As filed with the U.S. Securities and Exchange Commission on October 15, 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
| | Pre-effective Amendment No.
|X| Post-effective Amendment No. 1
|X| REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY
ACT OF 1940
|X| Amendment No. 4
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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
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John T. Ferguson, Jr.
Director
DB Absolute Return Strategies
25 DeForest Avenue
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
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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 Per Interest Offering Price Fee(1)
------------------------------------------ --------------------- -------------------- --------------------- --------------------
Limited liability company interests 500,000 $1,000 $500,000,000 $63,304.30
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(1) Registration fee of $63,304.30 paid with the filing of the initial
Registration Statement and Pre-Effective Amendment No. 3 on Form N-2,
transmitted prior to this filing.
This Post-Effective Amendment No. 1 to the Registrant's Registration
Statement on Form N-2 (File No. 333-111561) (the "N-2 Registration Statement")
consists of the following:
1. Facing Sheet of this Registration Statement.
2. Part C of this Registration Statement (including signature page).
Parts A and B of the N-2 Registration Statement are unchanged from
the Prospectus and Statement of Additional Information included in
Pre-Effective Amendment No. 3 to the N-2 Registration Statement filed on
September 14, 2004.
This Post-Effective Amendment No. 1 to the N-2 Registration
Statement is being filed solely to file the Appointment of Agent for Service
of Process (the "Appointment for Service of Process") of The Topiary Offshore
Fund for Benefit Plan Investors (BPI) LDC (the "Offshore Fund"), as Exhibit
2(m) to the N-2 Registration Statement. The Appointment for Service of Process
relates to the Offshore Fund's appointment of PFPC Trust Company as its agent
for service of process.
2
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(1) Financial Statements:
Included in Part B of this Registration Statement.
(2) Exhibits:
(a) (i) Amended Certificate of Formation of Limited
Liability Company.(1)
(ii) Form of Amended and Restated Limited Liability
Company Operating Agreement.(2)
(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.(3)
(ii) Form of Selling Group Agreement.(4)
(i) Not applicable.
(j) Form of Custody Agreement between PFPC Trust
Company and the Registrant.(4)
(k) (i) Form of Administration and Accounting Services
Agreement between PFPC Inc. and the Registrant.(3)
(ii) Form of Services Agreement between Investment
Company Capital Corp. and the Registrant.(4)
(iii) Form of Escrow Agreement between PFPC, Inc. and the
Registrant.(4)
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(1) Previously filed as an Exhibit to the Registrant's Pre-Effective Amendment
No. 2 to the Registration Statement on Form N-2 (Reg. Nos. 333-111561,
811-21480), as filed on July 23, 2004 ("Pre-Effective Amendment No. 2").
(2) Included as Appendix B to the Prospectus, which is Part A of this
Registration Statement.
(3) Previously filed as an Exhibit to the Registrant's Pre-Effective Amendment
No. 3 to the Registration Statement on Form N-2 (Reg. Nos. 333-111561,
811-21480), as filed on September 14, 2004 ("Pre-Effective Amendment No. 3").
(4) Previously filed as an Exhibit to the Registrant's initial Registration
Statement (Reg. Nos. 333-111561, 811-21480), as filed on December 24, 2003
(the "Initial Registration Statement").
(iv) Form of Fee Waiver/Expense Reimbursement
Agreement.(3)
(l) Opinion and Consent of Counsel.(3)
(m) Appointment of Agent for Service of Process.
(n) Opinion and Consent of Tax Counsel.(3)
(o) Consent of Independent Registered Public Accounting Firm.(3)
(p) Not applicable.
(q) Form of Subscription Agent Agreement for Initial Capital.(3)
(r) Not applicable.
(s) (i) Code of Ethics of the Registrant.(4)
(ii) Code of Ethics of the Adviser and Distributor.(4)
(iii) Code of Ethics for Senior Officers of the
Registrant.(4)
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 $63,230
Printing and Engraving Expenses $23,000
Legal fees and expenses $215,000
National Association of Securities Dealers, Inc. Fees $30,000
Accounting Fees and Expenses $7,500
Transfer Agents' Fees $0
Miscellaneous Expenses $0
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Total $338,730
ITEM 27. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
Not applicable.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
As of October 14, 2004, the fund had the following number of
record owners of Units:
Title of Class Number of Record Holders
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Units of Limited Liability Company Interest 3
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
a. DB Investment Managers, Inc. ("DBIM"), a registered investment
adviser, serves as the investment adviser to The Topiary Master Fund
for Benefit Plan Investors (BPI) LLC and other institutional and
privately managed accounts.
b. Business and other connections of the directors and officers
of DBIM are set forth below.
Name and Current Position with DB Investment Business and Other Connections During the
Managers, Inc. Past 2 Fiscal Years
Lance Babbit Portfolio Manager and Hedge Fund Analyst for
Director Multi-Manager Funds, DB Absolute Return
Member of Fund of Funds Investment Committee Strategies
Natalie Birrell Vice President, DB Hedge Strategies Fund LLC; Global
Managing Director and C.O.O. Chief Operating Officer, DB Absolute Return Strategies;
Member of Investment Committee Formerly, Chief Operating Officer, Deutsche Asset
Management
Steven L. Bossi Deputy Head of Multi-Manager Hedge Fund Team, Portfolio
Managing Director Manager and Hedge Fund Analyst for Multi-Manager Funds,
Member of Investment Committee and Fund of Funds DB Absolute Return Strategies; Formerly, President and
Investment Committee Chief Investment Officer of a family office, where he
actively managed hedge funds
Hans DeWitte Global Business Area Controller, DB Absolute Return
Director Strategies; Formerly, Financial Services Senior
Chief Financial Officer Manager, KPMG Consulting Inc.
Robert Dunleavy Head of Middle Office/Operations, DB Absolute Return
Managing Director Strategies
John T. Ferguson, Jr. Vice President, DB Hedge Strategies Fund LLC and Head
Director of Product Development, DB Absolute Return Strategies;
Member of Investment Committee Formerly, Investment Adviser, SEAF (private equity firm)
Tanya E. Ghaleb-Harter Hedge Fund Strategist and Asset Allocation Strategist
Vice President for Multi-Manager Funds, DB Absolute Return Strategies
Member of Fund of Funds Investment Committee
Marielena Glassman Vice President and Assistant Treasurer, DB Hedge
Managing Director Strategies Fund LLC and Global Chief Administrative
Member of Investment Committee Officer, DB Absolute Return Strategies, International
Equities Analyst and Business Manager for Private Bank
Asset Allocation Products, Deutsche Asset Management
Anthony Conte Formerly, Manager for Capital Markets Regulatory
Chief Compliance Officer Advisory Services, PricewaterhouseCoopers LLP
John H. Kim Director, Deutsche Asset Management
Director
Senior Counsel
Dr. Ray M. Lamm, Jr. Employee, Deutsche Bank Trust Company - Americas; Chief
Member of Fund of Funds Investment Committee Investment Strategist, Deutsche Bank Private Banking
Eric Lobben Employee, Deutsche Bank Trust Company - Americas
Managing Director
Member of Investment Committee and Portfolio Manager,
Trader and Risk Manager
Raymond C. Nolte Director, DB Hedge Strategies Fund LLC; Global Head of
Managing Director Multi-Manager Hedge Funds, DB Absolute Return Strategies
Member of Investment Committee and Chairperson of Fund of
Funds Investment Committee
Eric F. S. Pai Global Head of Single-Manager Hedge Funds, DB Absolute
Managing Director Return Strategies
Robert C. Parauda Portfolio Manager and Hedge Fund Analyst for
Vice President Multi-Manager Funds, DB Absolute Return Strategies
Member of Fund of Funds Investment Committee
Craig Russell Global Head of Sales, Marketing and Product
Managing Director Development, DB Absolute Return Strategies
Member of Investment Committee
Joshua A. Weinreich Global Head, DB Absolute Return Strategies
Managing Director and C.E.O.
Chairperson of Investment Committee
David Zobel Employee of Deutsche Asset Management
Managing Director Australia Limited; Asia Pacific Regional Head, DB
Member of Fund of Funds Investment Committee Absolute Return Strategies
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, transfer agent, and dividend disbursing agent of the Fund.
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 15th of October, 2004.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS
(BPI) LLC
By: *
----------------------------------------
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
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/s/ * Chief Executive Officer October 15, 2004
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Julian Sluyters
/s/ * Treasurer, Principal Financial October 15, 2004
------------------------------------------- Officer and Accounting Officer
Alexandra Toohey
/s/ * Director October 15, 2004
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Raymond C. Nolte
/s/ * Director October 15, 2004
-------------------------------------------
Edward T. Tokar
/s/ * Director October 15, 2004
-------------------------------------------
Louis C. Citron
/s/ * Director October 15, 2004
-------------------------------------------
Nolan T. Altman
* By: /s/ Elizabeth Keeley
-----------------------------------
Elizabeth Keeley,
as attorney-in-fact
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* Pursuant to power of attorney filed with the Securities and Exchange
Commission (the "SEC") as part of Pre-Effective Amendment No.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
15th of October, 2004.
THE TOPIARY MASTER FUND FOR BENEFIT PLAN
INVESTORS (BPI) LLC
By: *
--------------------------------
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 October 15, 2004
-------------------------------------------
Julian Sluyters
/s/ * Treasurer, Principal Financial October 15, 2004
------------------------------------------- Officer and Accounting Officer
Alexandra Toohey
/s/ * Director October 15, 2004
-------------------------------------------
Raymond C. Nolte
/s/ * Director October 15, 2004
-------------------------------------------
Edward T. Tokar
/s/ * Director October 15, 2004
-------------------------------------------
Louis C. Citron
/s/ * Director October 15, 2004
-------------------------------------------
Nolan T. Altman
* By: /s/ Elizabeth Keeley
-----------------------------------
Elizabeth Keeley,
as attorney-in-fact
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* Pursuant to power of attorney filed with the Securities and Exchange
Commission (the "SEC") as part of Pre-Effective Amendment No.2, as filed on
July 23, 2004.
INDEX TO EXHIBITS
Exhibit
Number Description
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2(m) Appointment of Agent for Service of Process