequently enter into a new forward contract
to sell the foreign currency. Should forward prices decline during the period
between the Investment Fund entering into a forward currency contract for the
sale of a foreign currency and the date it enters into an offsetting contract
for the purchase of the foreign currency, the Investment Fund will realize a
gain to the extent the price of the currency it has agreed to sell exceeds the
price of the currency it has agreed to purchase. Should forward prices
increase, the Investment Fund will suffer a loss to the extent the price of
the currency they have agreed to purchase exceeds the price of the currency it
has agreed to sell. This method of hedging against a decline in the value of a
currency does not eliminate fluctuations in the underlying prices of the
securities, but rather establishes a rate of exchange at a future date.
Additionally, although such contracts tend to minimize the risk of loss due to
a decline in the value of a hedged currency, they tend to limit any potential
gain that might result from an increase in the value of that currency. The
cost of currency conversion may adversely affect an Investment Fund's returns.
Although foreign exchange dealers do not charge a fee for conversion, they do
realize a
8
profit based on the difference ("spread") between the prices at which they are
buying and selling various currencies. Thus, a dealer may offer to sell a
foreign currency to the Investment Fund at one rate, while offering a lesser
rate of exchange should the Investment Fund desire to resell that currency to
the dealer.
Short Sales. An Investment Fund may attempt to limit its exposure to a
possible market decline in the value of its portfolio securities, or take
advantage of an anticipated market decline, through short sales of securities
that the Investment Fund believes possess volatility characteristics similar
to those being hedged. In addition, an Investment Fund may use short sales for
non-hedging purposes to pursue its investment objective. For example, an
Investment Fund may "short" a security of a company if, in its investment
adviser's view, the security is over-valued in relation to the issuer's
prospects for earnings growth. Certain Investment Funds may consider short
selling to be a significant part of their investment strategy.
To effect a short sale, an Investment Fund would borrow a security from a
brokerage firm to make delivery to the buyer. The Investment Fund is then
obligated to replace the borrowed security by purchasing it at the market
price at the time of replacement. The price at such time may be more or less
than the price at which the security was sold by the Investment Fund, which
would result in a loss or gain, respectively. These techniques are speculative
and, in certain circumstances, can substantially increase the impact of
adverse price movements on the Investment Fund's portfolio, which, in turn,
could result in losses to the Fund. A short sale of a security involves the
risk of an unlimited increase in the market price of the security that could
result in an inability to cover the short position, and thus, a theoretically
unlimited loss. There can be no assurance that securities necessary to cover a
short position will be available for purchase.
An Investment Fund may also make short sales against-the-box, in which it
sells short securities it owns or has the right to obtain without payment of
additional consideration. The Investment Fund will incur transaction costs,
including interest expenses, in connection with opening, maintaining, and
closing short sales against-the-box.
Derivatives. An Investment Fund may use financial instruments known as
derivatives. A derivative is generally defined as an instrument whose value is
derived from, or based upon, some underlying index, reference rate (such as
interest rates or currency exchange rates), security, commodity, or other
asset. The investment adviser of an Investment Fund may decide not to employ
any of these strategies, and there is no assurance that any derivatives
strategy used by the Investment Fund will succeed, or that a particular
hedging instrument will be available for use by the Investment Fund. Examples
of derivatives include, but are not limited to, options contracts, futures
contracts, and options on futures contracts. A futures contract is an
exchange-traded agreement between two parties, a buyer and a seller, to
exchange a particular commodity or financial instrument at a specific price on
a specific date in the future.
An Investment Fund's use of derivatives involves risks different from, or
possibly greater than, the risks associated with investing directly in
securities or more traditional investments, depending upon the characteristics
of the particular derivative and the Investment Fund's portfolio as a whole.
Derivatives permit an Investment Fund to increase or decrease the level of
risk of its portfolio, or change the character of the risk to which its
portfolio is exposed, in much the same way as the Investment Fund can increase
or decrease the level of risk, or change the character of the risk, of its
portfolio by making investments in specific securities.
Derivatives may entail investment exposures that are greater than their cost
would suggest, meaning that a small investment in derivatives could have a
large potential impact on an Investment Fund's performance. If an Investment
Fund invests in derivatives at inopportune times or judges market conditions
incorrectly, such investments may lower the Investment Fund's return or result
in a loss. An Investment Fund also could experience losses if derivatives are
poorly correlated with its other investments, or if an Investment Fund is
unable to liquidate its position because of an illiquid secondary market. The
market for many derivatives is, or suddenly can become, illiquid. Changes in
liquidity may result in significant, rapid, and unpredictable changes in the
prices for derivatives.
Engaging in these transactions involves risk of loss to the Investment Funds
that could adversely affect the value of the Fund's net assets. No assurance
can be given that a liquid market will exist for any particular futures
contract at any particular time. Many futures exchanges and boards of trade
limit the amount of fluctuation permitted in futures contract prices during a
single trading day. Once the daily limit has been reached in a particular
contract, no trades may be made that day at a price beyond that limit or
trading may be suspended for specified periods during the
9
trading day. Futures contract prices could move to the limit for several
consecutive trading days with little or no trading, thereby preventing prompt
liquidation of futures positions and potentially subjecting the Investment
Funds to substantial losses.
Options and Futures. An Investment Fund may utilize options contracts, futures
contracts, and options on futures contracts. It also may use so-called
"synthetic" options or other derivative instruments written by broker-dealers
or other financial intermediaries. Options transactions may be effected on
securities exchanges or in the over-the-counter market. When options are
purchased over-the-counter, the Investment Fund's portfolio bears the risk
that the counterparty that wrote the option will be unable or unwilling to
perform its obligations under the option contract. Such options may also be
illiquid and, in such cases, an Investment Fund may have difficulty closing
out its position. Over-the-counter options purchased and sold by the
Investment Fund also may include options on baskets of specific securities.
An Investment Fund may purchase call and put options on specific securities,
and may write and sell covered or uncovered call and put options for hedging
purposes and non-hedging purposes to pursue its investment objective. A put
option gives the purchaser of the option the right to sell, and obligates the
writer to buy, the underlying security at a stated exercise price at any time
prior to the expiration of the option. Similarly, a call option gives the
purchaser of the option the right to buy, and obligates the writer to sell,
the underlying security at a stated exercise price at any time prior to the
expiration of the option. A covered call option is a call option with respect
to which an Investment Fund owns the underlying security. The sale of such an
option exposes the Investment Fund, during the term of the option, to possible
loss of opportunity to realize appreciation in the market price of the
underlying security or to possible continued holding of a security that might
otherwise have been sold to protect against depreciation in the market price
of the security. A covered put option is a put option with respect to which
cash or liquid securities have been placed in a segregated account on an
Investment Fund's books or with the Investment Fund's custodian or prime
broker (or similar arrangement) to fulfill the obligation undertaken. The sale
of such an option exposes the Investment Fund during the term of the option to
a decline in price of the underlying security while depriving the Investment
Fund of the opportunity to invest the segregated assets.
An Investment Fund may close out a position when writing options by purchasing
an option on the same security with the same exercise price and expiration
date as the option that it has previously written on the security. The
Investment Fund will realize a profit or loss if the amount paid to purchase
an option is less or more, as the case may be, than the amount received from
the sale thereof. To close out a position as a purchaser of an option, the
Investment Fund would ordinarily make a similar "closing sale transaction,"
which involves liquidating its position by selling the option previously
purchased, although the Investment Fund would be entitled to exercise the
option should it deem it advantageous to do so.
An Investment Fund may enter into stock futures contracts, interest rate
futures contracts, and currency futures contracts in U.S. domestic markets or
on exchanges located outside the United States. Foreign markets may offer
advantages such as trading opportunities or arbitrage possibilities not
available in the United States. Foreign markets, however, may have greater
risk potential than domestic markets. For example, some foreign exchanges are
principal markets so that no common clearing facility exists and an investor
may look only to the broker for performance of the contract. In addition, any
profits the Investment Fund might realize in trading could be eliminated by
adverse changes in the exchange rate, or the Investment Fund could incur
losses as a result of those changes. Transactions on foreign exchanges may
include both commodities which are traded on domestic exchanges and those
which are not. Unlike trading on domestic commodity exchanges, trading on
foreign commodity exchanges is not regulated by the CFTC.
Successful use of futures also is subject to the ability to predict correctly
movements in the direction of the relevant market, and, to the extent the
transaction is entered into for hedging purposes, to ascertain the appropriate
correlation between the transaction being hedged and the price movements of
the futures contract.
The prices of commodities contracts and all derivative instruments, including
futures and options prices, are highly volatile. Price movements of forward
contracts, futures contracts, and other derivative contracts in which an
Investment Fund may invest are influenced by, among other things: interest
rates; changing supply and demand relationships; trade, fiscal, monetary, and
exchange control programs and policies of governments; and national and
international political and economic events and policies. In addition,
governments from time to time intervene,
10
directly and by regulation, in certain markets, particularly those currencies
and interest rate related futures and options. Such intervention often is
intended directly to influence prices and may, together with other factors,
cause all of such markets to move rapidly in the same direction because of,
among other things, interest rate fluctuations. The Investment Fund also is
subject to the risk of the failure of any of the exchanges on which their
positions trade or of their clearinghouses.
A stock index future obligates an Investment Fund to pay or receive an amount
of cash equal to a fixed dollar amount specified in the futures contract
multiplied by the difference between the settlement price of the contract on
the contract's last trading day and the value of the index based on the stock
prices of the securities that comprise it at the opening of trading in such
securities on the next business day. A single stock future obligates an
Investment Fund to purchase or sell an amount of a specified equity security
at a future date at a specific price, or to pay or receive an amount of cash
equal to a fixed dollar amount specified in the futures contract multiplied by
the difference between the settlement price of the contract on the contract's
last trading day and the value of the stock at the opening of trading on the
next business day. An interest rate future obligates an Investment Fund to
purchase or sell an amount of a specific debt security at a future date at a
specific price. A currency future obligates an Investment Fund to purchase or
sell an amount of a specific currency at a future date at a specific price.
Call and Put Options on Securities Indices. An Investment Fund may purchase
and sell call and put options on stock indices listed on national securities
exchanges or traded in the over-the-counter market for hedging purposes and
non-hedging purposes to pursue their investment objectives. A stock index
fluctuates with changes in the market values of the stocks included in the
index. Accordingly, successful use by an Investment Fund of options on stock
indexes will be subject to its investment adviser's ability to predict
correctly movements in the direction of the stock market generally or of a
particular industry or market segment. This requires different skills and
techniques than predicting changes in the price of individual stocks.
Rights and Warrants. An Investment Fund may invest in common stock rights and
warrants believed by the investment adviser to provide capital appreciation
opportunities. Common stock rights and warrants may be purchased separately or
may be received as part of a unit or attached to securities purchased.
Warrants are securities that give the holder the right, but not the
obligation, to purchase equity issues of the company issuing the warrants, or
a related company, at a fixed price either on a date certain or during a set
period. At the time of issue, the cost of a warrant is substantially less than
the cost of the underlying security itself, and price movements in the
underlying security are generally magnified in the price movements of the
warrant. This effect would enable an Investment Fund to gain exposure to the
underlying security with a relatively low capital investment but increases the
Investment Fund's risk in the event of a decline in the value of the
underlying security and can result in a complete loss of the amount invested
in the warrant. In addition, the price of a warrant tends to be more volatile
than, and may not correlate exactly to, the price of the underlying security.
If the market price of the underlying security is below the exercise price of
the warrant on its expiration date, the warrant will generally expire without
value. The equity security underlying a warrant is authorized at the time the
warrant is issued or is issued together with the warrant, which may result in
losses to the Fund. Investing in warrants can provide a greater potential for
profit or loss than an equivalent investment in the underlying security, and,
thus, can be a speculative investment. The value of a warrant may decline
because of a decline in the value of the underlying security, the passage of
time, changes in interest rates or in the dividend or other policies of the
company whose equity underlies the warrant or a change in the perception as to
the future price of the underlying security, or any combination thereof.
Warrants and rights do not carry with them the right to dividends or voting
rights with respect to the securities that they entitle the holder to
purchase, and they do not represent any rights in the assets of the issuer.
Forward Contracts. An Investment Fund may enter into a forward contract, which
is a purchase or sale of a specific quantity of a commodity, government
security, foreign currency or other financial instrument at the current or
spot price, with delivery and settlement at a specified future date. Because
it is a completed contract, a purchase forward contract can be a cover for the
sale of a futures contract.
An Investment Fund may enter into forward contracts for hedging purposes and
non-hedging purposes (i.e., to increase returns) to pursue its investment
objective. Forward contracts are transactions involving an Investment Fund's
obligation to purchase or sell a specific instrument at a future date at a
specified price. Forward contracts may be used by an Investment Fund for
hedging purposes to protect against uncertainty in the level of future foreign
currency exchange rates, such as when an investment adviser of an Investment
Fund anticipates purchasing or
11
selling a foreign security. This technique would allow the Investment Fund to
"lock in" the U.S. dollar price of the security. Forward contracts may also be
used to attempt to protect the value of an Investment Fund's existing holdings
of foreign securities. There may be, however, imperfect correlation between an
Investment Fund's foreign securities holdings and the forward contracts
entered into with respect to those holdings. Forward contracts may also be
used for non-hedging purposes to pursue an Investment Fund's investment
objective, such as when an Investment Fund's investment adviser anticipates
that particular foreign currencies will appreciate or depreciate in value,
even though securities denominated in those currencies are not then held in
the Investment Fund's investment portfolio. There is no general requirement
that the Investment Funds hedge all or any portion of their exposure to
foreign currency risks.
When-Issued and Forward Commitment Securities. Some or all of the Investment
Funds may purchase securities on a "when-issued" basis and may purchase or
sell securities on a "forward commitment" basis in order to hedge against
anticipated changes in interest rates and prices or for speculative purposes.
These transactions involve a commitment by an Investment Fund to purchase or
sell securities at a future date (ordinarily one or two months later). The
price of the underlying securities, which is generally expressed in terms of
yield, is fixed at the time the commitment is made, but delivery and payment
for the securities takes place at a later date. No income accrues on
securities that have been purchased pursuant to a forward commitment or on a
when-issued basis prior to delivery to the Investment Fund. When-issued
securities and forward commitments may be sold prior to the settlement date.
If an Investment Fund disposes of the right to acquire a when-issued security
prior to its acquisition or disposes of its right to deliver or receive
against a forward commitment, it may incur a gain or loss. There is a risk
that securities purchased on a when-issued basis may not be delivered and that
the purchaser of securities sold by an Investment Fund on a forward basis will
not honor its purchase obligation. In such cases, an Investment Fund may incur
a loss.
Bank Loans and Participations. An Investment Fund may invest, directly or
through a private investment fund, in bank loans or participations in bank
loans (collectively, "bank loans"), either of which may become non-performing
for a variety of reasons. Such non-performing bank loans may require
substantial workout negotiations or restructuring in the event of a default or
bankruptcy, which may entail, among other things, a substantial reduction in
the interest rate and a substantial write-down of the principal of the bank
loan. In addition, bank loans are generally subject to liquidity risks since
bank loans are traded in an "over-the-counter" market.
Bank loans, like most other debt obligations, are subject to the risk of
default. While all investments involve some amount of risk, bank loans
generally involve less risk than equity instruments of the same issuer because
the payment of principal of and interest on debt instruments is a contractual
obligation of the issuer that, in most instances, takes precedence over the
payment of dividends, or the return of capital, to the issuer's shareholders.
However, in the event of the bankruptcy, receivership, or other insolvency
proceeding of a borrower, an Investment Fund could experience delays or
limitations with respect to its ability to collect the principal of and
interest on the bank loan and with respect to its ability to realize the
benefits of the collateral securing the bank loan, if any.
Although an Investment Fund may invest in bank loans that will be fully
collateralized with assets with a market value that, at the time of
acquisition, equals or exceeds the principal amount of the bank loan, the
value of the collateral may decline below the principal amount of the bank
loan subsequent to the Investment Fund's investment in such bank loan. In
addition, to the extent that collateral consists of stock of the borrower or
its subsidiaries or affiliates, the Investment Fund will be subject to the
risk that this stock may decline in value, be relatively illiquid, or may lose
all or substantially all of its value, causing the bank loan to be
undercollateralized. Bank loans are also subject to the risk of default of
scheduled interest or principal payments. In the event of a failure to pay
scheduled interest or principal payments on bank loans held by an Investment
Fund, the Investment Fund could experience a reduction in its income, and
would experience a decline in the market value of the particular bank loan so
affected, and may experience a decline in its net asset value or the amount of
its distributions, which may adversely affect the performance of the Fund. An
Investment Fund may invest in uncollateralized bank loans, which may involve a
greater risk of loss.
The risk of default will increase in the event of an economic downturn or a
substantial increase in interest rates. To the extent that an Investment
Fund's investment is in a bank loan acquired from another lender, the
Investment Fund may be subject to certain credit risks with respect to that
lender. Further, there is no assurance that the liquidation of the collateral
(if any) underlying a bank loan would satisfy the issuer's obligation to the
Investment Fund in the event of non-payment of scheduled interest or
principal, or that collateral could be readily liquidated. The risk of
12
non-payment of interest and principal also applies to other debt instruments
in which the Investment Fund may invest. There is no assurance that the sale
of collateral would raise enough cash to satisfy the borrower's payment
obligation or that the collateral can or will be liquidated. Some or all of
the bank loans held by an Investment Fund may not be secured by any
collateral, and such bank loans entail greater risk than secured bank loans.
Swaps. An Investment Fund may enter into equity, interest rate, index,
currency rate, and total return swap agreements. These transactions are
entered into in an attempt to obtain a particular return when it is considered
desirable to do so, possibly at a lower cost than if an Investment Fund had
invested directly in the asset that yielded the desired return. Swap
agreements are two-party contracts entered into primarily by institutional
investors for periods ranging from a few weeks to more than a year. In a
standard swap transaction, two parties agree to exchange the returns (or
differentials in rates of return) earned or realized on particular
predetermined investments or instruments, which may be adjusted for an
interest factor. The gross returns to be exchanged or "swapped" between the
parties are generally calculated with respect to a "notional amount" (i.e.,
the return on or increase in value of a particular dollar amount invested at a
particular interest rate, in a particular foreign currency, or in a "basket"
of securities representing a particular index).
Interest Rate Swap. An Investment Fund may enter into interest rate swaps.
Forms of swap agreements include interest rate caps, under which, in return
for a premium, one party agrees to make payments to the other to the extent
interest rates exceed a specified rate or "cap"; interest rate floors, under
which, in return for a premium, one party agrees to make payments to the other
to the extent interest rates fall below a specified level or "floor"; and
interest rate collars, under which a party sells a cap and purchases a floor
or vice versa in an attempt to protect itself against interest rate movements
exceeding given minimum or maximum levels.
Equity Index Swaps. An Investment Fund may enter into equity index swaps.
Equity index swaps involve the exchange by an Investment Fund with another
party of cash flows based upon the performance of an index or a portion of an
index of securities which usually includes dividends. An Investment Fund may
purchase cash-settled options on equity index swaps. A cash-settled option on
a swap gives the purchaser the right, but not the obligation, in return for
the premium paid, to receive an amount of cash equal to the value of the
underlying swap as of the exercise date. These options typically are purchased
in privately negotiated transactions from financial institutions, including
securities brokerage firms.
Currency Swaps. An Investment Fund may enter into currency swaps for both
hedging and non-hedging purposes. Currency swaps involve the exchange of
rights to make or receive payments in specified foreign currencies. Since
currency swaps are individually negotiated, an Investment Fund would expect to
achieve an acceptable degree of correlation between its portfolio investments
and their currency swap positions. Currency swaps usually involve the delivery
of the entire principal value of one designated currency in exchange for
another designated currency. Therefore, the entire principal value of a
currency swap is subject to the risk that the other party to the swap will
default on its contractual delivery obligations. The use of currency swaps is
a highly specialized activity which involves special investment techniques and
risks. If its investment adviser is incorrect in its forecasts of market
values and currency exchange rates, the Investment Fund's performance will be
adversely affected. If there is a default by the other party to such a
transaction, the Investment Fund will have contractual remedies pursuant to
the agreements related to the transaction.
Total Return Swaps. An Investment Fund may invest in total return swaps with
appropriate counterparties. In a total return swap, one party pays a rate of
interest in exchange for the total rate of return on another investment. For
example, if an Investment Fund wished to invest in a senior loan, it could
instead enter into a total return swap and receive the total return of the
senior loan, less the "funding cost," which would be a floating interest rate
payment to the counterparty.
Certain swap agreements into which an Investment Fund enters may require the
calculation of the obligations of the parties to the agreements on a "net
basis." Consequently, the Investment Fund's current obligations (or rights)
under such swap agreements generally will be equal only to the net amount to
be paid or received under the agreement based on the relative values of the
positions held by each party to the agreement (the "net amount"). The risk of
loss with respect to swaps is limited to the net amount of interest payments
that the Investment Fund is contractually obligated to make. If the other
party to a swap defaults, the Investment Fund's risk of loss consists of the
net amount of payments that the Investment Fund contractually is entitled to
receive.
13
Distressed Credits. An Investment Fund may invest in securities of domestic
and foreign issuers in weak financial condition, experiencing poor operating
results, having substantial capital needs or negative net worth, facing
special competitive or product obsolescence problems, or that are involved in
bankruptcy or reorganization proceedings. Investments of this type may involve
substantial financial and business risks that can result in substantial or at
times even total losses. Among the risks inherent in investments in troubled
entities is the fact that it frequently may be difficult to obtain information
as to the true condition of such issuers. Such investments also may be
adversely affected by state and federal laws relating to, among other things,
fraudulent transfers and other voidable transfers or payments, lender
liability, and the Bankruptcy Court's power to disallow, reduce, subordinate,
or disenfranchise particular claims. The market prices of such securities are
also subject to abrupt and erratic market movements and above-average price
volatility, and the spread between the bid and asked prices of such securities
may be greater than those prevailing in other securities markets. It may take
a number of years for the market price of such securities to reflect their
intrinsic value. In liquidation (both in and out of bankruptcy) and other
forms of corporate reorganization, there exists the risk that the
reorganization either will be unsuccessful (due to, for example, failure to
obtain requisite approvals), will be delayed (for example, until various
liabilities, actual or contingent, have been satisfied), or will result in a
distribution of cash or a new security the value of which will be less than
the purchase price to the Investment Fund of the security in respect to which
such distribution was made.
DIRECTORS AND OFFICERS
The Board of the Fund and the Board of the Master Fund (the "Master Fund's
Board") have overall responsibility to manage and control the business
operations of the Fund and the Master Fund, respectively, on behalf of their
respective members. At least a majority of the Board and the Master Fund's
Board are and will be persons who are not "interested persons," as defined in
Section 2(a)(19) of the 1940 Act ("Independent Directors"). Subject to the
provisions of the Operating Agreement and Delaware law, the Directors have all
powers necessary and convenient to carry out this responsibility. The Offshore
Fund has two members: the Fund (which serves as managing member) and the
Adviser (which holds only a nominal, non-voting interest). The members of the
Offshore Fund have delegated the day-to-day management, as well as general
oversight responsibilities of the Offshore Fund, to the Fund. The Board of the
Fund therefore effectively makes all decisions on behalf of the Offshore Fund.
The Directors and officers of the Fund and the Master Fund, their addresses,
their ages and descriptions of their principal occupations during the past
five years are listed below.
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Term of Number of
Office(1) Portfolios
and in Fund
Position(s) Length Complex Other
Held with Fund of Time Principal Occupation(s) Overseen Directorships
Name, Address, and Birth Date and Master Fund Served(2) During the Past 5 Years by Director Held by Director
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Independent Directors
------------------------------------------------------------------------------------------------------------------------------------
Nolan T. Altman Director Since Director and President, 3 Director, State
c/o The Topiary Fund for inception NTA Consulting University of New
Benefit Plan Investors (BPI) (financial services York at Albany
LLC consulting) (2001 to (1998 to present);
25 DeForest Ave. present). Formerly, Archimedes
Summit, New Jersey 07901 Chief Financial Offshore Ltd.
(9/18/55) Officer, Tiger offshore fund)
Management (2001 to
present).
Director, Phinity
Offshore Fund Ltd.,
Director, Tiger
Asia Overseas
Fund Ltd.(3)
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
---------------
(1) Each Director serves for the duration of the Fund, or until his death,
resignation, termination, removal, or retirement.
(2) The Fund is expected to commence operations on [October 1, 2004].
(3) Since March 2003, Messrs. Altman and Citron have served as members of
the Conflicts Advisory Board of certain private investment funds
managed by DBIM or its affiliates.
14
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Term of Number of
Office(1) Portfolios
and in Fund
Position(s) Length Complex Other
Held with Fund of Time Principal Occupation(s) Overseen Directorships
Name, Address, and Birth Date and Master Fund Served(2) During the Past 5 Years by Director Held by Director
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
(investment adviser to
hedge funds) (1993 to
2001).
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Louis S. Citron Director Since General Counsel, New 3 None.(3)
c/o The Topiary Fund for inception Enterprise Associates
Benefit Plan Investors (BPI) (venture capital firm)
LLC (2001 to present).
25 DeForest Ave. Formerly, General Counsel
Summit, New Jersey 07901) and Senior Vice President,
(1/31/65) the ING mutual funds
(1998-2000); Vice
President, ING Mutual
Funds Management Co. LLC
(registered investment
adviser)(1998 to 2000);
Vice President, ING
Funds Distributors,
Inc. (principal
underwriter for the
ING mutual funds)
(1998 to 2000);
Vice President, ING
Funds Services Co.
LLC (administrator to
the ING mutual funds)
(1998 to 2000);
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Edward T. Tokar Director Since Senior Managing Director of Director, Gabelli,
c/o The Topiary Fund for inception Investments, Beacon Trust Dividend and
Benefit Plan Investors (BPI) Company (2004 to present), Income Trust
LLC Chief Executive Officer, 3 (2003 to present),
25 DeForest Ave. Allied Capital Management Trustee, Levco
Summit, New Jersey 07901 LLC (registered investment Series Trust
(6/12/47) adviser) (1998 to present) Mutual Funds (2
and Vice President - portfolios) (2001
Investments, Honeywell to present);
International, Inc. Director, Allied
(advanced technology and Capital
manufacturer) (1977 Management LLC
to present). (1998 to present).
Scudder MG
Investment Trust
(formerly Morgan
Grenfell
Investment Trust)
(11 portfolios)
(1994 to 2002).
------------------------------------------------------------------------------------------------------------------------------------
Directors who are "Interested Persons"*
------------------------------------------------------------------------------------------------------------------------------------
* Mr. Nolte is an "interested person" under Section 2(a)(19) of the 1940 Act
of the Fund. Mr. Nolte is a
15
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Term of Number of
Office(1) Portfolios
and in Fund
Position(s) Length Complex Other
Held with Fund of Time Principal Occupation(s) Overseen Directorships
Name, Address, and Birth Date and Master Fund Served(2) During the Past 5 Years by Director Held by Director
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Raymond C. Nolte Director Since Global Head of Funds- 3 Topiary Fund
The Topiary Fund for Benefit inception of-Funds, DB Absolute Ireland Plc
Plan Investors (BPI) LLC Return Strategies (1996 to (offshore fund)
25 DeForest Ave. present). Director OF DBIM (1997 to present)
Summit, New Jersey 07901 (2002 to present). and Gordian Knot
(6/25/61) Formerly, Vice President, Ltd. (a U.K.
Associate Vice President, investment
and Assistant Treasurer, advisory firm)
Foreign Exchange Sales and (2002 to present).
Trading and International
Fixed Income groups,
Deutsche Bank Trust
Company Americas (formerly
Bankers Trust Company)
(financial services
firm) (1983 to 1999).
-------------------------------------- ---------------- ------------ ---------------------------- -------------- -------------------
Officers
------------------------------------------------------------------------------------------------------------------------------------
Name, Address, and Birth Date Positions Held with Fund Principal Occupation(s) During the Last
and Master Fund Five Years
-------------------------------------- ----------------------------------------- ------------------------------------------------
Julian Sluyters Chief Executive Officer Managing Director, Deutsche Asset Deutsche
Deutsche Asset Management Asset Management Management (since May 2004);
345 Park Avenue President and Chief Executive Officer of The
New York, NY 10154 Brazil Fund, Inc., The Korea Fund, Inc.,
(7/17/45) Scudder Global High Income Fund, Inc., and
Scudder New Asia Fund, Inc. (since May 2004);
President and Chief Executive Officer, UBS
Fund Services (2001-2003); Chief Administrative
Officer (1998-2001) and Senior Vice President
and Director of Mutual Fund Operations (1991
to 1998) UBS Global Asset Management.
-------------------------------------- ----------------------------------------- ------------------------------------------------
Managing Director of DBIM and Global Head of Funds-of-Funds of DB Absolute
Return Strategies.
16
------------------------------------------------------------------------------------------------------------------------------------
Name, Address, and Birth Date Positions Held with Fund Principal Occupation(s) During the Last
and Master Fund Five Years
-------------------------------------- ----------------------------------------- ------------------------------------------------
Natalie Birrell President Chief Operating Officer, DBIM (2001 to present)
The Topiary Fund for Benefit Plan Formerly, Chief Operating Officer, Deutsche
Investors (BPI) LLC Asset Management (asset management division of
25 DeForest Ave. Deutsche Bank) (2000 to 2001); and Global
Summit, New Jersey 07901 Business Manager, Bankers Trust (private
(5/16/66) banking) (1994 to 2000).
-------------------------------------- ----------------------------------------- ------------------------------------------------
John T. Ferguson, Jr. Vice President Head of Product Development, DB Absolute
The Topiary Fund for Benefit Plan Return Strategies (2001 to present). Formerly,
Investors (BPI) LLC Director and Fund Manager, Baltic Small Equity
25 DeForest Ave. Fund/Small Enterprise Assistance Funds
Summit, New Jersey 07901 (private equity/venture capital firm) (1998 to
(2/3/66) 2001); and Attorney, Kramer Levin Naftalis
& Frankel (law firm) (1995 to 1998).
-------------------------------------- ----------------------------------------- ------------------------------------------------
Alexandra A. Toohey Treasurer, Principal Officer and Head of Fund Administration, DB Absolute
The Topiary Fund for Benefit Plan Accounting Officer Return Strategies (2000 to present). Formerly,
Investors (BPI) LLC Senior Manager, Fortis Fund Services Curacao
25 DeForest Ave. NV (hedge fund administrator) (1994 to 2000).
Summit, New Jersey 07901
(10/17/66)
-------------------------------------- ----------------------------------------- ------------------------------------------------
Bruce A. Rosenblum Secretary Director, Deutsche Asset Management (asset
Deutsche Asset Management management division of Deutsche Bank) (2002 to
One South St. present). Formerly, Vice President, Deutsche
Baltimore, Maryland 21202 Asset Management (2000 to 2002); Partner,
(9/14/60) Freedman, Levy, Kroll & Simonds (law firm)
(1997 to 1999).
-------------------------------------- ----------------------------------------- ------------------------------------------------
Daniel O. Hirsch Assistant Secretary Managing Director, Deutsche Asset Management
Deutsche Asset Management (asset management division of Deutsche Bank)
One South St. (2002 to present) and Director, Deutsche
Baltimore, Maryland 21202 Global Funds Ltd. (Cayman Islands fund)
(3/27/54) (2002 to present). Formerly, Director,
Deutsche Asset Management (1999 to 2002);
Principal, BT Alex. Brown Incorporated (now
Deutsche Bank Securities Inc.) (financial
services firm) (1998 to 1999); and Assistant
General Counsel, U.S. Securities and Exchange
Commission (1993 to 1998).
-------------------------------------- ----------------------------------------- ------------------------------------------------
John H. Kim Assistant Secretary Director, Deutsche Asset Management (asset
Deutsche Asset Management management division of Deutsche Bank) (2001 to
25 DeForest Avenue present); Senior Associate, Willkie Farr &
Summit, New Jersey 07901 Gallagher (law firm) (1995-
(1/9/71)
-------------------------------------- ----------------------------------------- ------------------------------------------------
17
------------------------------------------------------------------------------------------------------------------------------------
Name, Address, and Birth Date Positions Held with Fund Principal Occupation(s) During the Last
and Master Fund Five Years
-------------------------------------- ----------------------------------------- ------------------------------------------------
2001).
-------------------------------------- ----------------------------------------- ------------------------------------------------
Anthony Conte Assistant Treasurer Head of Compliance, DB Absolute Return
Deutsche Asset Management Strategies (2001 to present); Head of
25 DeForest Avenue Compliance, CIBC World Markets Corp.
Summit, New Jersey 07901 (1999-2001).
(3/28/69)
-------------------------------------- ----------------------------------------- ------------------------------------------------
Committees of the Board and the Master Fund's Board
Each of the Fund's Board and the Master Fund's Board has formed an Audit
Committee that is responsible for overseeing the Fund's accounting and
financial reporting policies and practices, its internal controls, and, as
appropriate, the internal controls of certain service providers; overseeing
the quality and objectivity of the Fund's and the Master Fund's financial
statements and the independent audit of those financial statements; and acting
as a liaison between the Fund's and the Master Fund's independent auditors and
the full Board or Master Fund's Board. The Audit Committee will recommend the
selection, retention, or termination of the Fund's and the Master Fund's
auditors, evaluates their independence, and reviews their fees. The Audit
Committee currently consists of each of the Fund's and the Master Fund's
Independent Directors.
Each of the Board and the Master Fund's Board has designated the valuation
committee of DB Absolute Return Strategies, which is affiliated with the
Adviser, to serve as the valuation committee of the Fund and the Master Fund
(the "Valuation Committee"). The Valuation Committee's function, subject to
the oversight of the Board, will generally be to review the Fund's and the
Master Fund's valuation methodologies, valuation determinations, and any
information provided to the Valuation Committee by the Adviser. The Valuation
Committee has been assigned to act in accordance with the Fund's valuation
procedures as approved by the Board. Changes in its membership are subject to
Board notification. The Board will review matters arising from the Valuation
Committee's considerations. Members may request information about the members
of the Valuation Committee by written request to the Fund.
Each of the Board and the Master Fund's Board has formed a Nominating and
Corporate Governance Committee. The Nominating and Corporate Governance
Committee has the power to nominate directors of the Fund and the Master
Fund's who are not "interested persons" of the Fund or the Master Fund, as the
case may be, as that term is defined in the 1940 Act, and to nominate officers
of the Fund and the Master Fund's and appoint officers of the Fund and the
Master Fund to serve until the next meeting of the Board succeeding such
action. The Committee currently consists of each of the Fund's and the Master
Fund's Independent Directors. The Nominating Committee does not currently have
a policy regarding whether it will consider nominees recommended by Members.
All actions taken by a committee of the Board or the Master Fund's Board will
be recorded and reported to the full Board or the Master Fund's Board at their
next meeting following such actions.
18
Director Ownership of Securities
The dollar range of equity securities owned by each Director is set forth
below.(1)
---------------------------------------- --------------------------------------------- --------------------------------------------
Aggregate Dollar Range of Equity
Dollar Range of Equity Securities Securities in all Registered Investment
Name of Director in the Fund as of December 31, Companies Overseen by Director in Family
2003(1) of Investment Companies as of December 31,
2003(1)
---------------------------------------- --------------------------------------------- --------------------------------------------
Independent Directors
---------------------------------------- ------------------------------------------------------------------------------------------
Nolan T. Altman None None
---------------------------------------- --------------------------------------------- --------------------------------------------
Louis S. Citron None None
---------------------------------------- --------------------------------------------- --------------------------------------------
Edward T. Tokar None None
---------------------------------------- --------------------------------------------- --------------------------------------------
Directors who are "Interested Persons"
---------------------------------------- ------------------------------------------------------------------------------------------
Raymond C. Nolte None over $100,000
---------------------------------------- --------------------------------------------- --------------------------------------------
(1) The dollar ranges of equity securities reflected in the table above are
as follows: None; $1 to $10,000; $10,001 to $50,000; $50,001 to $100,000;
or over $100,000.
Independent Director Ownership of Securities
The table below provides information regarding the ownership by each
Independent Director (and his immediate family members) of securities of the
Adviser or the Distributor, and the ownership of securities in an entity
controlling, controlled by or under common control with the Adviser or the
Distributor (not including registered investment companies), as of December
31, 2003.
----------------------------- --------------------- --------------- -------------------- --------------------- ---------------------
Name of
Name of Director Owners and Company Title of Class Value of Percentage of
Relationship to Securities Class
Director
----------------------------- --------------------- --------------- -------------------- --------------------- ---------------------
Nolan T. Altman N/A N/A N/A $0 N/A
----------------------------- --------------------- -------------- -------------------- --------------------- ----------------------
Louis S. Citron N/A N/A N/A $0 N/A
----------------------------- --------------------- -------------- -------------------- --------------------- ----------------------
Edward T. Tokar N/A N/A N/A $0 N/A
----------------------------- --------------------- -------------- -------------------- --------------------- ----------------------
Director Compensation
The Fund will pay each Independent Director a fee of $2,000 per Board meeting
($250 in the case of a telephonic Board meeting), plus an annual retainer of
$10,000. Mr. Altman, as chairman of the Audit Committee, will receive an
additional annual fee of $2,000. In addition, the Fund will reimburse each of
the Independent Directors for travel and other expenses incurred in connection
with attendance at such meetings. Each of the Independent Directors is a
member of the Audit Committee and/or Nominating and Corporate Governance
Committee, and receive a fee for each meeting attended. Other officers and
Directors of the Fund receive no compensation. The Master Fund will pay the
Independent Directors the same fees as the Fund.
Directors and officers of the Fund also may be trustees/directors and officers
of some or all of the other investment companies managed by the Adviser or its
affiliates (the "Fund Complex"), including the Master Fund. Mr. Tokar served
as an independent trustee of various funds in the Fund Complex. He resigned
from these positions, effective July 30, 2002.
The following table summarizes the compensation to be paid to the
Directors of the Fund and the Master Fund, including Committee fees, for the
period [o], 2004 through March 31, 2005.
19
TOTAL
PENSION OR COMPENSATION
RETIREMENT FROM FUND
BENEFITS ESTIMATED AND FUND
AGGREGATE ACCRUED AS ANNUAL COMPLEX PAID
NAME OF COMPENSATION PART OF FUND BENEFITS UPON TO
DIRECTOR FROM FUND EXPENSES RETIREMENT DIRECTOR(1)(2)
Nolan T. Altman N/A N/A N/A $24,000
Louis S. Citron N/A N/A N/A $24,000
Raymond C. Nolte(3) N/A N/A N/A N/A
Edward T. Tokar N/A N/A N/A $24,000
------------
(1) The Fund Complex includes the Fund, the Master Fund, and the DB Hedge
Strategies Fund LLC.
(2) Since the Fund has not yet commenced operations, the information
furnished is an estimated amount for the Fund's fiscal year ending March
31, 2005.
(3) "Interested person" as defined in the 1940 Act of the Fund. Interested
persons who are employees of the Adviser and any of its affiliates and
who serve as Directors do not receive compensation from the Fund.
LIQUIDITY REQUIREMENTS
The Fund's portfolio is not subject to any minimum liquidity requirement.
CODE OF ETHICS
The Fund, the Master Fund, and the Adviser each has adopted a code of ethics
as required by applicable law, which is designed to prevent affiliated persons
of the Fund, the Master Fund, and the Adviser from engaging in deceptive,
manipulative, or fraudulent activities in connection with securities held or
to be acquired by the Fund or the Master Fund (which may also be held by
persons subject to a code of ethics). There can be no assurance that the codes
of ethics will be effective in preventing such activities. Each code of ethics
may be examined on the Internet from the SEC's website at www.sec.gov. In
addition, each code of ethics can be reviewed and copied at the SEC's Public
Reference Room in Washington, D.C. Information on the operation of the Public
Reference Room may be obtained by calling the SEC at 1-202-942-8090. Copies of
these codes of ethics may be obtained, after paying a duplicating fee, by
electronic request at the following email address: publicinfo@sec.gov, or by
writing the SEC's Public Reference Section, Washington, DC 20549-0102.
The Adviser's code of ethics allows personnel to invest in securities for
their own account, but requires compliance with the code's pre-clearance
requirements and other restrictions including "blackout periods" and minimum
holding periods, subject to limited exceptions. The code of ethics prohibits
purchases of securities in initial public offerings (the prohibition is
limited to U.S. public offerings) and requires prior approval for purchases of
securities in private placements.
PERFORMANCE INFORMATION
Advertisements and sales literature relating to the Fund as well as reports to
Members may include quotations of investment performance. In these materials,
the Fund's performance will normally be portrayed as the net return to an
investor in the Fund during each month or quarter of the period for which the
investment performance is being shown. Cumulative performance and year-to-date
performance computed by aggregating quarterly or monthly
20
return data may also be used. Investment returns will be reported on a net
basis, after all fees and expenses. Other methods also may be used to portray
the Fund's investment performance.
The Fund's performance results will vary from time to time, and past results
are not necessarily indicative of future investment results.
Comparative performance information, as well as any published ratings,
rankings and analyses, reports and articles discussing the Fund, may also be
used to advertise or market the Fund, including data and materials prepared by
recognized sources of such information. Such information may include
comparisons of the Fund's investment performance to the performance of
recognized market indices and indices, including but not limited to the
Standard & Poor's 500, the Russell 2000, or other lesser known indices
(including indices of other pooled investment vehicles investing in hedge
funds and private equity venture and buyout funds), such as Hedge Fund
Research Inc.'s HFRI Equity Hedge Index, or Venture Economics' U.S. Private
Equity Performance Index. Comparisons also may be made to economic and
financial trends and data that may be relevant for investors to consider in
determining whether to invest in the Fund.
INVESTMENT MANAGEMENT AND OTHER SERVICES
The Adviser. Under an investment management agreement (the "Investment
Management Agreement") with the Master Fund, DBIM, a registered investment
adviser, provides supervisory and administrative services to the Master Fund,
including supervision of the Master Fund's investment program. DBIM's address
is 25 DeForest Avenue, Summit, New Jersey 07901. As the Master Fund's
investment adviser, DBIM will make the Master Fund's investment decisions.
DBIM will buy and sell securities for the Master Fund and conduct the research
that leads to the purchase and sale decisions. As necessary, DBIM will also be
responsible for selecting brokers and dealers and for negotiating brokerage
commissions and dealer charges or other transaction costs.
DBIM is an indirect, wholly owned subsidiary of Deutsche Bank, an
international commercial and investment banking group. Deutsche Bank is a
major global banking institution that is engaged in a wide range of financial
services activities, including investment management; mutual funds; retail,
private, and commercial banking; investment banking; and insurance.
DB Absolute Return Strategies is the marketing name for the absolute return
strategies activities of Deutsche Bank AG and certain of its subsidiaries,
including DBIM, Deutsche Asset Management, Inc., Deutsche Bank Trust Company
Americas, Deutsche Bank Securities Inc., Deutsche Asset Management
Investmentgesellschaft mbH Frankfurt am Main, Deutsche Asset Management
(Australia) Limited, and Deutsche Asset Management Limited. DBIM serves as
investment adviser to this Fund and other institutional and privately managed
accounts. As of March 31, 2004, DB Absolute Return Strategies (including DBIM)
had total assets of approximately US $8.9 billion under management. As of
March 31, 2004, Deutsche Bank had total assets of approximately U.S. $725
billion under management.
DBIM and its affiliates serve as investment adviser to other registered and/or
private investment funds that utilize investment programs similar to that of
the Fund and the Master Fund, and DBIM and/or its affiliates may in the future
serve as an investment adviser or general partner of other registered and/or
private investment companies with similar investment programs.
Subject to the general supervision of the Board and in accordance with the
investment objective, policies, and restrictions of the Master Fund, DBIM will
provide the Master Fund with ongoing investment guidance, policy direction,
and monitoring of the Master Fund pursuant to the Investment Management
Agreement. The Investment Management Agreement may be terminated by the Board,
by a majority vote of the members of the Master Fund, or by the Adviser.
The Investment Management Agreement. The Investment Management Agreement
provides that the Adviser will provide (either directly or through its
delegate) portfolio management services, place portfolio transactions in
accordance with the Master Fund's registration statement, assist the Master
Fund generally in the conduct of its business, maintain or cause to be
maintained necessary books and records of the Master Fund, furnish office
space
21
for the Master Fund's officers and employees, and render services on behalf of
the Master Fund (not otherwise provided by third parties) necessary for the
Master Fund's operating as a closed-end investment company. Subject to the
Board's oversight, the Adviser has agreed, among other things, to: make
investment decisions and provide a program of continuous investment management
for the Master Fund; prepare, obtain, evaluate, and make available to the
Master Fund research and statistical data; obtain and evaluate information and
advice relating to the economy, securities markets, and securities; buy,
retain, and sell investments, securities, and cash; purchase and redeem
securities of Investment Master Funds; select brokers or dealers to execute
transactions; provide on an ongoing evaluation of the Master Fund's portfolio;
determine or recommend the extent to which the Master Fund's portfolio shall
be invested, and what portion, if any, should be held uninvested; and maintain
or cause to be maintained for the Master Fund all books, records, reports, and
any other information required under the 1940 Act, to the extent that such
books, records, and reports, and other information are not maintained or
furnished by another service provider of the Master Fund.
Under the Investment Management Agreement, the Master Fund will be responsible
for its expenses, including fees payable to the Adviser and to any
consultants, including an advisory board, if applicable; legal expenses;
auditing and accounting expenses; telephone, telex, facsimile, postage, and
other communications expenses; taxes and governmental fees; fees, dues, and
expenses incurred by the Master Fund or with respect to the Master Fund in
connection with membership in investment company trade organizations; costs of
insurance relating to fidelity coverage for the Master Fund's officers and
employees; fees and expenses of the Master Fund's administrator and any
custodian, subcustodian, transfer agent, and registrar, or distribution
disbursing agent or any other agent of the Master Fund; payment for portfolio
pricing or valuation services to pricing agents, accountants, bankers, and
other specialists, if any; expenses of preparing certificates and other
expenses in connection with the issuance, offering, distribution, sale, or
underwriting of Interests issued by the Master Fund; expenses of registering
or qualifying Interests for sale; expenses relating to investor and public
relations; freight, insurance, and other charges in connection with the
shipment of the Master Fund's portfolio securities; brokerage commissions or
other costs of acquiring or disposing of any portfolio securities of the
Master Fund or of entering into other transactions or engaging in any
investment practices with respect to the Master Fund; expenses of preparing
and distributing prospectuses, SAIs, reports, notices, and distributions to
Members; costs of stationery; costs of Members' and other meetings; and
litigation expenses.
The Adviser will be responsible for the payment of the compensation and
expenses of all Directors, officers, and executive employees of the Fund and
the Master Fund (including the Fund and the Master Fund's interest of payroll
taxes, if any) affiliated with the Adviser and making available, without
expense to the Fund and the Master Fund, the services of such Directors,
officers, and employees as may duly be elected officers of the Fund and the
Master Fund, subject to their individual consent to serve and to any
limitations imposed by law, except that the Fund and the Master Fund are
responsible for the fees and expenses (specifically including travel expenses
relating to Fund and the Master Fund business) of its Independent Directors.
The Investment Management Agreement further provides that the Adviser will not
be liable for any error of judgment or mistake of law or for any loss suffered
by the Master Fund in connection with matters to which such agreement relates,
except a loss resulting from willful misfeasance, bad faith, or gross
negligence on the part of the Adviser in the performance of its duties or from
reckless disregard by the Adviser of its obligations and duties under such
agreement. The Investment Management Agreement also provides that purchase and
sale opportunities, which are suitable for more than one client of the
Adviser, will be allocated by the Adviser in an fair and equitable manner.
The Master Fund will pay an asset-based fee to the Adviser for its management
services at an annual rate of 1.0% of the Master Fund's month-end net assets,
including assets attributable to the Adviser (or its affiliates) and before
giving effect to any repurchases by the Master Fund of interests. The fee is
accrued monthly and paid quarterly.
In addition, the Operating Agreement provides that as of each March 31, upon
any repurchase of Interests (solely with respect to the Interests
repurchased), and upon termination of the Fund (each, a "Performance Period"),
an Incentive Allocation will be made from the Capital Account of each Member
(other than the Adviser) to the Capital Account of the Adviser. The Incentive
Allocation will be equal to 10% of the amount, if any, by which (i) the net
profit, if any, initially allocated to such Member's Capital Account during
such Performance Period in excess of the Hurdle for such Performance Period
exceeds (ii) the positive balance, if any, as of the beginning of such
Performance Period in such Member's Loss Carryforward Account; provided, that
the Hurdle will be adjusted
22
appropriately for additional Capital Contributions or repurchases made by the
relevant Member during such Performance Period.
The Investment Management Agreement will remain in effect for two years from
its date of execution, and will continue in effect from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually by the affirmative vote of (i) a majority of the members of the
Master Fund's Board who are not parties to the Investment Management Agreement
or interested persons of any party to the Investment Management Agreement, or
of any entity regularly furnishing investment advisory services with respect
to the Master Fund pursuant to an agreement with any party to the Agreement,
cast in person at a meeting called for the purpose of voting on such approval,
and (ii) a majority of the Master Fund's Board or the holders of a majority of
the outstanding voting securities of the Master Fund.
In considering the Investment Management Agreement, the Board considered
several factors it believed, in light of the legal advice furnished to it by
counsel and its own business judgment, to be relevant. The factors considered
by the Board in reviewing the Investment Management Agreement included, but
were not limited to the following: (i) the nature and quality of the services
to be provided by the Adviser; (ii) the fairness of the Investment Management
Fee paid to the Adviser under the Investment Management Agreement and the
Incentive Allocation to be made to the Adviser under the Operating Agreement
in light of the services to be provided; (iii) the personnel, operations,
financial condition, and investment management capabilities, methodologies,
and performance of the Adviser; and (iv) the expenses to be borne by members.
In reviewing these factors, the Board considered, among other things:
comparative data with respect to similar funds, including those for which the
investment adviser earns a performance-based fee; factors relating to the
Fund's investments in Investment Funds; the fact that the Master Fund is a
closed-end fund that may periodically repurchase interests from members; and
other factors bearing on the quality of the services to be provided to the
Master Fund and the cost to members. The Board considered the appropriateness
of the Incentive Allocation in conjunction with its consideration of the
Investment Management Agreement. The Board discussed the fact that the
Incentive Allocation, although not paid as a term of the Investment Management
Agreement, was a component of the Adviser's compensation, and that
accordingly, the Board could refuse to approve such allocation. Based upon its
review, the Board has determined that the Investment Management Agreement (and
the Incentive Allocation) is in the interest of the Master Fund and its
members. Accordingly, after consideration of the factors described above, and
such other factors and information it considered relevant, the Board,
including the unanimous vote of the Independent Directors, approved the
Investment Management Agreement (and the Incentive Allocation).
The Investment Management Agreement may be terminated at any time without
penalty, on 60 days' written notice, by the Master Fund's Board, by vote of
holders of a majority of the outstanding voting securities of the Master Fund,
or by the Adviser. The Investment Management Agreement will automatically be
terminated in the event of its assignment, as defined in the 1940 Act,
provided that an assignment to a corporate successor to all or substantially
all of the Adviser's business or to a wholly owned subsidiary of such
corporate successor which does not result in a change of actual control or
management of the Adviser's business will not be deemed to be an assignment
for the purposes of the Investment Management Agreement.
INDEPENDENT AUDITORS
PricewaterhouseCoopers LLP, whose principal business address is 1177 Avenue of
the Americas, New York, New York 10036, has been selected as independent
auditors for the Fund and the Master Fund and in such capacity will audit the
Fund's and the Master Fund's annual financial statements and financial
highlights.
The Fund will furnish, without charge, a copy of its Annual and Semi-Annual
Reports to Members upon request to the Fund. Members may write to Scudder
Distributors, Inc. at 222 South Riverside Plaza, Attn: Correspondence 27th
Floor, Chicago, IL 60606-1048, or call Scudder Distributors, Inc. at
1-888-262-0695.
DISTRIBUTOR
The Distributor, Scudder Distributors, Inc., 222 South Riverside Plaza, Attn:
Correspondence 27th Floor, Chicago, IL 60606-1048, will act as distributor of
the Interests during the continuous offering of the Interests pursuant to the
Underwriting Agreement. Pursuant to the Underwriting Agreement, the
Distributor bears all of its expenses of
23
providing distribution services as described under that agreement. The Fund
will assume and pay all charges and expenses of its operations not
specifically assumed or otherwise to be provided by the Distributor under the
Underwriting Agreement. The Fund will pay (or will enter into arrangements
providing that others will pay), among other things: (i) all fees and expenses
in connection with the registration of the Fund and the Interests under the
United States securities laws and the registration and qualification of
Interests for sale in the various jurisdictions in which the Fund shall
determine it advisable to qualify such Interests for sale; and (ii) the cost
of preparing and printing of sufficient copies of the Fund's prospectus, SAI,
and any other sales material (and any supplements or amendments thereto).
The Underwriting Agreement continues in effect for two years from its date of
execution and from year to year thereafter, so long as such continuance is
approved at least annually by a vote of the Board, including the Independent
Directors who have no direct or indirect financial interest in the
Underwriting Agreement. The Underwriting Agreement may be terminated at any
time without the payment of any penalty on sixty days' written notice by the
Distributor or by the Fund by (i) a vote of a majority of the Board, and a
majority of the Independent Directors who have no direct or indirect financial
interest in the Underwriting Agreement, or (ii) a "majority of the outstanding
voting securities" of the Fund, as defined under the 1940 Act. The
Underwriting Agreement will automatically be terminated in the event of its
assignment, as defined in the 1940 Act, provided that an assignment to a
corporate successor to all or substantially all of the Distributor's business
or to a wholly owned subsidiary of such corporate successor which does not
result in a change of actual control or management of the Distributor's
business will not be deemed to be an assignment for the purposes of the
Underwriting Agreement.
CALCULATION OF FEES
If, consistent with the provisions of the Operating Agreement and the Fund's
currently effective registration statement, the determination of net asset
value is suspended or net asset value is otherwise not calculated on a
particular day, then for purposes of calculating and accruing any fee payable
by the Fund that is based on the Fund's net asset value, such fee will be
computed on the basis of the value of the Fund's net assets as last
calculated.
LEGAL COUNSEL
Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New York, New York 10019,
acts as counsel to the Fund and the Master Fund. Walkers Walker House, PO Box
265GT, Mary Street, George Town, Grand Cayman, Cayman Islands, acts as counsel
to the Offshore Fund.
PORTFOLIO TRANSACTIONS
The Master Fund anticipates that many of its transactions will be effected
directly with Investment Funds and such transactions may not be subject to
brokerage commissions. In some instances, however, the Master Fund may incur
expenses in connection with effecting its portfolio transactions, including
the payment of brokerage commissions or fees payable to Investment Funds or
parties acting on behalf of or at the direction of Investment Funds. Portfolio
transaction orders may be directed to any broker, including, to the extent and
in the manner permitted by applicable law, the Distributor or its affiliates,
and other affiliates of the Fund.
PROXY VOTING POLICIES AND PROCEDURES
The Fund will invest substantially all of its assets in the Offshore Fund,
which in turn will invest in the Master Fund, which in turn will invest in the
securities of Investment Funds, which are privately placed investment
vehicles, typically referred to as "hedge funds." These securities do not
typically convey traditional voting rights to the holder and the occurrence of
corporate governance or other notices for this type of investment is
substantially less than that encountered in connection with registered equity
securities. On occasion, however, the Adviser and/or the Master Fund may
receive notices from the Investment Funds seeking the consent of holders in
order to materially change certain rights within the structure of the security
itself or change material terms of the Investment Fund's articles of
association, limited partnership agreement, limited liability company
operating agreement or similar agreement with investors. To the extent that
the Master Fund receives notices or proxies from Investment Funds (or receives
proxy statements or similar notices in connection with any other portfolio
securities), the Master Fund has
24
delegated proxy voting responsibilities with respect to the Master Fund's
portfolio securities to the Adviser, subject to the Board's general oversight
and with the direction that proxies should be voted consistent with the Master
Fund's best economic interests. The Adviser has adopted its own Proxy Voting
Policies and Procedures ("Policies") for this purpose. The Policies address,
among other things, conflicts of interest that may arise between the interests
of the Master Fund, and the interests of the Adviser and its affiliates,
including the Master Fund's principal underwriter.
The Policies describe the way in which the Adviser resolves conflicts of
interest. To resolve conflicts, the Adviser, under normal circumstances, votes
proxies in accordance with its guidelines. If the Adviser departs from the
Policies with respect to a particular proxy or if the Policies do not
specifically address a certain proxy proposal, a committee established by the
Adviser will vote the proxy. Before voting any such proxy, however, the
committee will exclude from the voting discussions and determinations any
member who is involved in or aware of a material conflict of interest. If,
after excluding any and all such members, there are fewer than three voting
members remaining, the Adviser will engage in independent third party to vote
the proxy or follow the proxy voting recommendations of an independent third
party.
Under certain circumstances, the Adviser may not be able to vote proxies or
may find that the expected economic costs from voting outweigh the benefits
associated with voting. For example, the Adviser may not vote proxies on
certain foreign securities due to local restrictions or customs. The Adviser
generally does not vote proxies on securities subject to share blocking
restrictions.
The Fund and the Master Fund will be required to file new Form N-PX, with its
complete proxy voting record for the twelve months ended June 30, no later
than August 31 of each year. The first such filing will be due no later than
August 31, 2004 for the period from the commencement of operations of the Fund
and the Master Fund to June 30, 2004. Once filed, the Fund's and the Master
Fund's Form N-PX will be available: (i) without charge, upon request, by
calling the Fund at 1-888-262-0695; or (ii) by visiting the SEC's website at
www.sec.gov.
PRIVACY STATEMENT
This privacy statement is issued by the Fund, the Master Fund the Adviser, and
their affiliates. The Fund, the Master Fund, and the Adviser consider privacy
to be fundamental to investor relationships and adhere to the policies and
practices described below to protect current and former investors' nonpublic
personal information.
The Fund, the Master Fund and the Adviser do not disclose nonpublic personal
information about investors or former investors to third parties other than as
described herein. The Fund, the Master Fund and the Adviser never sell
investor lists or individual investor information. Internal policies are in
place to protect confidentiality, while allowing investor needs to be served.
Only individuals who need to do so in carrying out their job responsibilities
may access investor information. The Fund, the Master Fund and the Adviser
maintain, physical, electronic, and procedural safeguards that comply with
federal standards to protect confidentiality. These safeguards extend to all
forms of interaction with the Fund, the Master Fund and the Adviser, including
the internet.
In the normal course of business, investors give the Fund, the Master Fund and
the Adviser nonpublic personal information on subscription documents and other
forms, on websites, and through transactions with affiliates of the Investment
Adviser. The Fund, the Master Fund and the Adviser collect information about
investors (such as name, address, taxpayer identification number, assets, and
income) and the investors' transactions with the Fund, the Master Fund and the
Adviser and their respective affiliates (such as investments, performances,
and account balances). To enable the Fund, the Master Fund and the Adviser to
serve investors, information may be shared with affiliates and third parties
that perform various services for the Fund, the Master Fund and the Adviser,
such as transfer agents, lawyers, custodians, administrators, and
broker-dealers. This shared information includes identification information
(e.g., name and address), transaction and experience information (e.g.,
account balance), and other information necessary to accomplish transactions.
This information may be shared with affiliates, with companies with which the
Fund, the Master Fund and the Adviser have marketing agreements, or with other
parties only as permissible by law. Any organization receiving client
information may only use it for the purpose designated by the Adviser or its
affiliates.
25
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(1) Financial Statements:
As the Registrant has no assets, financial statements are omitted.
(2) Exhibits:
(a) (i) Amended Certificate of Formation of Limited Liability
Company.
(ii) Form of Limited Liability Company Operating Agreement.(1)
(b) Not applicable.
(c) Not applicable.
(d) See Item 24 (2)(a)(2).
(e) Not applicable.
(f) Not applicable.
(g) (i) Not applicable.
(h) (i) Form of Underwriting and Distribution Services
Agreement between Scudder Distributors, Inc. and the
Registrant.(2)
(ii) Form of Selling Group Agreement.(2)
(i) Not applicable.
(j) Form of Custody Agreement between PFPC Trust Company and the
Registrant.(2)
(k) (i) Form of Administration and Accounting Services
Agreement between PFPC Inc. and the Registrant.(2)
(ii) Form of Services Agreement between Investment Company
Capital Corp. and the Registrant.(2)
(iii) Form of Escrow Agreement between PFPC, Inc. and the
Registrant.(2)
(l) Opinion and Consent of Counsel.(3)
(m) Not applicable.
--------
(1) Included as Appendix B to the Prospectus, which is Part A of this
registration statement.
(2) Previously filed as an Exhibit to the Registrant's initial registration
statement (Reg. Nos. 333-111561, 811-21480) on December 24, 2003 (the
"Registration Statement").
(3) To be filed by amendment.
(n) Consent of Independent Auditors.(4)
(o) Not applicable.
(p) Form of Subscription Agent Agreement for Initial Capital.(4)
(q) Not applicable.
(r) (i) Code of Ethics of the Registrant.(5)
(ii) Code of Ethics of the Adviser and Distributor.(6)
(iii) Code of Ethics for Senior Officers of the
Registrant.(5)
ITEM 25. MARKETING ARRANGEMENTS
See the Underwriting and Distribution Services Agreement to be
filed as exhibit (h)(1) to this Registration Statement.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
All figures are estimates
Registration fees
Printing and Engraving Expenses
Legal fees and expenses
National Association of Securities Dealers, Inc. Fees
Accounting Fees and Expenses
Transfer Agents' Fees
Miscellaneous Expenses
-----
Total
ITEM 27. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
Not applicable.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
Registrant currently has no securities outstanding.
------------------
(4) To be filed by amendment.
(5) Previously filed as an Exhibit to the Registrant's initial registration
statement (Reg. Nos. 333-111561, 811-21480) on December 24, 2003 (the
"Registration Statement").
(6) Incorporated by reference to the registration statement of DB Hedge
Strategies Fund LLC filed under the 1940 Act on Form N-2 (File No. 811-10561),
as filed with the Securities and Exchange Commission (the "SEC") on August 27,
2002.
* To be completed by amendment.
ITEM 29. INDEMNIFICATION
A policy of insurance covering DB Investment Managers, Inc. its
affiliates, and all of the registered investment companies advised by DB
Investment Managers, Inc. will be obtained to insure the Registrant's trustees
and officers and others against liability arising by reason of an alleged
breach of duty caused by any negligent act, error or accidental omission in
the scope of their duties. Article III, Section 3.7 of the Registrant's
Operating Agreement is as follows:
(a) To the fullest extent permitted by law, the Fund shall, subject to
Section 3.7(b) hereof, indemnify each Director (including for this
purpose their executors, heirs, assigns, successors, or other legal
representatives), the Investment Adviser and Tax Matters Member
(including for this purpose each affiliate, shareholder, partner, member,
officer, director, principal, employee, or agent of the Investment
Adviser and the Tax Matters Member) and the executors, heirs, assigns,
successors, or other legal representatives of each of the foregoing, and
of any person who controls or is under common control, or otherwise
affiliated, with the Investment Adviser or the Tax Matters Member (and
their executors, heirs, assigns, successors, or other legal
representatives) against all losses, claims, damages, liabilities, costs,
and expenses, including, but not limited to, amounts paid in satisfaction
of judgments, in compromise, or as fines or penalties, and reasonable
counsel fees, incurred in connection with the defense or disposition of
any action, suit, investigation, or other proceeding, whether civil or
criminal, before any judicial, arbitral, administrative, or legislative
body, in which such indemnitee may be or may have been involved as a
party or otherwise, or with which such indemnitee may be or may have been
threatened, while in office or thereafter, by reason of being or having
been a Director, Investment Adviser, or the Tax Matters Member, as the
case may be, 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
office. The rights of indemnification provided under this Section 3.7
shall not be construed so as to provide for indemnification of an
indemnitee for any liability (including liability under federal
securities laws which, under certain circumstances, impose liability even
on persons that act in good faith) to the extent (but only to the extent)
that such indemnification would be in violation of applicable law, but
shall be construed so as to effectuate the applicable provisions of this
Section 3.7 to the fullest extent permitted by law.
(b). Expenses, including reasonable counsel fees, so incurred by any such
indemnitee (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties), may be paid from time to time by
the Fund in advance of the final disposition of any such action, suit,
investigation, or proceeding upon receipt of an undertaking by or on
behalf of such indemnitee to repay to the Fund amounts so paid if it
shall ultimately be determined that indemnification of such expenses is
not authorized under Section 3.7(a) hereof; provided, however, that: (i)
such indemnitee shall provide security for such undertaking, (ii) the
Fund shall be insured by or on behalf of such indemnitee against losses
arising by reason of such indemnitee's failure to fulfill his or its
undertaking; or (iii) a majority of the Directors (excluding any Director
who is seeking advancement of expenses hereunder or is or has been a
party to any action, suit, investigation, or proceeding involving claims
similar to those involved in the action, suit, investigation, or
proceeding giving rise to a claim for advancement of expenses hereunder)
or independent legal counsel in a written opinion shall determine based
on a review of readily available facts (as opposed to a full trial-type
inquiry) that there is reason to believe such indemnitee ultimately will
be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation, or
proceeding (whether by a compromise payment, pursuant to a consent
decree, or otherwise) without an adjudication or a decision on the merits
by a court of competent jurisdiction, or by any other body before which
the proceeding shall have been brought, that an indemnitee is liable to
the Fund or its Members by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the
conduct of such indemnitee's office, indemnification shall be provided
pursuant to Section 3.7(a) hereof if: (i) approved as in the best
interests of the Fund by vote of a majority of the Directors (excluding
any Director who is seeking indemnification hereunder or is or has been a
party to any action, suit, investigation, or proceeding involving claims
similar to those involved in the action, suit, investigation, or
proceeding giving rise to a claim for advancement of expenses hereunder)
upon a determination based upon a review of readily available facts (as
opposed to a full trial-type inquiry) that such indemnitee acted in good
faith and in the reasonable belief that such actions were in the best
interests of the 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 office; or (ii) the Directors secure a written
opinion of independent legal counsel based upon a review of readily
available facts (as opposed to a full trial-type inquiry) to the effect
that such indemnitee acted in good faith and in the reasonable belief
that such actions were in the best interests of the 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 office.
(d) Any indemnification or advancement of expenses made pursuant to this
Section 3.7 shall not prevent the recovery from any indemnitee of any
such amount if such indemnitee subsequently shall be determined in a
final decision on the merits in a court of competent jurisdiction in any
action, suit, investigation, or proceeding involving the liability or
expense that gave rise to such indemnification or advancement of expenses
to be liable to the Fund or its Members by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved
in the conduct of such indemnitee's office. In any suit brought by an
indemnitee to enforce a right to indemnification under this Section 3.7
it shall be a defense that, and in any suit in the name of the 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 indemnitee has not met the applicable
standard of conduct set forth in this Section 3.7. In any such suit
brought to enforce a right to indemnification or to recover any
indemnification or advancement of expenses made pursuant to this Section
3.7, the burden of proving that the indemnitee is not entitled to be
indemnified, or to any indemnification or advancement of expenses, under
this Section 3.7 shall be on the Fund (or any Member acting derivatively
or otherwise on behalf of the Fund or its Members).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 3.7 as to which he, she,
or it may otherwise be entitled except out of the assets of the 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 Director or other person.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF THE ADVISER
To be provided by amendment.
ITEM 31 LOCATION OF ACCOUNTS AND RECORDS
Accounts and records of the Fund are maintained at the Fund's office at
25 DeForest Avenue, Summit, New Jersey 07901, or at the offices of PFPC Inc.,
at 400 Bellevue Parkway, Wilmington, Delaware, 19809, in PFPC's capacity as
administrator of the Fund.
___________ maintains all of the required records in its capacity as
transfer and dividend disbursing agent.
ITEM 32. MANAGEMENT SERVICES
Not applicable.
ITEM 33. UNDERTAKINGS
1. Not applicable.
2. Not applicable.
3. Not applicable.
4. The Registrant undertakes
(a) To file during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i)
to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts
or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(b). That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c). To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
5. Not applicable.
6. The Registrant undertakes to send by first class mail or other means
designed to ensure equally prompt delivery, within two business days of
receipt of an oral or written request, any Statement of Additional
Information.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the Investment Company Act of 1940, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of
Summit and the State of New Jersey on the 23rd of July, 2004.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS
(BPI) LLC
By: /s/ Natalie Birrell.
------------------------------------------
Name: Natalie Birrell
Title: President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following person in the capacities and on the
date indicated.
Signature Title Date
-------------------------------------------------- ------------------------------------------- ---------------
/s/ * Chief Executive Officer July 23, 2004
--------------------------------------------------
Julian Sluyters
/s/ * Treasurer, Principal Financial Officer and July 23, 2004
-------------------------------------------------- Accounting Officer
Alexandra Toohey
/s/ * Director July 23, 2004
--------------------------------------------------
Raymond C. Nolte
/s/ * Director July 23, 2004
--------------------------------------------------
Edward T. Tokar
/s/ * Director July 23, 2004
--------------------------------------------------
Louis C. Citron
/s/ * Director July 23, 2004
--------------------------------------------------
Nolan T. Altman
* By: /s/ Elizabeth Keeley
--------------------
Elizabeth Keeley,
as attorney-in-fact
---------------------------------
* Pursuant to power of attorney filed with the Securities and Exchange
Commission (the "SEC") on July 23, 2004 as an exhibit to the Registrant's
registration statement filed under the 1940 Act on Form N-2, as filed on July
23, 2004.
SIGNATURES
The Topiary Master Fund for Benefit Plan Investors (BPI) LLC has duly
caused this Registration Statement of The Topiary Fund for Benefit Plan
Investors (BPI) LLC to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Summit and the State of New Jersey on the
23rd of July, 2004.
THE TOPIARY MASTER FUND FOR BENEFIT PLAN
INVESTORS (BPI) LLC
By: /s/ Natalie Birrell
------------------------------------
Name: Natalie Birrell
Title: President
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following person in the
capacities and on the date indicated.
Signature Title Date
-------------------------------------------------- ------------------------------------------- ---------------
/s/ * Chief Executive Officer July 23, 2004
--------------------------------------------------
Julian Sluyters
/s/ * Treasurer, Principal Financial Officer and July 23, 2004
-------------------------------------------------- Accounting Officer
Alexandra Toohey
/s/ * Director July 23, 2004
--------------------------------------------------
Raymond C. Nolte
/s/ * Director July 23, 2004
--------------------------------------------------
Edward T. Tokar
/s/ * Director July 23, 2004
--------------------------------------------------
Louis C. Citron
/s/ * Director July 23, 2004
--------------------------------------------------
Nolan T. Altman
* By: /s/ Elizabeth Keeley
--------------------
Elizabeth Keeley,
as attorney-in-fact
-------------------------
* Pursuant to power of attorney filed with the Securities and Exchange
Commission (the "SEC") on July 23, 2004 as an exhibit to the Registrant's
registration statement filed under the 1940 Act on Form N-2, as filed on July
23, 2004.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, NOLAN T. ALTMAN, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and
Mitra Shakeri, and each of them singly, his true and lawful attorney-in-fact and
agent, with full power of substitution or resubstitution, to do any and all acts
and things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI) LLC
(the "Fund") to comply with the Securities Act of 1933, as amended (the "1933
Act") and the Investment Company Act of 1940, as amended (the "1940 Act"), and
any rules, regulations or requirements of the Securities and Exchange Commission
in respect thereof, in connection with the Fund's Registration Statement on Form
N-2 pursuant to the 1933 Act and the 1940 Act, together with any and all pre-
and post-effective amendments thereto, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign in the
name and on behalf of the undersigned as the President of the Fund such
Registration Statement and any and all such pre- and post-effective amendments
filed with the Securities and Exchange Commission under the 1933 Act and the
1940 Act, and any other instruments or documents related thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or either of them or their substitute or substitutes, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Nolan T. Altman
--------------------------------------
Nolan T. Altman
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, LOUIS S. CITRON, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and
Mitra Shakeri, and each of them singly, his true and lawful attorney-in-fact and
agent, with full power of substitution or resubstitution, to do any and all acts
and things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI) LLC
(the "Fund") to comply with the Securities Act of 1933, as amended (the "1933
Act") and the Investment Company Act of 1940, as amended (the "1940 Act"), and
any rules, regulations or requirements of the Securities and Exchange Commission
in respect thereof, in connection with the Fund's Registration Statement on Form
N-2 pursuant to the 1933 Act and the 1940 Act, together with any and all pre-
and post-effective amendments thereto, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign in the
name and on behalf of the undersigned as the President of the Fund such
Registration Statement and any and all such pre- and post-effective amendments
filed with the Securities and Exchange Commission under the 1933 Act and the
1940 Act, and any other instruments or documents related thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or either of them or their substitute or substitutes, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Louis S. Citron
------------------------------------
LOUIS S. CITRON
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, EDWARD T. TOKAR, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and
Mitra Shakeri, and each of them singly, his true and lawful attorney-in-fact and
agent, with full power of substitution or resubstitution, to do any and all acts
and things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI) LLC
(the "Fund") to comply with the Securities Act of 1933, as amended (the "1933
Act") and the Investment Company Act of 1940, as amended (the "1940 Act"), and
any rules, regulations or requirements of the Securities and Exchange Commission
in respect thereof, in connection with the Fund's Registration Statement on Form
N-2 pursuant to the 1933 Act and the 1940 Act, together with any and all pre-
and post-effective amendments thereto, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign in the
name and on behalf of the undersigned as the President of the Fund such
Registration Statement and any and all such pre- and post-effective amendments
filed with the Securities and Exchange Commission under the 1933 Act and the
1940 Act, and any other instruments or documents related thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or either of them or their substitute or substitutes, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Edward T. Tokar
-------------------------------------
EDWARD T. TOKAR
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, RAYMOND C. NOLTE, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and
Mitra Shakeri, and each of them singly, his true and lawful attorney-in-fact and
agent, with full power of substitution or resubstitution, to do any and all acts
and things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI) LLC
(the "Fund") to comply with the Securities Act of 1933, as amended (the "1933
Act") and the Investment Company Act of 1940, as amended (the "1940 Act"), and
any rules, regulations or requirements of the Securities and Exchange Commission
in respect thereof, in connection with the Fund's Registration Statement on Form
N-2 pursuant to the 1933 Act and the 1940 Act, together with any and all pre-
and post-effective amendments thereto, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign in the
name and on behalf of the undersigned as the President of the Fund such
Registration Statement and any and all such pre- and post-effective amendments
filed with the Securities and Exchange Commission under the 1933 Act and the
1940 Act, and any other instruments or documents related thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or either of them or their substitute or substitutes, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Raymond C. Nolte
------------------------------------
RAYMOND C. NOLTE
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, JULIAN SLUYTERS, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum,
and Mitra Shakeri, and each of them singly, his true and lawful
attorney-in-fact and agent, with full power of substitution or resubstitution,
to do any and all acts and things and to execute any and all instruments, in
his name, place and stead, which said attorney-in-fact and agent may deem
necessary or advisable or which may be required to enable The Topiary Fund for
Benefit Plan Investors (BPI) LLC (the "Fund") to comply with the Securities
Act of 1933, as amended (the "1933 Act") and the Investment Company Act of
1940, as amended (the "1940 Act"), and any rules, regulations or requirements
of the Securities and Exchange Commission in respect thereof, in connection
with the Fund's Registration Statement on Form N-2 pursuant to the 1933 Act
and the 1940 Act, together with any and all pre- and post-effective amendments
thereto, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign in the name and on behalf of the
undersigned as the Chief Executive Officer of the Fund such Registration
Statement and any and all such pre- and post-effective amendments filed with
the Securities and Exchange Commission under the 1933 Act and the 1940 Act,
and any other instruments or documents related thereto, and the undersigned
does hereby ratify and confirm all that said attorney-in-fact and agent, or
either of them or their substitute or substitutes, shall lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Julian Sluyters
-----------------------------
JULIAN SLUYTERS
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, ALEXANDRA TOOHEY, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and Mitra Shakeri,
and each of them singly, his true and lawful attorney-in-fact and agent, with
full power of substitution or resubstitution, to do any and all acts and
things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI)
LLC (the "Fund") to comply with the Securities Act of 1933, as amended (the
"1933 Act") and the Investment Company Act of 1940, as amended (the "1940
Act"), and any rules, regulations or requirements of the Securities and
Exchange Commission in respect thereof, in connection with the Fund's
Registration Statement on Form N-2 pursuant to the 1933 Act and the 1940 Act,
together with any and all pre- and post-effective amendments thereto,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign in the name and on behalf of the undersigned
as the Treasurer, Principal Financial Officer and Accounting Officer of the
Fund such Registration Statement and any and all such pre- and post-effective
amendments filed with the Securities and Exchange Commission under the 1933
Act and the 1940 Act, and any other instruments or documents related thereto,
and the undersigned does hereby ratify and confirm all that said
attorney-in-fact and agent, or either of them or their substitute or
substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Alexandra Toohey
----------------------------------
ALEXANDRA TOOHEY
DATE: July 20, 2004
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, NATALIE BIRRELL, whose
signature appears below, does hereby constitute and appoint John T. Ferguson,
Jr., Alexandra Toohey, John MacKinnon, Elizabeth Keeley, Bruce A. Rosenblum, and
Mitra Shakeri, and each of them singly, his true and lawful attorney-in-fact and
agent, with full power of substitution or resubstitution, to do any and all acts
and things and to execute any and all instruments, in his name, place and stead,
which said attorney-in-fact and agent may deem necessary or advisable or which
may be required to enable The Topiary Fund for Benefit Plan Investors (BPI) LLC
(the "Fund") to comply with the Securities Act of 1933, as amended (the "1933
Act") and the Investment Company Act of 1940, as amended (the "1940 Act"), and
any rules, regulations or requirements of the Securities and Exchange Commission
in respect thereof, in connection with the Fund's Registration Statement on Form
N-2 pursuant to the 1933 Act and the 1940 Act, together with any and all pre-
and post-effective amendments thereto, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign in the
name and on behalf of the undersigned as the President of the Fund such
Registration Statement and any and all such pre- and post-effective amendments
filed with the Securities and Exchange Commission under the 1933 Act and the
1940 Act, and any other instruments or documents related thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or either of them or their substitute or substitutes, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as of the
date set forth below.
/s/ Natalie Birrell
----------------------------
NATALIE BIRRELL
DATE: July 20, 2004