Exhibit 4.1
THE UNITS HAVE BEEN PRIVATELY OFFERED AND CANNOT BE TRANSFERRED WITHOUT THE
CONSENT OF THE MANAGER AND COMPLIANCE WITH APPLICABLE SECURITIES LAW
EXEMPTIONS.
UBS MANAGED FUTURES LLC
LIMITED LIABILITY COMPANY AGREEMENT
(Providing for Individual Series of Units of Limited Liability Company Interest)
Dated as of October 26, 2006
-----------------------
THESE ARE SPECULATIVE SECURITIES.
-----------------------
UBS MANAGED FUND SERVICES INC.
Sponsor
UBS MANAGED FUTURES LLC (THE "PLATFORM") WILL ISSUE SEPARATE AND DISTINCT
SERIES ("SERIES") OF UNITS OF LIMITED LIABILITY COMPANY INTEREST ("UNITS").
PURSUANT TO SECTION 18-215 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT (THE
"ACT"), THE DEBTS, LIABILITIES, OBLIGATIONS AND EXPENSES INCURRED, CONTRACTED
FOR OR OTHERWISE EXISTING WITH RESPECT TO A PARTICULAR SERIES OF UNITS SHALL
BE ENFORCEABLE AGAINST THE ASSETS OF SUCH SERIES ONLY, AND NOT AGAINST THE
ASSETS OF THE PLATFORM GENERALLY OR OF ANY OTHER SERIES, AND NONE OF THE
DEBTS, LIABILITIES, OBLIGATIONS OR EXPENSES INCURRED, CONTRACTED FOR OR
OTHERWISE EXISTING WITH RESPECT TO THE PLATFORM GENERALLY SHALL BE ENFORCEABLE
AGAINST THE ASSETS OF ANY SERIES, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
HEREIN.
ONLY U.S. INVESTORS WHICH ARE "ACCREDITED INVESTORS" WITH A NET WORTH OF
$1,000,000 (IF AN INDIVIDUAL) OR $5,000,000 (IF AN ENTITY) ARE ELIGIBLE TO
INVEST IN THE PLATFORM.
UBS MANAGED FUTURES LLC
LIMITED LIABILITY COMPANY AGREEMENT
(Providing for Individual Series of Units of Limited Liability Company Interest)
TABLE OF CONTENTS
Section Page
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ARTICLE I
ORGANIZATION
Section 1.1 Defined Terms; Name; Manager......................................................................1
Section 1.2 Series of Units...................................................................................1
Section 1.3 Purposes..........................................................................................2
Section 1.4 Principal Office; Registered Office; Registered Agent.............................................3
Section 1.5 Term..............................................................................................3
Section 1.6 Members...........................................................................................3
Section 1.7 Definitions.......................................................................................4
Section 1.8 Rules of Interpretation...........................................................................9
ARTICLE II
MANAGEMENT
Section 2.1 Authority of the Sponsor.........................................................................10
Section 2.2 Sponsor's Determinations.........................................................................10
Section 2.3 Brokerage and Interest Income Arrangements.......................................................11
Section 2.4 Other Activities.................................................................................12
Section 2.5 Permitted Transactions...........................................................................12
Section 2.6 Sponsor Parties' Standard of Liability and Indemnity.............................................12
Section 2.7 Trading Advisors' Standard of Liability and Indemnification......................................14
Section 2.8 Capital Contributions and Redemptions by the Sponsor; Withdrawal and Substitution of the
Sponsor; Mergers or Acquisitions.................................................................14
Section 2.9 Sponsor's Fees...................................................................................14
ARTICLE III
CAPITAL ACCOUNTS; UNITS; FINANCIAL AND TAX ALLOCATIONS
Section 3.1 Admission of Additional Members; Capital Contributions...........................................15
Section 3.2 Limited Liability of Members.....................................................................16
Section 3.3 Capital Accounts and General Financial Allocations...............................................17
Section 3.4 Allocation Principles Regarding the Series.......................................................17
Section 3.5 Tax Allocations..................................................................................18
Section 3.6 Consistent Tax Reporting.........................................................................19
Section 3.7 "Tax Matters Partner."...........................................................................19
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TABLE OF CONTENTS
(cont.)
Section Page
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Section 3.8 Determination of Net Asset Value.................................................................20
Section 3.9 Use of Estimates and Trading Advisor Estimates...................................................21
Section 3.10 Prior Period Adjustments.........................................................................21
Section 3.11 Reserves.........................................................................................22
Section 3.12 Manner of Effecting Non-Pro Rata Allocations.....................................................23
ARTICLE IV
REDEMPTIONS AND EXCHANGES
Section 4.1 Redemptions......................................................................................23
Section 4.2 Distributions....................................................................................24
Section 4.3 Transfers........................................................................................24
Section 4.4 Effective Date of Redemptions and Distributions..................................................24
Section 4.5 Payment of Redemption and Distribution Proceeds..................................................24
Section 4.6 Exchanges........................................................................................25
ARTICLE V
DISSOLUTION; REMOVAL OF SPONSOR
Section 5.1 Dissolution......................................................................................26
Section 5.2 Payment of Dissolution Proceeds..................................................................28
Section 5.3 Removal of the Sponsor...........................................................................28
ARTICLE VI
PLATFORM EXPENSES
Section 6.1 Platform Expenses................................................................................28
ARTICLE VII
BOOKS OF ACCOUNT; REPORTS
Section 7.1 Books of Account.................................................................................29
Section 7.2 Reports..........................................................................................29
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Binding Effect; Creditors........................................................................30
Section 8.2 Notices; Consents................................................................................30
Section 8.3 Counterparts; Facsimiles; Power of Attorney......................................................31
Section 8.4 Entire Agreement.................................................................................31
Section 8.5 Amendment........................................................................................32
Section 8.6 Consent of the Members...........................................................................32
Section 8.7 Waivers..........................................................................................33
Section 8.8 No Partition.....................................................................................33
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TABLE OF CONTENTS
(cont.)
Section Page
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Section 8.9 Meetings.........................................................................................33
Section 8.10 Power of Attorney................................................................................34
Section 8.11 Voluntary Limitation on a Member's Series Voting Rights..........................................34
Section 8.12 Voluntary Limitation on a Member's Series Percentage.............................................35
Section 8.13 Further Information and Documents................................................................35
Section 8.14 GOVERNING LAW; DISPUTE RESOLUTION................................................................35
Section 8.15 Matters Not Provided For; Compliance with Law....................................................37
Section 8.16 Severability.....................................................................................37
Section 8.17 Indirect Action..................................................................................37
Section 8.18 Survival.........................................................................................38
Section 8.19 Confidentiality; Tax Confidentiality.............................................................38
Section 8.20 No Waiver of Federal or State Securities Law Claims..............................................39
Section 8.21 Investment in Accordance with Law................................................................39
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LIMITED LIABILITY COMPANY AGREEMENT
OF
UBS MANAGED FUTURES LLC
Limited Liability Company Agreement ("Agreement") dated as of October
26, 2006, of UBS Managed Futures LLC (the "Platform"):
ARTICLE I
ORGANIZATION
Section 1.1 Defined Terms; Name; Manager.
(a) Defined terms are used with the meanings set forth in Section 1.7.
(b) The Platform shall do business under the name of "UBS Managed
Futures LLC."
(c) UBS Managed Fund Services Inc. (the "Sponsor") shall act as the
manager of the Platform within the meaning of Section 18-401 of the Act.
(d) The Sponsor may change the name of the Platform from time to time,
promptly notifying the Members of any such change.
Section 1.2 Series of Units.
(a) (i) As contemplated by Section 18-215(b) of the Act, the Platform
shall establish separate Series, each of which shall invest substantially all
of its capital in a Trading Fund formed as a limited liability company under
the Act and of which such Series is the only Member or in a Trading Fund that
is an already existing fund.
(ii) Each Trading Fund shall be a separate legal entity,
wholly-owned by a different Series (unless an already existing fund),
managed by a Trading Advisor and trading through its individual trading
accounts.
(iii) In addition to the fact that each Trading Fund will be a
separate legal entity, not liable for the obligations of any other
Trading Fund, no Series shall be liable for the debts or obligations of
any other Series or for the debts or obligations of the Platform as a
whole (except as provided herein).
(iv) Each Series shall trade exclusively through its Trading Fund,
and the capital of the Trading Funds will in no event be commingled.
(v) Each Series shall produce a separate Schedule K-1 (or other
relevant tax schedule) for the Members participating in such Series with
respect to each Fiscal Year. For federal income tax purposes, each
Series shall be treated as a separate business entity and shall be
accounted for as if it were a separate partnership.
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(b) (i) The terms of each Series shall be as set forth in this
Agreement, and the distinguishing terms of each Series shall be as set
forth in the Separate Series Agreement, substantially in the form of
Exhibit A attached hereto (with such changes therein as the Sponsor may
determine). A different Series shall be established for each Trading
Fund in which Members can invest through the Platform.
(ii) For all purposes of the Act, this Agreement, together with
each Separate Series Agreement, constitutes the "limited liability
company agreement" of the Platform within the meaning of the Act.
(iii) A Separate Series Agreement or counterpart signature page
thereto shall be executed by or on behalf of the Platform by the Sponsor
at the time that each Series is issued. The terms and provisions of a
Separate Series Agreement may have the effect of altering, supplementing
or amending the terms and provisions hereof with respect to the Series
created thereby, without compliance with the amendment provisions of
Section 8.5 or the consent requirements of Section 8.6, provided that no
such Separate Series Agreement may materially adversely affect any
outstanding Series.
(c) Each of the Series shall operate to the extent practicable, as if it
were a separate limited liability company. Accordingly, references to the
Platform herein shall, unless and only to the extent the context otherwise
requires, be interpreted to refer to each individual Series severally.
(d) Each Series shall bear all expenses of its operations. Any operating
expenses that the Sponsor determines to be attributable to the Platform as a
whole shall be allocated among the different Series pro rata in accordance
with the Net Asset Value of each Series at the time such expenses are accrued
or paid. The organizational costs of the Platform shall be advanced by the
Sponsor and billed to the Platform and allocated among the Series when and as
the Sponsor may determine.
(e) No Member shall be personally liable for the debts of any Series
beyond the amount contributed by such Member to the capital of such Series.
Furthermore, under the Act, no Member of the Platform shall be obligated
personally for any debt, obligation or liability of the Platform solely by
reason of being a Member; provided however, that a Member will be liable for
acts or events not engaged in solely by reason of being or acting as a Member.
Section 1.3 Purposes.
(a) The Platform shall permit the several Members to select the Series
or combinations of Series in which to invest and to Exchange Units of the
different Series.
(b) (i) The Sponsor shall have no investment discretion over any capital
invested in the Platform or, through the Platform, in the Trading Fund.
However, each Member will have sole discretion, subject to the
restrictions set forth herein, over the Series (and Trading Funds) in
which such Member invests.
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(ii) The Sponsor shall select the Series (and Trading Funds) to be
made available through the Platform, and will monitor such Series (and
Trading Funds), as described in the Memorandum. In selecting Trading
Advisors to manage the Trading Funds, the Sponsor intends to work
closely with UBS FS, although it may do so with other of its Affiliates
or third parties in its sole discretion. UBS FS may, but is not
obligated to, conduct due diligence regarding potential Trading
Advisors, make Trading Advisor recommendations to the Sponsor and help
the Sponsor negotiate the terms of any selected Trading Advisor's
engagement. Although the ultimate decision as to which Trading Advisors
are selected for the Platform will be made by the Sponsor, the Sponsor
may rely on the information provided to it by UBS FS and is not
obligated to independently verify such information. UBS FS also may act
as selling agent of the Units and as such may share in the fees charged
by the various Trading Advisors. As a result, UBS FS may have an
incentive to recommend Trading Advisors to the Sponsor that are willing
to participate in such fee sharing. Should UBS FS discontinue working
with the Sponsor in the selection of the Trading Advisors, the Platform
would be materially and adversely impacted. Each Member explicitly
approves of the involvement of UBS FS in the selection of the Trading
Advisors and consents to all conflicts of interests and risks associated
with such involvement.
(iii) The interest income earned on the capital of each Trading
Fund will be paid by the Clearing Broker to the Trading Fund's commodity
brokerage account. Any Reserve Assets held by a Series will be invested
by the Sponsor in bank accounts or short-term U.S. government
securities.
(iv) For the avoidance of doubt, the Sponsor is currently not
registered as an "investment adviser" under the Advisers Act, but may
become registered in such capacity in its sole discretion, although it
is under no obligation to do so.
Section 1.4 Principal Office; Registered Office; Registered Agent.
The principal office of the Platform shall be at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at any other location as the Sponsor
may designate. The registered office of the Platform shall be at such
location, and its registered agent for service of process shall be such
entity, as is set forth in the Certificate of Formation. The Sponsor may
change the principal office, the registered office and/or the registered agent
of the Platform from time to time, promptly notifying the Members of any such
change.
Section 1.5 Term.
The term of the Platform shall continue until the Platform is dissolved
and wound up as provided in Section 5.1.
Section 1.6 Members.
The Members (other than the Sponsor, as applicable), in their capacity
as such, shall have only the powers specifically enumerated in this Agreement
-- which, for the avoidance of doubt, shall include each Member selecting the
Series or combination of Series in which such Member
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shall invest from time to time -- and shall have no control over the business
or operations of the Platform, and no power to bind the Platform.
Section 1.7 Definitions.
For the purposes of this Agreement, the following terms -- and, as
appropriate, derivatives of such terms -- shall have the meanings set forth
below, unless and only to the extent that the context otherwise requires:
"Accounting Date" shall mean: (a) the last day of a calendar month; (b)
an Effective Date; (c) the day on which a Series dissolves pursuant to Article
V; (d) the day as of which a Series' final liquidating Distribution is made
following such Series' dissolution; and (e) any other day which the Sponsor
may designate; provided, that in the case of each Series, the Accounting Dates
for such Series shall correspond to the Accounting Dates of the Trading Fund
in which such Series invests substantially all of its capital.
"Accounting Period" shall mean the period beginning immediately after an
Accounting Date and ending as of the next Accounting Date.
"Act" shall mean the Delaware Limited Liability Company Act.
"Administrator" shall mean, initially, DPM Mellon, LLC. The Sponsor
reserves the right to change the Administrator at any time to any other
entity, including to Affiliates of the Sponsor, and the Administrator itself
may merge with or acquire other administrative services businesses while
continuing to act in such capacity for the Platform.
"Administrative Fee" shall mean the fees payable to the Administrator
from each Series pursuant to an administrative services contract, as
negotiated by the Sponsor from time to time.
"Advisers Act" shall mean the Investment Advisers Act of 1940.
"Affiliate" of a Person shall mean a Person controlling, controlled by
or under common control with, that Person, either directly or indirectly
through one or more intermediaries; provided, that Sponsor clients shall not
be deemed to constitute Affiliates of the Sponsor or any Sponsor Party solely
by virtue of the fact that they are Sponsor clients.
"Agreement" shall mean this Limited Liability Company Agreement.
"Bankruptcy" shall mean, with respect to any Person, an adjudication
that such Person is bankrupt or insolvent, such Person's admission of its
inability to pay its debts as they mature, such Person's making a general
assignment for the benefit of creditors, such Person's filing a petition in
bankruptcy or a petition for relief under any section of the United States
Bankruptcy Code or any other bankruptcy or insolvency statute, or the filing
against such Person of any such petition which is not discharged within 60
days thereafter.
"Capital Account" shall mean the capital account established for each
Unit maintained on the books of the Platform in accordance with this
Agreement.
-4-
"Capital Contribution" shall mean the amount contributed to the Platform
and a given Series, net of any costs or charges imposed on such Capital
Contribution, as set forth in the books and records of the Platform.
"Certificate of Formation" shall mean the Certificate of Formation of
the Platform or of any Trading Fund, as the case may be, as filed with the
Secretary of State of the State of Delaware and as amended from time to time.
"Clearing Broker" shall mean UBS Securities LLC, an affiliate of the
Sponsor and the sole clearing broker for each of the Trading Funds, or any
other Person as may be selected by the Sponsor to act as the clearing broker
for any of the Trading Funds.
"Code" shall mean the Internal Revenue Code of 1986.
"Distribution" shall mean cash and/or Futures Interests distributed to
one or more Members from the separate Series by the Sponsor without such
Member(s)' request.
"Effective Date" shall mean the date that a Capital Contribution, a
Redemption or a Distribution, as the case may be, is effective with respect to
a Series. In general, the Capital Account(s) of the Units held by the
respective Members, and number of Units held, in such Series will be adjusted
as of each Effective Date, irrespective of when the proceeds of such Capital
Contribution, Redemption or Distribution are contributed by the Member or paid
out by a Series, as applicable.
"Exchange" shall mean the ability of the Members to exchange Units of
one Series for Units of another Series, if available, generally as of the end
of each calendar month. All references in this Agreement to "Redemption" shall
include an Exchange from the Series from which Units are Exchanged, and all
references in this Agreement to "Capital Contribution" shall include an
Exchange into the Series into which Units are Exchanged, unless the context
requires otherwise.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974.
"Facsimile." See Section 8.2.
"Finally Determined" shall mean found by a court or arbitral tribunal of
competent jurisdiction upon entry of a final, non-appealable judgment.
"Financial Advisor." See Section 8.21.
"Fiscal Year" shall mean the calendar year, unless the Sponsor elects a
different fiscal year.
"Futures Interests" shall mean forward contracts (including, for the
avoidance of doubt, London Metal Exchange and foreign exchange forwards),
futures contracts for commodities, financial instruments and currencies,
rights pertaining thereto and options or other derivatives thereon or on
physical commodities.
-5-
"Impermissible Event" shall mean an event that would cause the Platform
or any Series: (i) to be treated as an association taxable as a corporation
for income tax purposes; (ii) to be considered to hold "plan assets" within
the meaning of ERISA; (iii) to engage in a "prohibited transaction" as defined
in Section 406 of ERISA or Section 4975 of the Code; or (iv) to violate any
Law or contractual provision.
"Indemnified Party." See Section 2.6(a).
"Law" shall mean any law, regulation (proposed, temporary or final),
administrative rule or procedure, self-regulatory organization rule or
interpretation, or exchange rule or procedure binding upon, or which the
Sponsor reasonably determines may be binding upon (in each case, as applicable
in light of the context), any Member, any Sponsor Party, any Series, any
Trading Fund, the Platform as a whole or any Affiliate of any of the foregoing
or to which any of their property is subject.
"Management Fee" shall mean the advisory compensation paid by a Trading
Fund to the Trading Advisor of such Trading Fund, which is expected to equal a
percentage of such Trading Fund's assets.
"Member" shall mean a member of the Platform, including the Sponsor if
the Sponsor so determines.
"Memorandum" shall mean the Confidential Disclosure Document of the
Platform, as may be amended or supplemented from time to time.
"Net Asset Value" of each Capital Account as of any date shall mean the
value of such Capital Account, less (a) all liabilities, costs and expenses
accrued or payable of every kind and nature including accrued Sponsor's Fees
and Administrative Fees and (b) all Reserves. Each Member acknowledges and
agrees that the Sponsor or its appointee may rely on the Trading Advisors'
estimates of the Net Asset Values of the Series' respective investments in the
respective Trading Funds in determining the Sponsor's Fees and Administrative
Fee.
"Net Income" shall mean, with respect to any given Accounting Period,
the increase in the Net Asset Value of each Series from the beginning to the
end of such Accounting Period (for the avoidance of doubt, after reflecting
all fees accrued and paid by the applicable Trading Fund).
"Net Loss" shall mean, with respect to any given Accounting Period, the
decrease in the Net Asset Value of each Series from the beginning to the end
of such Accounting Period (for the avoidance of doubt, after reflecting all
fees accrued and paid by the applicable Trading Fund).
"Parties." See Section 8.14(b).
"Permitted Confidants." See Section 8.19(b).
"Person" shall mean any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (or any agency or political subdivision thereof) or other entity,
whether or not having legal personality.
-6-
"Plan." See Section 8.21.
"Plan Fiduciary." See Section 8.21.
"Platform" shall mean UBS Managed Futures LLC, the Delaware limited
liability company the governance of which is provided for by this Agreement.
References to the Platform herein shall, unless and only to the extent the
context otherwise requires, be interpreted to refer to each individual Series
severally.
"Prior Period Adjustment" shall mean any item or items of expense, loss,
tax, income or gain incurred or accrued during one Accounting Period which
arises from claims, events or transactions relating to a prior Accounting
Period, including all costs of prosecuting, defending, investigating, settling
or otherwise dealing with any of the foregoing, such item or items to be
accounted for pursuant to Section 3.10.
"Prior Period Member." See Section 3.10(a).
"Qualified Income Offset." See Section 3.5(a)(iii).
"Redeem" shall mean effecting a Redemption.
"Redemption" shall mean the repurchase by a Series, at the request of a
Member, of one or more of such Member's Units net of any costs or charges
imposed. "Redemption," when used as an adjective, means attributable to or
pertaining to a Redemption.
"Reserve Assets" shall mean the assets of each Series not invested in a
Trading Fund. The Sponsor shall deposit Reserve Assets in bank accounts and/or
invest Reserve Assets in short-term U.S. government securities.
"Reserves" shall mean reserves (funded or unfunded) established by the
Sponsor pursuant to Section 3.11. Different Reserves may be established for
different Series. For the avoidance of doubt, any amounts paid out to a Member
shall in all cases be reduced by any Reserves allocable to the Capital
Account(s) of the Units held by such Members.
"SEC" shall mean the Securities and Exchange Commission.
"Selling Agent" shall mean UBS FS, UBS International Inc. or such other
selling agents as shall be duly appointed by the Sponsor from time to time to
market and sell the Units.
"Separate Series Agreement" shall mean the separate agreement
establishing the distinguishing terms of each Series substantially in the form
of Exhibit A attached hereto.
"Series" shall mean a designated series of Units of limited liability
company interest in the Platform established in accordance with this Agreement
and pursuant to Section 18-215 of the Act, having separate rights, powers
and/or duties with respect to specified property or obligations (including
such Series' investment in its underlying Trading Fund). The Platform will
issue separate and distinct Series. Pursuant to Section 18-215 of the Act, the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to
-7-
a particular Series shall be enforceable against the assets of such Series
only, and not against the assets of the Platform generally or of any other
Series, and none of the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to the Platform generally
shall be enforceable against the assets of any Series, except to the extent
expressly provided herein.
"Series Percentage" shall mean, with respect to each Member for each
Accounting Period, in the case of each Series a percentage equal to the
fraction the numerator of which is the aggregate balance in the Capital
Account(s) of the Units in such Series held by such Member and the denominator
of which is the aggregate balance of all Capital Accounts attributable to such
Series, in each case as of the first day of such Accounting Period. The
aggregate of all Members' Series Percentages in each Series shall at all times
equal 100%.
"Sponsor" shall mean UBS Managed Fund Services Inc., a Delaware
corporation and an Affiliate of the Clearing Broker, and/or any other Person
that is admitted as a manager of the Platform after the date hereof.
"Sponsor Party" shall mean (a) the Sponsor, (b) any Affiliate of the
Sponsor and (c) any owner, principal, director, officer or employee of any of
the foregoing.
"Sponsor's Fees" shall mean the percentage of assets fees payable to the
Sponsor from each Series as provided in Section 2.9.
"Subscription Agreement" shall mean a written agreement or instrument in
form and substance acceptable to the Sponsor whereby each Member (other than
the Sponsor), subscribes for or otherwise acquires a Unit or Units. All
Subscription Agreements once submitted are irrevocable but are subject to
acceptance by the Sponsor.
"Tax Items" shall mean items of income, gain, loss, expense, deduction
and credit determined for income tax reporting purposes.
"Tax Matters Partner." See Section 3.2(a).
"Trading Advisors" shall mean the respective managed futures advisors of
the respective Trading Funds.
"Trading Advisory Agreements" shall mean the respective advisory
agreements between, inter alia, a Trading Fund and the corresponding Trading
Advisors.
"Trading Fund" shall mean the wholly-owned subsidiary of each Series or
an existing fund through which such Series engages in Futures Interest
trading.
"Trading Fund Agreements" shall mean the operative documents of each
Trading Fund.
"Transfer." See Section 4.3(a).
"Transferee," "Transferor" shall mean the Person making or receiving, as
the case may be, a Transfer of Units.
-8-
"Treasury Regulations" shall mean the regulations (final, proposed
and/or temporary) of the Department of the Treasury and/or Internal Revenue
Service promulgated under or in respect of the Code.
"UBS FS" shall mean UBS Financial Services Inc., an Affiliate of the
Sponsor.
"Units" shall mean the units of limited liability company interest in
the Platform, including fractional units, which the Sponsor may issue in its
sole discretion. The Units issued by each Series shall be separate and
distinct.
"Voting Rights." See Section 8.11.
Section 1.8 Rules of Interpretation.
(a) References to articles and sections shall be to sections of this
Agreement unless otherwise specified.
(b) "May" shall be construed as permissive.
(c) A "month" or a "quarter" means a calendar month or quarter (as the
case may be).
(d) A "notice" means written notice unless otherwise stated.
(e) "Shall" shall be construed as imperative.
(f) Writing includes typewriting, printing, lithography, photography and
other modes of representing or reproducing words in a legible and
non-transitory form.
(g) The term "and/or" is used herein to mean both "and" as well as "or."
The use of "and/or" in certain contexts in no respects qualifies or modifies
the use of the terms "and" or "or" in others. "Or" shall not be interpreted to
be exclusive, and "and" shall not be interpreted to require the conjunctive --
in each case, unless the context otherwise requires.
(h) Article and section headings herein have been inserted for
convenience of reference only, are not a part of this Agreement and shall not
be used in construing this Agreement.
(i) The terms "include" and "including" and words of similar import are
to be construed as non-exclusive (so that, by way of example and for the
avoidance of doubt, "including" shall mean "including without limitation").
(j) Unless the context of this Agreement otherwise requires (i) words
using a singular or plural number also include the plural or singular number,
respectively, (ii) the terms "hereof," "herein," "hereby" and any derivative
thereof or similar words refer to this entire Agreement, (iii) the masculine
gender shall include the feminine and neuter genders, (iv) any reference to a
Law, agreement or a document shall be deemed to also refer to any amendment,
supplement or replacement thereof, and (v) whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless such reference
specifies business days.
-9-
(k) Terms defined in this Agreement by reference to any other agreement,
document or instrument shall have the meanings assigned to them in such
agreement, document or instrument whether or not such agreement, document or
instrument is then in effect.
(l) References to statutes, regulations and/or rules refer to the
foregoing as amended or supplemented to date.
(m) No provision of this Agreement shall be construed in favor of or
against any Person by reason of the extent to which any such Person, its
Affiliates or their respective employees or counsel participated in the
drafting thereof.
ARTICLE II
MANAGEMENT
Section 2.1 Authority of the Sponsor.
(a) (i) The Sponsor shall have full and complete charge of all affairs
of the Platform. The management and control of the Platform's business
and its assets shall rest exclusively with the Sponsor. The Sponsor
shall have all of the rights and powers that can be granted to the
Sponsor under the Act and as otherwise provided by Law, and any action
taken on behalf of the Platform by the Sponsor shall constitute the act
of and bind the Platform.
(ii) Notwithstanding Section 2.1(a)(i), each Member individually
and not the Sponsor shall have sole discretion of the Series or
combination of Series in which such Member invests, subject to
restrictions imposed on effecting subscriptions, Redemptions and
Exchanges imposed by the Platform, as set forth herein.
(b) The Sponsor shall be required to devote only such business time and
attention to the conduct of the business and affairs of the Platform as the
Sponsor may deem necessary or advisable. For the avoidance of doubt, the
Sponsor Parties shall be free to devote such time and attention as they may
determine to other Sponsor clients, as well as to other activities.
Section 2.2 Sponsor's Determinations.
(a) Whenever any Sponsor Party is to determine or decide any matter
relating to this Agreement or the Platform (for the avoidance of doubt, not
including the determination of into which Series a Member shall invest, such
determination to be in the sole and absolute discretion of each Member, to the
extent that it is practicable to effect the investment so determined) such
determination shall be made in the sole discretion of such Sponsor Party. All
determinations or decisions made by the Sponsor pursuant to or in connection
with this Agreement shall be conclusive and binding on all Members if made in
a manner consistent with the standard set forth in Section 2.6.
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(b) Whenever this Agreement provides that the Sponsor may take or not
take any action, or make any determination, in a particular manner, unless the
Sponsor otherwise determines, the Sponsor shall be absolutely protected in
acting in such manner, provided that the Sponsor acts in a manner consistent
with the standard set forth in Section 2.6.
(c) (i) Without limiting the generality of Sections 2.2(a) and (b), all
matters concerning the valuation of Futures Interests and other assets
and liabilities of each Series, the allocation of Net Income, Net Loss,
profits, deductions, gains and losses among the Members, and/or
accounting procedures (including the accounting procedures regarding the
treatment of the several Series and the Units issued by each) not
expressly provided for by the terms of this Agreement shall be
determined by the Sponsor (such determination being made in pertinent
part based on information provided the Sponsor by the Trading Advisors,
on which the Sponsor is conclusively authorized to rely), whose
determination shall be final and conclusive as to all of the Members, or
such party as may be duly appointed by the Sponsor, such party's
determination being subject to the approval of the Sponsor and being
final and conclusive as to all of the Members.
(ii) The Sponsor shall have authority to determine the manner of
applying any such provisions of this Agreement that the Sponsor
determines to be unclear or not equitable, and the Sponsor shall also
have authority to determine the manner of applying any such provisions
in circumstances in which more than one method of application would be
more consistent with Law or equitable principles.
Section 2.3 Brokerage and Interest Income Arrangements.
(a) All Trading Funds shall use the Clearing Broker, an Affiliate of the
Sponsor, as their exclusive clearing broker, unless the Sponsor otherwise
determines.
(b) All Members, as a condition of being accepted in such capacity,
agree to the Trading Funds' using the Clearing Broker as their sole clearing
broker even if using another clearing broker might be less expensive or
otherwise in the best interests of the Trading Fund.
(c) Trading Advisors may use executing brokers which are not Affiliates
of the Sponsor. The Sponsor shall have no liability for the conduct of such
executing brokers.
(d) Each Trading Fund will be subject to the brokerage commissions and
interest income arrangements (including the borrowing of foreign currencies in
accordance with the Clearing Broker's "single currency margining" procedures),
as described in the Memorandum.
(e) Each Member, as a condition of being accepted as such, acknowledges
and agrees that the principles of "best price and execution" do not apply to
Futures Interests, as opposed to securities brokerage. Each Member further
consents to each Trading Fund paying the brokerage commissions set forth in
the Memorandum and to the Clearing Broker and its Affiliates retaining
substantial economic benefit from the possession of the Trading Fund's assets
in addition to the interest income paid to the Trading Fund (and the interest
charged to the Trading Fund on foreign currencies loaned to it), as described
in the Memorandum.
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(f) The Sponsor shall be permitted to allow the Trading Advisors to
aggregate orders for their respective Trading Funds with the orders for their
other clients, notwithstanding that the effect of such aggregation may operate
to the disadvantage of the Trading Fund in question.
Section 2.4 Other Activities.
Except to the extent contemplated by Section 2.1(b), nothing herein
shall be deemed to limit or restrict the right of any Sponsor Party to engage
in, or to devote time and attention to the management of any other business,
whether of a similar or dissimilar nature, or to render services of any kind
to any other Person.
Section 2.5 Permitted Transactions.
(a) Any Sponsor Party, Member and any of their respective Affiliates may
trade Futures Interests for their personal accounts.
(b) Any Sponsor Party may trade Futures Interests for other client
accounts.
(c) Any Sponsor Party may provide managed futures platform,
administrative and due diligence services comparable to the services that the
Sponsor provides to the Platform to third parties.
(d) Any Sponsor Party may act as a service provider to the Platform and
receive compensation for doing so.
(e) Any Sponsor Party (i) may engage in or possess an interest, direct
or indirect, in any business venture of any nature or description (including
other managed futures funds or platforms) for their respective accounts,
independently or with others, and (ii) may do so without any obligation to
report the same to the Platform or to afford the Platform, any Series or any
Member any opportunity to participate therein. None of the Platform, any
Series or any Member shall have any rights in or to any such independent
venture or investment or the revenues or profits derived therefrom.
(f) The principles of the doctrine of "corporate opportunity," any
analogous doctrine under applicable Law or other similar rights or claims
shall not apply to any Sponsor Party's dealings with the Platform, any Series,
any Member (in such Member's capacity as such) or any third parties.
Section 2.6 Sponsor Parties' Standard of Liability and Indemnity.
(a) Each Sponsor Party and their respective officers, directors,
controlling persons within the meaning of Section 15 of Securities Act of
1933, employees, partners and shareholders (each an "Indemnified Party") shall
have no liability to the Platform or to any Member, and shall be indemnified
by the Platform against, any loss, liability, claim, damage or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damage or expense and reasonable counsel fees incurred in
connection therewith), as incurred, arising in connection with any action or
inaction of an Indemnified Party; provided, however, that in no case is the
foregoing exculpation and indemnity to be deemed to protect an
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Indemnified Party against any liability to the Platform or any Member to which
an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of their duties
or by reason of the reckless disregard of their obligations and duties under
this Agreement.
(b) The Platform shall not bear the cost of that portion of any
insurance which insures any party against any liability the indemnification of
which is herein prohibited. The Platform may, but is not obligated to, advance
to an Indemnified Party sums necessary to pay legal expenses and other costs
incurred as a result of any legal action initiated against such Indemnified
Party.
(c) In the event the Platform is made a party to any claim, dispute or
litigation or otherwise incurs any loss or expense as a result of or in
connection with any Member's activities, obligations or liabilities unrelated
to the Platform's business, such Member shall indemnify and reimburse the
Platform for all loss and expense incurred, including reasonable attorneys'
fees.
(d) The indemnification provisions of Section 2.6(a) shall be applied on
a Series-by-Series basis, with a particular Series being responsible for
indemnification only with respect to a loss or claim related to that Series,
unless such loss or claim relates to the overall operation of the Platform,
not to any particular Series, in which case the indemnification obligation of
Section 2.6(a) shall be allocated among all Series pro rata in accordance with
the Net Asset Value (or average Net Asset Value) of each Series at the time
(or during the period) when the event giving rise to such loss or claim
occurred or in such other manner as the Sponsor may determine.
(e) The rights of an Indemnified Party to indemnification shall survive
the dissolution of the applicable Series (if the indemnification obligations
relate to the overall operations of the Platform) and the death, withdrawal,
declaration of legal incapacity, dissolution, winding-up or Bankruptcy of such
Indemnified Party.
(f) No Indemnified Party other than the Sponsor may assert any claim for
indemnification hereunder without the prior written consent of the Sponsor,
which the Sponsor shall have no obligation whatsoever to give.
(g) In no event shall any indemnification obligations of the Platform
subject a Member to any liability in excess of that contemplated by this
Agreement.
(h) The Members, in recognition of the fact that the Members themselves
will select their own combinations of Series, waive all fiduciary duties on
behalf of the Sponsor except the implied duty of good faith and fair dealing
(and solely to the extent that such duty cannot be waived under the Act).
(i) The Sponsor, or such party as may be duly appointed by the Sponsor
to calculate the Series' Net Asset Values, shall be absolutely protected in
relying on the valuations of Trading Funds furnished to the Sponsor by Trading
Advisors.
(j) The Sponsor Parties shall have no responsibility whatsoever for any
actions taken or omitted by the Trading Advisors and Trading Funds.
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Section 2.7 Trading Advisors' Standard of Liability and Indemnification.
Each Series and/or Trading Fund may be required to agree to exculpate
and/or indemnify Trading Advisors and associated Persons pursuant to the terms
of the applicable Trading Advisory Agreements, and the Sponsor is authorized
to cause each Series and/or Trading Fund, respectively, to enter into such
arrangements, even if such Trading Advisory Agreements provide greater
liability protection (exculpation) and/or more comprehensive indemnification
than that set forth in Sections 2.6.
Section 2.8 Capital Contributions and Redemptions by the Sponsor; Withdrawal
and Substitution of the Sponsor; Mergers or Acquisitions.
(a) The Sponsor shall not have any obligation to make any Capital
Contributions, except as required by Law.
(b) In the event that the Sponsor does make a Capital Contribution, the
Sponsor may Redeem, without any breach of this Agreement or the Sponsor's
contractual or fiduciary duties hereunder, all or a portion of any of the
Sponsor's Units at any time without notice to the Members.
(c) The Sponsor may withdraw from the Platform, without any breach of
this Agreement or the Sponsor's contractual or fiduciary duties hereunder,
upon not less than sixty but not more than 100 days' prior written notice to
the Members.
(d) (i) One or more additional or substitute Sponsor(s) may be admitted
to the Platform in the sole discretion of the Sponsor without the
consent of any Member, provided that such additional or substitute
Sponsor(s) are Affiliates of the Sponsor. The Sponsor shall promptly
notify the Members of any such additional or substituted Sponsor(s).
(ii) One or more additional or substitute Sponsor(s) which are not
Affiliated with the Sponsor may be admitted as additional or substitute
Sponsor(s) only with the consent of a majority of the Voting Rights.
(iii) The admission of an additional or substitute Sponsor shall
not be cause for dissolution of the Platform, and all the Members shall
continue to be subject in all respects to the provisions of this
Agreement subsequent to such admission.
(e) The Sponsor may merge with, acquire or be acquired by any third
party without the need to give prior notice to Members. The Sponsor may make
any organizational changes, including the addition and/or replacement of any
of the Sponsor's employees or principals, as part of such merger or
acquisition.
Section 2.9 Sponsor's Fees.
As of the end of each calendar month, each Series shall be subject to a
Sponsor's Fee, payable to the Sponsor as if to a third-party and not as an
allocation to the Sponsor's Capital Account(s), if any, equal to 1/12th of
0.25% (0.02083 of 1%) of the Net Asset Value of such
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Series (a 0.25% annual rate). Such Sponsor's Fee shall be definitively
calculated based on the Sponsor's estimate of the Net Asset Value of each
Series (which may be based on the estimated Net Asset Value received from the
applicable Trading Advisor) as of the end of each calendar month and the
Sponsor's estimate of the Net Asset Value of the Reserve Assets attributable
to such Series. The Sponsor may share the Sponsor's Fee with Affiliates and
third parties. The Sponsor also may waive or reduce the Sponsor's Fees for
certain Members without entitling any other Member to any such waiver or
reduction.
ARTICLE III
CAPITAL ACCOUNTS; UNITS; FINANCIAL AND TAX ALLOCATIONS
Section 3.1 Admission of Additional Members; Capital Contributions.
(a) Subject to Section 3.1(b), the Sponsor may, at any time and from
time to time, admit one or more purchasers of Units as additional Members to
the Platform as well as permit Members to make additional Capital
Contributions through the purchase of Units, without the consent of the other
Members. Capital Contributions must be made in cash.
(i) Without limiting any other remedy available to the Platform,
if a Person fails, in part or in whole, to make a Capital Contribution
by the close of business on the day that such Capital Contribution was
due to be received (so that it could be invested in the Series selected
by such Person for such Capital Contribution) the Sponsor may, but shall
have no obligation to, take any action, at the expense of the Platform,
which the Sponsor may deem necessary or advisable in an attempt to
collect from such Person the costs and expenses incurred, if any, in
connection with such default and collection; provided, that the Sponsor
may determine to allocate all or a portion of such costs and expenses
equally among all Capital Accounts of the applicable Series outstanding
for the then current Accounting Period.
(ii) Upon admission to the Platform, whether as a result of a
Capital Contribution or Transfer, each new Member shall, by written
Subscription Agreement or another instrument or instruments satisfactory
to the Sponsor, become bound by and subject to all of the terms and
conditions of this Agreement.
(iii) The amount of each new Member's initial Capital
Contribution(s) shall be set forth in such new Member's Subscription
Agreement. An existing Member which makes additional Capital
Contributions need not complete a new Subscription Agreement for each
additional new Capital Contribution, unless otherwise requested by the
Sponsor; provided, however, that all agreements, covenants,
representations and warranties made by such Member in its original
Subscription Agreement shall be deemed to be ratified and reaffirmed at
the time such Member makes an additional Capital Contribution, and that
such Member may be requested to submit a short-form confirmation of the
foregoing.
(iv) Under no circumstances shall the Sponsor have any obligation
to accept any Capital Contribution from any Person, whether or not an
existing Member.
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(v) No Member shall have any pre-emptive rights or rights of first
refusal with respect to the issuance of additional Units.
(b) No Member shall be admitted, whether as a result of a Capital
Contribution or Transfer, if doing so would result in an Impermissible Event.
In the event that any such Member is admitted to the Platform, such Member's
admission shall be null and void ab initio (except to the extent that the
other Members have been damaged by such admission, in which case such Member's
Capital Account(s) shall be debited with the amount of any such damage pro
rata in accordance with the Net Asset Value of such Capital Accounts),
irrespective of whether the Sponsor had expressly consented thereto. For the
avoidance of doubt, no Sponsor Party shall have any liability to the Platform
or any Member for admitting any Member in violation of this Section 3.1(b),
provided that such Sponsor Party's conduct is consistent with the standard set
forth in Section 2.6.
(c) The admission of additional Members shall not cause the dissolution
of the Platform, and all the Members shall continue to be subject to the
provisions of this Agreement in all respects subsequent to such admission.
(d) Members shall not receive interest on their Capital Contributions,
except, in the sole discretion of the Sponsor, as may be accrued while such
Capital Contribution is held in escrow prior to the issuance of the Units of
any Series. The interest, if any, earned on a Capital Contribution received
from a Member or prospective Member prior to the beginning of the Accounting
Period as of which the corresponding Units are issued shall be contributed,
upon issuance of the related Units to such Member, to the Reserve Assets as a
general asset of the Series in question.
Section 3.2 Limited Liability of Members.
(a) No Member (including the Sponsor, as applicable) shall be personally
liable for or subject to any liability or obligation whatsoever of the
Platform. Irrespective of whether any Units held by Members have deficit
Capital Accounts, no Member(s) shall have any obligation to make any Capital
Contribution with respect to such deficit(s), and no such deficit(s) shall be
considered a debt owed by any such Member(s) to the Platform or to any other
Member(s) for any purpose whatsoever.
(b) The assets and liabilities of each Series shall be segregated and
held (directly or indirectly, through a nominee or otherwise) and accounted
for separately and distinctly from those of the Platform and any other Series.
(c) No Series shall be subject to any liability or obligation whatsoever
of any other Series.
(d) The Platform shall cause to be maintained true and full books of
account maintained in accordance with generally accepted accounting principles
consistently applied and in which shall be entered fully and accurately each
transaction of each Series, each such Series to be accounted for separately.
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Section 3.3 Capital Accounts and General Financial Allocations.
(a) A Capital Account shall be established for each Unit, and for the
Sponsor on a Unit-equivalent basis. The balance of each Unit's Capital Account
shall be the amount contributed to the Series with respect to such Unit, which
amount shall be equal to the Net Asset Value per Unit (or, in the case of an
initial offering of a Series, a price per Unit as determined by the Sponsor)
on the date each Unit is purchased after all accrued fees and expenses,
including performance fee accruals at the Trading Fund level which may, in
fact, never be paid. As of the close of business (or as determined by the
Sponsor) on the last day of each month, any increase or decrease in a Series'
Net Asset Value as compared to the last such determination of Net Asset Value
shall be credited or charged equally to the Capital Accounts of all Units then
outstanding; provided that for purposes of maintaining such Capital Accounts,
amounts paid or payable to the Sponsor for items such as Sponsor's Fees shall
be treated as if paid or payable to a third party and shall not be credited to
the Capital Account held by the Sponsor.
(b) For purposes of this Article III, unless specified to the contrary,
Units Redeemed as of the end of any month shall be considered outstanding as
of the end of such month, but not as of the beginning of the immediately
following month.
(c) As of the end of each calendar month, the Sponsor's Fees and
Administrative Fee charged to the applicable Series shall be allocated equally
to all Units of such Series. Such Sponsor's Fees and Administrative Fees shall
reduce each Unit's Capital Account balance as of the date when such Sponsor's
Fees and Administrative Fees become payable (rather than only accrued),
irrespective of when actually paid.
Section 3.4 Allocation Principles Regarding the Series.
(a) To the extent possible, each Series shall be accounted for as if it
were a separate limited liability company (as provided herein, each Series
shall operate on a "separate and distinct" basis from each other Series).
(b) The Net Income or Net Loss attributable to a Series' Trading Fund
shall be allocated solely to such Series.
(c) The Net Income or Net Loss attributable to a Series' Reserve Assets
shall be allocated solely to such Series.
(d) The aggregate Net Income and Net Loss attributable to a Series shall
be allocated equally among all outstanding Units of such Series.
(e) Any allocation by the Sponsor of general liabilities, expenses,
costs, charges or Reserves which are not readily identifiable as belonging to
any particular Series among one or more Series shall not represent a
commingling of such Series to pool capital for the purpose of carrying on a
trade or business or making common investments and sharing in profits and
losses therefrom.
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Section 3.5 Tax Allocations.
(a) (i) For each Fiscal Year, each Series shall be treated as if it were
a separate business entity under applicable Treasury Regulations. The
Tax Items allocated by each Series among its Units shall be allocated
for federal income tax purposes among such Units in a manner as to
reflect equitably amounts credited or debited to each Member's Capital
Account(s) for the current and prior Fiscal Years (or relevant portions
thereof). Allocations under this Section 3.5 shall be made pursuant to
the principles of Section 704(b) and 704(c) of the Code, and Treasury
Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and
1.704-3(e), as applicable, or the successor provisions to such Code
Sections and Treasury Regulations.
(ii) For the avoidance of doubt, consistent with Section
3.5(a)(i), the Sponsor shall allocate Tax Items to the greatest extent
possible so as to equalize the tax basis and Capital Accounts of the
Units of such Series.
(iii) 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" requirements of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
(b) If the Code or Treasury Regulations require a withholding or other
adjustment with respect to the Units of a given Series held by any Member or
some other interim year event occurs necessitating in the Sponsor's judgment
an equitable adjustment, the Sponsor shall make such adjustments and/or
allocations among the Members of the affected Series of capital, income and
expense items, Series Percentage, Tax Items, accounting procedures or such
other financial matters as the Sponsor believes shall equitably take into
account such interim year event and applicable provisions of Law, and the
determination thereof by the Sponsor shall be final and conclusive as to all
of the Members.
(c) In the case of Prior Period Adjustments, and any other non-pro rata
allocations of capital, income and expense items to fewer than all Members of
a Series as provided herein, the Sponsor shall allocate the associated Tax
Items with regard so as equitably to reflect the affected Members' respective
economic gains and losses from such allocations.
(d) The Sponsor may, but shall not be obligated to, allocate Tax Items
on a gross rather than net basis, and may also allocate Tax Items differently
to differently situated Members and former Members, to the extent that doing
so is permissible under the Code and the Treasury Regulations.
(e) Tax allocations shall be made between the Transferee and Transferor
of Units so as to reflect as closely as practicable the economic gain or loss
experienced by each with respect to such Units during the Fiscal Year in which
the Transfer occurred.
(f) To the extent permitted by the applicable Treasury Regulations, the
Sponsor may make adjustments to the method in which allocations are made by
each Series among the Units of such Series as the Sponsor may deem reasonable.
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Section 3.6 Consistent Tax Reporting.
(a) Except as otherwise agreed to in writing by the Sponsor, all
Members, including former Members, shall report all Tax Items (including the
character and timing of such Tax Items) related to a Series in a manner
consistent with the manner in which such Tax Items are reported by such
Series.
(b) The Platform intends to treat each Series as a "separate business
entity" within the meaning of ss. 301.7701-2(a) of the Treasury Regulations
for federal income tax purposes with each Series eligible to make a separate
entity classification election pursuant to ss. 301.7701-3 of the Treasury
Regulations. The Sponsor shall have the authority to make an entity
classification election with regard to each Series in the manner prescribed by
the applicable Treasury Regulations. Each Member authorizes the Sponsor to
make an entity classification election for each Series in the manner
prescribed in the applicable Treasury Regulations and agrees to treat each
Series in a manner consistent with the Sponsor's entity classification for
such Series for all federal income tax purposes, including any reporting
requirements. Consistent with Section 3.6(a), the Sponsor shall furnish each
Member of a Series with the information necessary for the Member to determine
the entity classification of such Series for U.S. federal income tax purposes,
and the Sponsor shall use its best efforts to furnish such information on a
timely basis.
(c) The Platform intends to treat the Platform (representing the
aggregate of all Series) as a partnership that has no items of income, gain,
loss, deduction or credit for federal income tax purposes. No party to this
Agreement is authorized to make an entity classification election pursuant to
ss. 301.7701-3 of the Treasury Regulations to treat the Platform (representing
the aggregate of all Series) as a corporation or an association taxable as a
corporation for federal income tax purposes. Each Member authorizes the
Sponsor to make an entity classification election, as necessary, for the
Platform (representing the aggregate of all Series) to be treated as a
partnership for federal income tax purposes in the manner prescribed in the
applicable Treasury Regulations and agrees to treat the Platform in a manner
consistent with the Sponsor's entity classification of the Platform for all
U.S. federal income tax purposes, including any reporting requirements.
Section 3.7 "Tax Matters Partner."
(a) For purposes of Section 6231(a)(7) of the Code, or any corresponding
provision of any future Law, the "Tax Matters Partner" of the Platform and
each Series shall be the Sponsor.
(b) The Tax Matters Partner shall have the power to make or revoke all
tax elections and determinations for the Platform and each Series severally
and to take any and all actions necessary or permitted under the Code, the
regulations promulgated thereunder, or other provisions of Law to effect those
elections, determinations and allocations. All elections, determinations and
allocations by the Tax Matters Partner shall be binding upon all Members and
their respective successors, assigns and heirs.
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(c) The Tax Matters Partner shall have comparable authority in respect
of any state, local or foreign tax, tax law or tax claim relating to the
Platform, any Series and the Members, as the Tax Matters Partner has under the
Code in such capacity.
(d) The cost of any examination or audit of, and of any adjustment to, a
Member's tax return shall be borne solely by the affected Member.
(e) The Tax Matters Partner shall be entitled to be reimbursed for all
expenses incurred by the Tax Matters Partner in performing its services as Tax
Matters Partner, as well as to be released from all liability for, and
indemnified for any loss, cost, expense, liability, fees (including attorneys'
fees and expenses) and damages suffered or sustained in, performing such
services, subject to the standards set forth in Sections 2.6.
Section 3.8 Determination of Net Asset Value.
(a) The Sponsor, or such party as may be duly appointed by the Sponsor,
shall determine each Trading Fund's Net Asset Value using the following
principles as communicated to the Trading Advisor for such Trading Fund:
(b) (i) The liquidating value of a commodity futures contract or option
traded on a U.S. commodity exchange shall be based upon the settlement
price on the commodity exchange on which the particular commodity
futures contract or option is traded; provided that, if a contract or
option cannot be liquidated on the day with respect to which Net Asset
Value is being determined, the basis for determining the liquidating
value of such contract or option shall be such value as the Sponsor or
its appointee may deem fair and reasonable.
(ii) The liquidating value of a futures, forward or options
contract not traded on a U.S. exchange shall be its liquidating value,
determined based upon policies established by the Sponsor or its
appointee, on a basis consistently applied for each different variety of
contract.
(iii) No value shall be ascribed to goodwill or any other
intangible asset of the Trading Fund.
(c) The Sponsor, or such party as may be duly appointed by the Sponsor,
shall determine the Net Asset Value of each Series using the following
principles:
(i) The Net Asset Value of each Series shall be determined in U.S.
dollars, and any positions denominated in other currencies are
translated at prevailing exchange rates as determined by the Sponsor.
(ii) The Reserve Assets shall be valued in such manner as the
Sponsor or its appointee may determine to reflect fair market value and
the accrual of interest.
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(d) The Net Asset Value per Unit shall be calculated by dividing the Net
Asset Value of the applicable Series (aggregating the Net Asset Value of the
corresponding Trading Fund and such Series' Reserve Assets) by the number of
Units outstanding in such Series. For the avoidance of doubt, all Units of the
same Series shall have the same Net Asset Value.
(e) The Sponsor, or such party as may be duly appointed by the Sponsor
to calculate the Net Asset Value, is hereby authorized to make all Net Asset
Value determinations (including, without limitation, for purposes of
determining Redemption payments and calculating Sponsor's and Administrative
Fees) on the basis of estimated numbers. The Sponsor or such other party shall
not (unless it otherwise determines) make retroactive adjustments in order to
reflect the difference between estimated and final numbers, but rather shall
reflect such difference (including, for purposes of calculating Redemption
payments and Sponsor's and Administrative Fees) in the Accounting Period when
such differences are determined.
(f) The Sponsor may suspend the calculation of the Net Asset Value of a
Series' Units during any period for which the Sponsor or its appointee is
unable to value a material portion of the corresponding Trading Fund's
positions. The Sponsor shall give notice of any such suspension to Members
invested in such Series.
(g) Redemptions and Distributions shall, after the Effective Date
thereof (as the same may be postponed pursuant to the terms of this
Agreement), be deemed to have been paid out of the Platform as of such
Effective Date, and shall no longer be included in either the Platform's or
any Series' assets or liabilities (irrespective of when actually paid out).
Section 3.9 Use of Estimates and Trading Advisor Estimates.
The Sponsor, or any party duly selected by the Sponsor as appropriate,
is expressly authorized to make all financial (and the related tax)
allocations provided for hereunder, as well as to determine all Net Asset
Values and Capital Account balances, based on estimates, both as made or
compiled by the Sponsor and as received from the Trading Advisors.
Furthermore, the Sponsor shall not be obligated to restate allocations,
Sponsor's Fees, Administrative Fees, Redemption proceeds, Net Asset Values or
any other determinations previously made in order to reflect the difference
between estimated and final Net Asset Values, but rather may, but shall have
no obligation to, reflect such difference entirely in the Accounting Period in
which such difference is determined.
Section 3.10 Prior Period Adjustments.
(a) (i) Each Member holding Units in a given Series shall either (A) pay
(if a former Member) or (B) permit (if still a Member) the Sponsor to
deduct from the Capital Account(s) of the Units held by such Member by
Redeeming Units, the amount of any Prior Period Adjustment that the
Sponsor determines to be due from such Member or former Member with
respect to such Series. With regard to each Series, if a Prior Period
Adjustment (or portion thereof) can be specifically identified as
attributable to a Member or a former Member of such Series, then the
Sponsor shall use reasonable efforts to allocate such Prior Period
Adjustment to, and collect such Prior Period Adjustment from, such
Member (by Redemption of Units or otherwise) or former Member. The
Sponsor
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shall use reasonable efforts to allocate each Prior Period Adjustment to
the current or former Members (each, a "Prior Period Member") which were
Members during the Accounting Period(s) to which such Prior Period
Adjustment relates in accordance with the number of Units of such Series
which such current or former Member then held. For the avoidance of
doubt, each Prior Period Member shall be liable for such portion of each
such Prior Period Adjustment as is proportionate to such Prior Period
Member's Units or average Units outstanding, as compared to the total
Units or average total Units outstanding, for the relevant prior
Accounting Period(s);
(ii) In no event shall any provision of this Section 3.10 require
any Member or former Member to make a Capital Contribution to repay to
the Platform any amounts in excess of the Redemptions or Distributions
made to such Member or former Member with respect to the Series in
question (and, for the avoidance of doubt, not with respect to any other
Series).
(b) Any portion of a Prior Period Adjustment that cannot, as determined
by the Sponsor, practicably be collected from Prior Period Members shall be
allocated equally among all Units of the affected Series outstanding during
the then current Accounting Period.
(c) The Sponsor may, but shall have no obligation to, take, at the
expense of the affected Series, any action which the Sponsor may deem
necessary or advisable in an attempt to collect the amount of any Prior Period
Adjustment, as well as the costs and expenses related to such collection, from
the affected Prior Period Members. In no event shall the Sponsor be liable for
any failure of the Platform or the affected Series to receive Prior Period
Adjustments from a Prior Period Member or for the Sponsor declining to
prosecute any claim therefor.
(d) No Prior Period Adjustments, not specifically associated with a
Member or former Member, shall be subject to the special allocation provisions
of this Section 3.10 unless the amount of such Prior Period Adjustment exceeds
2.5% of the Net Asset Value of the affected Series as of the date that such
Prior Period Adjustment would otherwise be specially allocated pursuant to
this Section 3.10. For such purposes, a given Prior Period Adjustment shall
include all items relating to the same or related causes occurring at or about
the same time, as the Sponsor may determine.
(e) Notwithstanding the foregoing provisions of this Section 3.10, in
the event that a Prior Period Adjustment results in income or gain to rather
than a cost or a liability, such income or gain, irrespective of amount, shall
be allocated pro rata solely among the Units of the affected Series
outstanding as of the date that such income or gain becomes available for
distribution.
Section 3.11 Reserves.
(a) The Sponsor may from time to time establish (and/or reverse): (i)
such Reserves as the Sponsor may determine to reflect contingent, uncertain
and other potential, as well as established, liabilities and/or contingences
and/or for any other reason. Reserves shall reduce the Net Asset Value of the
Series (and of the Units of such Series) with respect to which such Reserves
are established.
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(b) The Sponsor may allocate Reserves, as well as their reversal, among
the Capital Accounts of Units held by the Members (and among the Capital
Accounts of Units held by certain Members but not others), in such manner as
the Sponsor may determine.
Section 3.12 Manner of Effecting Non-Pro Rata Allocations.
As all Units of any given Series shall have the same Net Asset Value,
any special or non-pro rata allocations or Distributions shall be effected by
the Redemption or issuance of Units.
ARTICLE IV
REDEMPTIONS AND EXCHANGES
Section 4.1 Redemptions.
(a) Members' ability to Redeem Units of a Series is entirely dependent
on such Series' ability to effect corresponding withdrawals from the Trading
Fund in which such Series has invested substantially all of its capital.
(b) Units may be redeemed as of the end of any calendar month at the Net
Asset Value per Unit at such date. Redemption requests must be submitted on or
prior to the 15th day of the calendar month of such Redemption or the
following business day. The Sponsor may permit redemptions at other times and
on shorter notice.
(c) Any Redemption shall be reduced by any Reserves established by the
applicable Series (see Section 3.11).
(d) No Redemption of Units shall be effective if, on or before the
scheduled Effective Date of such Redemption, the Series issuing such Units
dissolves or the Trading Advisor in question gives notice of its intention to
dissolve such Series' Trading Fund. Any affected Redemption notices shall be
deemed rescinded ab initio and have no further force or effect.
(e) The Sponsor may mandatorily Redeem part or all of the Units held by
a particular Member if the Sponsor determines that (a) such Member's continued
holding of Units could result in adverse consequences to the Platform or the
relevant Series or Trading Fund, (b) such Member's investment in the Units, or
aggregate investment in the Platform, is below the minimum level established
by the Sponsor (including any increase in such minimum level that the Sponsor
may implement in the future) or (c) for any other reason.
(f) If the calculation of Net Asset Value is suspended pursuant to
Section 3.8(f), Redemptions may be suspended by the Sponsor as well.
Redemptions may also be suspended if the Sponsor believes that not suspending
Redemptions would be materially adverse to the continuing Members. The Sponsor
will give notice of any such suspension to all Members in any Series to which
such suspension would apply.
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Section 4.2 Distributions.
(a) The Sponsor may at any time determine to make Distributions to one
or more Members with respect to one or more Series. Distributions need not be
made pro rata to Members in accordance with the number or Net Asset Value of
the Units held by such Members or deducted from the Capital Accounts of the
Units held by such Members pro rata in accordance with the number of Units of
the applicable Series held by such Member, and may be made to certain Members
and not to others.
(b) Income taxes paid or withheld by a Series in respect of income or
gain allocable to a Member shall not be treated as an expense of such Series
but rather shall be treated as a Distribution to such Member. A Distribution
shall reduce, by Redemption of Units, the number of Units held by the
recipient Member in such manner as the Sponsor may determine.
(c) For the avoidance of doubt, no Sponsor Party shall have any
liability to the Platform, any Series or any Member for making a Distribution
to a Member provided that such Sponsor Party acted in a manner consistent with
the standard set forth in Section 2.6.
Section 4.3 Transfers.
(a) No Member shall assign, encumber, pledge, hypothecate or otherwise
transfer (collectively, "Transfer") any of such Member's Units without the
consent of the Sponsor, and any such Transfer of Units, whether voluntary,
involuntary or by operation of law, to which the Sponsor does not consent
shall result in the Units so Transferred being mandatorily redeemed as of the
end of the month during which such purported Transfer occurred; provided,
however, that a Member may Transfer the economic benefits of ownership of its
Units without regard to such consent. Any Transfer which shall result in the
termination of a Series for federal income tax purposes or the violation of
federal or state securities laws shall be null and void ab initio and of no
legal force or effect whatsoever. An assigning Member shall remain liable to
such Series as provided in the Act, regardless of whether his or her assignee
becomes a substituted Member.
(b) The Sponsor may not Transfer all or any portion of its manager's
interest in a Series; provided, that the Sponsor may assign such interest (i)
to an Affiliate of the Sponsor upon notice (which need not be prior notice) to
the Members, (ii) in connection with the sale or Transfer of all or a material
portion of the Sponsor's equity or assets or (iii) by the vote or written
consent of a majority of the Voting Rights.
Section 4.4 Effective Date of Redemptions and Distributions.
As of the Effective Date of any Redemption or Distribution, the
Units or Capital Account balances subject to such Redemption or Distribution
shall cease to participate in the Net Income and Net Losses of the related
Series, irrespective of the time or times that the proceeds of such Redemption
or Distribution are paid out.
Section 4.5 Payment of Redemption and Distribution Proceeds.
(a) Payments of Redemption or Distribution proceeds shall be made as the
related monies are received from the applicable Trading Fund. For the
avoidance of doubt, the Sponsor
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may retain the Reserve Assets attributable to a Redemption or Distribution
until proceeds are received from the Trading Fund.
(b) The Sponsor may deduct from any Redemption or Distribution proceeds
otherwise payable to any Member any amount believed or estimated by the
Sponsor to be owed by such Member to the Platform or by the Platform on behalf
of such Member.
(c) In the case of any given Redemption or Distribution, payment may be
delayed, in the event that it is not possible for the offered Series to
withdraw from the related Trading Fund effective as of the scheduled Effective
Date.
Section 4.6 Exchanges
(a) If more than one Series are offered by the Platform, Members may
Exchange the Units of the different Series. Subject to the conditions
described below, Exchanges will be allowed as of the end of each calendar
month on the same notice as is required for Redemptions. Such Exchanges shall
be made between Units of different Series at their respective Net Asset Values
as of the applicable dates and may be made in such minimums as may be
determined by the Sponsor from time to time.
(b) The ability to Exchange Units may be restricted or terminated in the
sole discretion of the Sponsor at any time. The Sponsor is under no obligation
to continue to permit Exchanges.
(c) Units acquired in an Exchange shall be indistinguishable from Units
acquired with a new subscription.
(d) No placement fees, Redemption or Exchange charges shall be assessed
on any Exchange. Exchanges shall be treated as Redemptions from the Series
from which Units are Exchanged and subscriptions into the Series into which
Units are Exchanged. Only whole Units may be Exchanged. Any dollar amounts
Exchanged which cannot be reinvested into whole Units shall be credited to an
exchanging Member. However, if a Member Exchanges all of the Units of a
particular Series owned by such Member, fractional Units may be Exchanged and
any minimum Exchange requirement shall not apply, at the discretion of the
Sponsor.
(e) Members hereby agree that if the net trading profits of a Series out
of which a Member Exchanges is below such Series' "high water ▇▇▇▇," the
reduction of performance fees otherwise due in respect to future profits shall
be forfeited and shall have no effect on the calculation of the performance
fee due in respect of the Series into which such Member Exchanges.
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ARTICLE V
DISSOLUTION; REMOVAL OF SPONSOR
Section 5.1 Dissolution.
(a) A Series shall be terminated only upon the occurrence of one of the
following events:
(i) the determination of the Sponsor to do so for any reason (for
the avoidance of doubt, the Sponsor shall be entitled, without any
violation of any contractual or fiduciary obligation to any Member, to
dissolve any Series at any time);
(ii) as required by Law (including the entry of a decree of
judicial termination under Section 18-215 of the Act); or
(iii) the dissolution of the Platform.
(b) (i) Upon termination of a Series for any reason, such Series shall
continue in existence for the purpose of winding up its affairs, and the
assets of such Series shall be applied by the Sponsor in the order of
priority set forth in Sections 18-215 and 18-804 of the Act. The
termination and winding-up of a Series shall not, in and of itself,
cause a dissolution of the Platform or the termination of any other
Series. The termination of any Series shall not affect the limitation on
liabilities of such Series or any other Series provided by this
Agreement, any Separate Series Agreement, any Certificate of Formation
or the Act.
(ii) Each Series shall be wound-up in same manner as the Platform,
as described below.
(c) The Platform shall be dissolved only upon the occurrence of one of
the following events:
(i) the withdrawal, removal, Bankruptcy or dissolution of the
Sponsor, unless the business of the Platform is continued within 90 days
following the occurrence of such event by the vote or written consent of
a majority of the Voting Rights;
(ii) the determination of the Sponsor to do so for any reason (for
the avoidance of doubt, the Sponsor shall be entitled, without any
violation of any contractual or fiduciary obligation to any Member to
dissolve the Platform at any time); or
(iii) as required by Law (including the entry of a decree of
judicial termination under Section 18-215 of the Act);
(d) (i) Upon dissolution of the Platform for any reason, the Platform
shall continue in existence for the purpose of winding up its affairs,
and the assets of the Platform shall be liquidated by the Sponsor.
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(ii) The Sponsor may postpone notice of the dissolution or
proposed dissolution of the Platform or any Series to Members and/or
third parties until such time as the Sponsor determines that doing so
would not adversely affect the Platform or any Member.
(e) As soon as the Sponsor deems reasonably practicable after the
dissolution of the Platform, the Platform's assets shall be liquidated and
distributed in the following manner and order of priority to the extent
permitted by Law:
(i) The claims of all creditors of the Platform which are not
Members shall be paid and discharged;
(ii) The claims of all creditors of the Platform which are Members
shall be paid and discharged; and
(iii) Any income, gain or loss during the period of winding up
shall be allocated to the Members in accordance with Article III, and
the Members shall share in the remaining assets of the respective Series
equally with respect to each Unit of such Series held by them.
(f) The Sponsor shall determine whether any assets of the Platform shall
be liquidated through sale or, alternatively, shall be distributed to the
Members in kind.
(g) Upon the dissolution of the Platform or a Series, neither the name
of the Platform or such Series nor its good-will, if any, shall be considered
to be an asset of the Platform, such name and its derivatives to be the sole
property of the Sponsor or its designee. No value shall be placed on the
Platform's or any Series' name or good-will for the purpose of liquidation or
for any other purpose during the continuation of the Platform or such Series.
(h) In the event that the Platform is liquidated, with regard to each
Series, Distributions shall be made only to Units with positive Capital
Accounts, in compliance with applicable Treasury Regulations.
(i) All Distributions shall be subject to any Reserves that the Sponsor
may establish.
(j) Any Distributions that would otherwise be made to a Member shall be
retained by the Platform (for Distribution to the other Members) to the extent
of any amounts owed by such Member.
(k) Upon dissolution of the Platform, no Member shall have any
obligation (other than as may arise under Section 3.10) to make any Capital
Contribution with respect to any deficit Capital Account balance of Units held
by such Member, and no such deficit shall be considered a debt owed by any
such Member to the Platform or to any other Member for any purpose whatsoever.
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Section 5.2 Payment of Dissolution Proceeds.
Dissolution proceeds shall be paid out in the same manner as Redemption
and Distribution proceeds pursuant to Section 4.5.
Section 5.3 Removal of the Sponsor.
(a) Notwithstanding anything to the contrary (implied or explicit) in
this Agreement, a majority of Voting Rights, not including any Voting Rights
held by the Sponsor and/or any of its Affiliates, of any Series can vote (in a
meeting or by written consent) to remove the Sponsor with respect to such
Series and replace the Sponsor with the third party of their choice, and the
majority by Net Asset Value of all outstanding Units, not including any Units
held by the Sponsor and/or any of its Affiliates, can remove the Sponsor with
respect to the Platform and all Series to the same effect.
(b) To the extent the Statement of Financial Reporting Standards 46 is
modified, including reducing or eliminating the voting requirement for
removing the Sponsor, Section 5.3(a) will be modified accordingly.
ARTICLE VI
PLATFORM EXPENSES
Section 6.1 Platform Expenses.
(a) The Sponsor shall pay, and each Series shall reimburse the Sponsor
for such payment of, all operating costs of any nature related to the
Platform's and the relevant Trading Fund's operations and business (including
the retention and attraction of capital), the Sponsor's Fees set forth in
Section 2.9, the Administrative Fee and any indemnification expenses provided
for in Sections 2.6 and 2.7; provided that the Series shall not bear any of
the Sponsor's internal expenses such as office rent, salaries and bonuses.
Such operating costs are allocated pro rata among the Units of the applicable
Series based on their respective Net Asset Values.
(b) For the avoidance of doubt, the operating costs paid by each Series
shall include: ongoing offering expenses; execution and clearing brokerage
commissions; forward and other over-the-counter trading spreads;
administrative, Transfer, Exchange and Redemption processing, legal,
regulatory, reporting, filing, tax, audit, escrow, accounting and printing
fees and expenses, as well as extraordinary expenses.
(c) The Sponsor may retain outside service providers to supply certain
services to the Platform, including, without limitation, tax reporting,
accounting and escrow services. Operating costs include the respective Series'
allocable share of the fees and expenses of such outside service providers, as
well as the fees and expenses of any Sponsor Party or other service provider
which may provide such (or other) services in the future.
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ARTICLE VII
BOOKS OF ACCOUNT; REPORTS
Section 7.1 Books of Account.
(a) The Platform shall keep its books of account at its principal place
of business (or at such other location as the Sponsor may designate) using a
method of accounting selected by the Sponsor, provided that Capital Accounts
shall be maintained in accordance with the terms of this Agreement.
(b) Notwithstanding any provisions of this Agreement or any Separate
Series Agreement to the contrary, pursuant to Section 18-215 of the Act,
separate and distinct books and records shall be maintained with respect to
each Series.
(c) Members participating in a Series may inspect the books of account
of the Platform with regard to such Series during normal business hours at the
office of the Platform for any valid, non-commercial, equitable purposes
relating to such Member's status as a Member or as required by Law. Members'
inspection rights shall not include the right to copy any books or records,
shall be limited to the financial ledgers of the Series in which such Members
participate or information relating to a Series in which the Member does not
participate and shall specifically not include the right to inspect: (i)
trading records; (ii) the Platform's or any Trading Fund's portfolio at any
point in time; (iii) proprietary information relating to the strategies
implemented by the Sponsor or any Affiliate thereof on behalf of the Platform;
or (iv) the names or other identifying features of other Members.
(d) Any inspection of the Platform's books and records shall be
permitted only upon reasonable prior notice (no fewer than ten business days)
to the Sponsor, and shall be at the expense of the Member requesting such
inspection.
(e) The accounts of the Platform shall be audited (at the expense of
each Series) as of the close of each Fiscal Year by a nationally recognized
independent public accounting firm selected by the Sponsor.
Section 7.2 Reports.
As soon as practicable after the end of each Fiscal Year, the Platform
shall furnish to each Member:
(a) the audited balance sheet and income statement of each Series into
which the Member has invested as of the end of and for such Fiscal Year;
(b) such Member's Unit balances as of the end of such Fiscal Year
(separately indicating the Unit balances attributable to each Series);
(c) the percentage change in the Member's Unit balances during the
latest such Fiscal Year (separately indicating such change in the Unit
balances attributable to each Series); and
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(d) a copy of Schedule K-l to each Series' federal income tax return for
such Fiscal Year, in a form sufficient to enable the Member to determine the
share of Tax Items allocable to the Capital Account(s) of such Member's Units.
Each Series may not be able to deliver financial statements and Schedule
K-1 to its federal income tax return to each Member prior to the time that
such Member is required to file such Member's federal income tax returns
without extensions, and the Sponsor shall not be liable to the Platform, any
Series or any Member for its inability to do so, provided that the Sponsor
acts in a manner consistent with the standard forth in Section 2.6.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Binding Effect; Creditors.
(a) This Agreement shall be binding upon and inure to the benefit of the
Members, the Indemnified Parties and their respective successors, permitted
assigns, heirs and legal representatives.
(b) None of the provisions of this Agreement shall be for the benefit
of, or enforceable by, any creditor of any Member or of the Platform. No
creditor which makes a loan to a Member or to the Platform may have or
acquire, solely as a result of making such loan, any Units or interest in the
profits or property of the Platform, other than such Units or interest in the
profits or property of the Platform that may be expressly granted to such
creditor, with the written consent of the Sponsor, pursuant to the terms of
such loan.
Section 8.2 Notices; Consents.
All notices and consents (including votes and waivers) under this
Agreement shall be in writing and shall be deemed to have been duly given if
(a) personally delivered (with receipt thereof acknowledged in writing), (b)
sent by facsimile, electronic mail, digital image file or any other electronic
format (collectively, "Facsimile"), in each case with receipt of the
transmission confirmed (and, unless waived by the recipient upon such receipt,
confirmed by delivery in another manner permitted hereunder), (c) if mailed by
pre-paid certified mail, return receipt requested or (d) sent by reputable
overnight courier (receipt confirmed), in each case to the parties at the
following addresses (or at such other address as the Platform or a Member may
have specified to the other by notice as provided herein):
(a) If to a Member, to such Member at the address set forth in such
Member's Subscription Agreement or other written instrument acceptable to the
Sponsor.
(b) (i) Notices given in accordance with this Section 8.2 shall be
deemed given on the date of receipt, if delivered personally or by
Facsimile, on the first business day after being sent by a reputable
courier service and on the third business day after being posted.
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(ii) Notices of Redemptions shall be deemed given only when
actually received by the Platform.
(c) Any notice required hereunder need not be prior notice unless
expressly so specified.
(d) Any notice period specified herein shall end on the close of
business on the day that is the prescribed number of days following the first
day of the relevant period, unless that day is not a business day, in which
case such notice period shall end as of the close of business on the next
succeeding business day.
Section 8.3 Counterparts; Facsimiles; Power of Attorney.
(a) This Agreement may be executed in counterparts with the same effect
as if the parties had all executed the same copy, each of which shall,
however, together constitute one and the same document.
(b) Facsimiles of executed documents shall, for all purposes of this
Agreement and all transactions into which the Platform enters, have the same
force and effect as executed originals.
(c) The Platform shall be authorized to accept and execute any
instructions given by a Member in respect of such Member's Units, either in
original signed form or by Facsimile. If instructions are given by Facsimile,
the Member shall promptly courier the original signed form to the Sponsor and
will indemnify the Sponsor, the Platform and the Sponsor Parties for any
losses or damages suffered by the Sponsor, the Platform or any Sponsor Party
as a result of acting on Facsimile instructions rather than instructions in
original signed form; provided, however, the failure of a Member to deliver
the original signed form shall not vitiate the instructions contained in the
Facsimile. The Sponsor, the Platform and the Sponsor Parties are entitled to
rely conclusively, and shall incur no liability in respect of any action taken
or omitted, on the basis of any notice, consent, request, instruction or other
instrument believed in good faith to be genuine or to be signed by properly
authorized persons.
(d) This Agreement may be executed by power-of-attorney embodied in a
Subscription Agreement or other written instrument with the same effect as if
the parties executing the Subscription Agreement or other written instrument
had all executed the same copy.
Section 8.4 Entire Agreement.
This Agreement, together with the Subscription Agreement executed and
delivered by each Member (other than the Sponsor, if applicable) and the
Separate Series Agreement established by each Series, sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements and undertakings with respect
hereto, except that the foregoing shall not supersede any agreement between
any employee or consultant of a Sponsor Party and such Sponsor Party or
between any service provider and a Sponsor Party or a Sponsor client.
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Section 8.5 Amendment.
(a) (i) Subject to Section 8.5(a), of this Agreement (as well as any or
all Separate Series Agreements) may be amended or modified at any time
with the consent of the Sponsor and of a majority of the Voting Rights;
provided that amendments or modifications which affect only certain
Series shall require only the consent of the Sponsor and a majority of
the Voting Rights associated with such Series. The consent of Members
other than the Sponsor may be given through any of the methods provided
in Section 8.6.
(ii) The Sponsor, without obtaining the consent of any Member, may
amend this Agreement (as well as any or all Separate Series Agreements)
for any of the following purposes: (A) in order to correct ambiguities,
defects, inconsistencies and typographical errors; (B) in any respect
that does not materially adversely affect the rights of the Members as a
whole; (C) to avoid an Impermissible Event; and (D) in whatever manner
the Sponsor may determine to be necessary or advisable in order for this
Agreement and the Platform to comply with Law or any contractual
provision.
(iii) Notwithstanding the foregoing, no amendment may be made to
this Agreement (or to any Separate Series Agreement) without the
unanimous consent of the Members (given by any of the methods set forth
in Section 8.6), if such amendment would: (A) adversely affect the
limited liability of the Members under Law; (B) expose one Series to
debts and obligations of any other Series; or (C) cause the Platform to
cease to be treated as a partnership for federal income tax purposes
(unless doing so would increase the net after-tax return of the
Platform's trading to investors).
(iv) The Sponsor shall promptly notify all Members of all
amendments.
(b) This Agreement (as well as any or all Separate Series Agreements)
may be amended as provided in Section 8.5(a), irrespective of whether such
amendment diminishes a Member's rights hereunder; provided, that without such
Member's prior written consent, no Capital Account(s) of the Units held by the
Member may be reduced by any such amendment.
(c) The Sponsor may execute, on the Platform's behalf, any agreement,
instrument or document containing any amendment approved as provided in
Section 8.5(a) in any manner contemplated by Section 8.6 pursuant to the power
of attorney granted to the Sponsor in Section 8.10.
(d) Any amendment approved as provided in Section 8.5(a) shall be
treated as if such amendment had been approved by all Members, irrespective of
whether fewer than all Members voted (including as contemplated by Section
8.6) in favor of such amendment.
Section 8.6 Consent of the Members.
Whenever the Members are asked to vote on or consent to any action
relating to the Platform, including any amendment or modification to this
Agreement, whether or not requiring unanimous consent, a Member may vote in
favor of or give consent to such action either affirmatively or negatively.
Members shall be deemed to have voted for or consented to such
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action if the Sponsor receives no notice of objection from such Member within
twenty days of giving notice to such Member of such action.
Section 8.7 Waivers.
(a) Except as otherwise expressly provided herein, the Sponsor may waive
any provisions of this Agreement, and may do so with respect to one or more,
but not other, Members (similarly situated or otherwise), provided that the
Sponsor reasonably believes that doing so will not materially adversely affect
the Platform.
(b) No failure or delay on the part of the Sponsor in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. Failure on the part of the Platform or the Sponsor to complain of any
act of the other or to declare the other in default under this Agreement,
irrespective of how long such failure continues, shall not constitute a waiver
by the Platform or the Sponsor of its rights with respect to such default.
(c) No consent or waiver, express or implied, to or of any breach or
default in the performance of any obligation hereunder, shall constitute a
consent to or waiver of any other breach or default in the performance of the
same or of any other obligation hereunder.
Section 8.8 No Partition.
(a) Each Member irrevocably waives any right that such Member might
otherwise have had to maintain any claim for partition with respect to any
property of the Platform or Series or to compel any sale or appraisal of any
Platform or Series asset or any sale or appraisal of a deceased Member's
Units.
(b) The Members shall not hold undivided interests in any asset of the
Platform or Series, but rather an interest in the Platform itself and the
Series themselves, which shall for all purposes be considered to constitute
personal property.
Section 8.9 Meetings.
(a) (i) Although not contemplated or required, Platform meetings may be
called by the Sponsor, at the expense of the Platform, to consider any
Platform matter upon which the Members may be entitled to vote or for
any other purpose related to the business of the Platform.
(ii) Platform meetings may include all Members or only Members
participating in certain Series, as the Sponsor may determine.
(b) For the avoidance of doubt, no Sponsor Party shall have any
liability to the Platform or any Member for any failure to call a meeting
under this Section 8.9, provided that such Sponsor Party's conduct in not
doing so is consistent with the standard set forth in Section 2.6.
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Section 8.10 Power of Attorney.
Each Member hereby irrevocably constitutes and appoints the Sponsor to
be such Member's true and lawful attorney, in such Member's name, place and
stead, to make, execute, acknowledge, file and publish, as the Sponsor may
deem necessary or advisable:
(a) all subscription agreements and other documents relating to the
Series investments in and withdrawals from the Trading Funds;
(b) any certificates and other instruments that may be required to be
filed by the Platform under the laws of the State of Delaware or any other
governmental authority having jurisdiction in the premises, or which the
Sponsor shall deem necessary or advisable to file;
(c) any certificate or other instruments amending or modifying the
Certificate of Formation of the Platform or any Series to evidence any changes
in that Certificate in accordance with the terms of this Agreement;
(d) any certificates or other instruments that may be required to effect
the dissolution and termination of the Platform and the cancellation of the
Certificate of Formation of the Platform;
(e) this Agreement, any Separate Series Agreement and any amendment to
this Agreement that the Sponsor is authorized to make in accordance with the
terms of this Agreement and the applicable Separate Series Agreement;
(f) any documents required in connection with brokerage, counterparty,
banking or other accounts of the Platform; and
(g) any other documents which the Sponsor may deem necessary or
advisable for the conduct of the business of the Platform.
This power of attorney is coupled with an interest, and all Members will
collectively rely on the effectiveness hereof. This power of attorney shall be
irrevocable and shall survive the death or disability of a Member and any
Transfer of the whole or any part of the Units held by a Member and shall be
binding upon any Transferee of all or a portion of such Units.
Section 8.11 Voluntary Limitation on a Member's Series Voting Rights.
(a) Each Member's "Voting Rights" shall be preliminarily determined as
equal to the fraction, expressed as a percentage, the numerator of which is
the aggregate balance in the Capital Accounts of the Units held by such Member
as of the beginning of the month of determination and the denominator of which
is the aggregate balances in the Capital Accounts of all Units as of the
beginning of the month of determination.
(b) Voting Rights with respect to different matters shall be determined
solely in accordance with respect to the balances attributable to the affected
Series, in the event that only certain Series are affected.
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(c) In the event that a Member indicates in such Member's Subscription
Agreement or by other written notice to the Sponsor that such Member does not
wish to hold Voting Rights in excess of a specified percentage (which may be
0%) of the aggregate Voting Rights, the Sponsor, by accepting such
Subscription Agreement or other written notice, shall agree to such Member
waiving, in whole or in part, what would otherwise have been such Member's
Voting Rights, and such waiver shall be irrevocable and such Member shall not
exercise any Voting Rights in excess of such specified percentage. The Voting
Rights so waived shall thereupon be deemed to be held by the other Members,
subject to whatever limitation on their Voting Rights they may elect by the
same process, pro rata in accordance with their respective Voting Rights.
(d) A Member may request not only that such Member's Voting Rights be
limited, but that such Member's Voting Rights with respect to each Series in
which such Member participates be equally limited.
Section 8.12 Voluntary Limitation on a Member's Series Percentage.
(a) A Member may, in such Member's Subscription Agreement or by other
written notice to the Sponsor, elect to have the Platform make Distributions
to such Member in an amount so that each of such Member's Series Percentage
shall not exceed, as of the immediately following calendar quarter-end, 24.9%
percent (or any other specified percentage acceptable to the Sponsor) in the
case of any Series. No Redemption charges or gate shall be imposed upon any
such Distributions other than those applied by the Trading Fund from which
such Member is indirectly withdrawing.
(b) Each member acknowledges and agrees that due to the Platform's
limited ability to withdraw from the Trading Funds, the Platform may not be
able to limit Members' Series Percentage, as contemplated by this Section
8.12.
Section 8.13 Further Information and Documents.
Each Member hereby undertakes to furnish to the Sponsor any additional
information that the Sponsor may deem necessary or advisable in order that (a)
the Platform, the Sponsor or any of their respective Affiliates may comply
with Law or (b) the Platform may open and maintain an account or accounts with
securities or commodity brokerage firms. Each Member further undertakes to
execute and deliver such other agreements, documented statements of interest
and holdings, powers of attorney and other instruments as the Sponsor deems
necessary or advisable for the business of the Platform, provided that the
same are not inconsistent with the terms and provisions of this Agreement and
do not increase the liabilities or obligations of such Member beyond that
provided for in this Agreement.
Section 8.14 GOVERNING LAW; DISPUTE RESOLUTION.
(a) THIS AGREEMENT IS MADE PURSUANT TO AND SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE, NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT OR
ANY SUBSCRIPTION AGREEMENT IS EXECUTED BY ANY MEMBER OR PROSPECTIVE MEMBER OR
THE LOCATION OF ANY OFFICE, VENTURE OR OPERATION OF THE PLATFORM OR ANY
MEMBER.
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(b) THE MEMBERS, THE SPONSOR AND THE PLATFORM (THE "PARTIES") HEREBY
AGREE THAT THE PARTIES SHALL SUBMIT ALL CONTROVERSIES ARISING AMONG THEM IN
CONNECTION WITH THE PLATFORM OR ITS BUSINESSES OR 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 AND
UNDERSTAND 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 GENERALLY IS 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.
(v) A PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
(c) CONTROVERSIES SHALL BE DETERMINED BY ARBITRATION BEFORE, AND ONLY
BEFORE, AN ARBITRATION PANEL CONVENED BY THE NEW YORK STOCK EXCHANGE, INC. OR
THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. THE PARTIES MAY ALSO
SELECT ANY OTHER NATIONAL SECURITIES EXCHANGE'S ARBITRATION FORUM UPON WHICH
THE SPONSOR OR THE SELLING AGENT IS LEGALLY REQUIRED TO ARBITRATE THE
CONTROVERSY. SUCH ARBITRATION SHALL BE GOVERNED BY THE RULES OF THE
ORGANIZATION CONVENING THE PANEL. 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 PARTY OR PARTIES AGAINST WHOM SUCH
AWARD IS RENDERED. EACH PARTY AGREES THAT THE DETERMINATION OF THE ARBITRATORS
SHALL BE BINDING AND CONCLUSIVE UPON THEM.
(d) NO PARTY SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST
ANY PARTY 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: (A) THE
CLASS CERTIFICATION IS DENIED; OR (B) THE CLASS IS DECERTIFIED; OR (C) THE
PARTY
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IS EXCLUDED FROM THE CLASS BY 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.
(e) EACH MEMBER HEREBY AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED ON
EACH MEMBER IN THE SAME MANNER AS NOTICES ARE GIVEN PURSUANT TO SECTION 8.2.
Section 8.15 Matters Not Provided For; Compliance with Law.
(a) The Sponsor shall be empowered to decide any question arising with
respect to the Platform or this Agreement, and to make such provisions as the
Sponsor deems to be in, or not opposed to, the interests of the Platform, but
which are not specifically set forth herein.
(b) In addition to the authority granted the Sponsor pursuant to Section
8.15(a), the Sponsor may, but shall have no obligation to, take any action
that the Sponsor deems necessary or advisable to ensure that the Platform is
not in violation of Law or in breach of any contractual provision, including
amending this Agreement. The Sponsor shall not, however, be liable or
responsible for any such violation or breach, provided that the Sponsor's
conduct with respect to such violation or breach is consistent with the
standard set forth in Section 2.6.
(c) To the extent permissible by Law, in the case of any inconsistency
between this Agreement and the Act, the provisions of this Agreement shall
control.
Section 8.16 Severability.
In the event that any provision of this Agreement is held to be invalid
or unenforceable in any jurisdiction, such provision shall be deemed modified
to the minimum extent necessary so that such provision, as so modified, shall
no longer be held to be invalid or unenforceable. Any such modification,
invalidity or unenforceability shall be strictly limited both to such
provision and to such jurisdiction, and in each case to no other. Furthermore,
in the event of any such modification, invalidity or unenforceability, this
Agreement shall be interpreted so as to achieve the intent expressed herein to
the greatest extent possible in the jurisdiction in question and otherwise as
set forth herein.
Section 8.17 Indirect Action.
(a) It is of the essence to this Agreement that no Member nor the
Sponsor be permitted to do indirectly -- by the use of Affiliates, agents,
agreements, contracts, reciprocal business dealings or any other means -- that
which this Agreement provides that such Member or the Sponsor not do directly.
Furthermore, it is the express intent of all Members and the Sponsor that all
Members and the Sponsor shall comply in all respects with the substantive
purposes of this Agreement and that technical compliance shall constitute a
breach hereof to the extent that it contravenes or does not fully achieve such
substantive purposes.
(b) The prohibition on indirect action in Section 8.17(a) shall in no
respect be deemed to be violated by the Sponsor causing the Platform to pay
the expenses of the type enumerated in Article VI.
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Section 8.18 Survival.
Those agreements and undertakings set forth herein which by their terms
contemplate that they shall survive the withdrawal of a Member or the
termination of the Platform shall do so.
Section 8.19 Confidentiality; Tax Confidentiality.
(a) Each Member acknowledges that the business and assets of the
Platform and the Sponsor Parties are confidential and involve a wide range of
proprietary information, including trade secrets and financial or commercial
information, and that disclosure of any such information may cause competitive
harm to the Platform and/or the Sponsor Parties.
(b) All information with respect to such business and assets shall be
presumed confidential and proprietary unless the Sponsor otherwise so
indicates in writing. Each Member covenants that, except with the prior
written consent of the Sponsor, it has and it shall at all times keep
confidential and not, directly or indirectly, disclose, divulge, furnish or
make accessible to anyone, or use in any manner that would be adverse to the
interests of the Platform or any Sponsor Party, any confidential or
proprietary information to which such Member has been or shall become privy
relating to the business or assets of the Platform or of any of the Sponsor
Parties, except with the written approval of the Sponsor or except for
information that is otherwise publicly available (other than information made
publicly available by a Member relying on this exemption in disclosing such
information) or as required to be disclosed by Law; provided, that before any
disclosure of information otherwise subject to this Section 8.19(b) on the
grounds that such information has otherwise become public or is required by
Law, the Member proposing to make such disclosure shall so inform the Sponsor
and shall give the Sponsor, to the greatest extent reasonably practicable, an
opportunity to contest whether such information has in fact otherwise been
made public or is required by Law to be disclosed. Such Member shall only
disclose such information if, and to the extent that, such disclosure is
affirmatively determined to be permitted on the basis of such information
otherwise having been made public or the disclosure being required by Law. A
Member may, however, share such information with such Member's investment
advisers, beneficial owners, accountants, attorneys, and spouses ("Permitted
Confidants"); provided, that such Member's Permitted Confidants undertake to
hold such information strictly confidential to the same extent set forth
herein, and not in any manner or respect to use any of such information for
their personal gain; and provided further, that each Member accepts full
liability for any unauthorized use or disclosure of such information by such
Member's Permitted Confidants.
(c) Without limiting the generality of the foregoing, confidential and
proprietary information shall include: (i) any confidential information
regarding any Trading Fund or Trading Advisor or the Sponsor; (ii) any
information regarding a Member; (iii) the performance record of the Platform
and any other financial results or data of the Platform; and (iv) any
communication from any Sponsor Party or any of its representatives or
Affiliates. For the avoidance of doubt, no Member (other than the Sponsor, if
applicable) may provide information concerning the Platform to any party that
it has reason to believe shall disseminate such information in any form.
-38-
(d) Notwithstanding any other provision of this Agreement, the Sponsor
may keep confidential from the Members any information (i) the Sponsor
reasonably believes to be in the nature of trade secrets; (ii) the disclosure
of which the Sponsor reasonably believes is not in the best interest of the
Platform or could damage the Platform or its business; or (iii) which the
Platform is required by Law or agreement to keep confidential; provided that
the fact that the Sponsor has disclosed certain information shall not imply
that such information does not constitute information described in clauses
(i)-(iii) above.
(e) Each Member agrees that the Platform, the affected Series and the
Sponsor would be subject to potentially irreparable injury as a result of any
breach by such Member of the covenants and agreements set forth in this
Section 8.19, and that monetary damages would not be sufficient to compensate
or make whole either the Platform, the affected Series or the Sponsor for any
such breach. Accordingly, each Member agrees that the Platform, the affected
Series and the Sponsor, separately or together, shall be entitled to equitable
and injunctive relief, on an emergency, temporary, preliminary and/or
permanent basis, to prevent any such breach or the continuation thereof.
Section 8.20 No Waiver of Federal or State Securities Law Claims.
None of the various exculpatory or indemnification provisions of hereof
are to be interpreted as in any respect resulting in a Member waiving any
rights or claims which such Member may have under any federal or state
securities laws.
Section 8.21 Investment in Accordance with Law.
Each Member that is, or is investing assets on behalf of, an "employee
benefit plan," as defined in, and subject to the fiduciary responsibility
provisions of, ERISA, or a "plan," as defined in and subject to Section 4975
of the Code (each such employee benefit plan and plan, a "Plan"), and each
fiduciary thereof who has caused the Plan to become a Member (a "Plan
Fiduciary"), represents and warrants that (a) the Plan Fiduciary has
considered an investment in the Platform for such Plan in light of the risks
relating thereto; (b) the Plan Fiduciary has determined that, in view of such
considerations, the investment in the Platform for such Plan is consistent
with the Plan Fiduciary's responsibilities under ERISA; (c) the investment in
the Platform by the Plan does not violate and is not otherwise inconsistent
with the terms of any legal document constituting the Plan or any trust
agreement thereunder; (d) the Plan's investment in the Platform has been duly
authorized and approved by all necessary parties; (e) none of the Sponsor, any
Trading Advisor of a Series in which the Plan is investing, UBS AG, the
Administrator, the Clearing Broker, UBS FS, any individual UBS brokers who
facilitated the Plan's investment in the Platform (each, a "Financial
Advisor"), UBS International Inc., any other Selling Agent, any of their
respective affiliates or any of their respective agents or employees: (i) has
investment discretion with respect to the investment of assets of the Plan
used to purchase Units; (ii) has authority or responsibility to or regularly
gives investment advice with respect to the assets of the Plan used to
purchase Units for a fee and pursuant to an agreement or understanding that
such advice will serve as a primary basis for investment decisions with
respect to the Plan and that such advice will be based on the particular
investment needs of the Plan; or (iii) is an employer maintaining or
contributing to the Plan; and (f) the Plan Fiduciary (i) is authorized to
make, and is responsible for, the decision for the Plan to invest in the
Platform,
-39-
including the determination that such investment is consistent with the
requirement imposed by Section 404 of ERISA that Plan investments be
diversified so as to minimize the risks of large losses; (ii) is independent
of the Sponsor, each Trading Advisor of each Series in which the Plan is
investing, UBS AG, the Administrator, the Clearing Broker, UBS FS, each
Financial Advisor, UBS International Inc., each other Selling Agent, and each
of their respective affiliates, and (iii) is qualified to make such investment
decision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SPONSOR
UBS MANAGED FUND SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Counsel
THE MEMBERS
By: UBS Managed Fund Services Inc.
Attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Counsel
-40-
EXHIBIT A
SEPARATE SERIES AGREEMENT
THIS SEPARATE SERIES AGREEMENT, dated as of ______, 200_ (this
"Series Agreement"), is entered into by and between the undersigned.
Capitalized terms used herein and not otherwise defined are used as defined in
the Limited Liability Company Agreement of UBS Managed Futures LLC dated as of
October 26, 2006 (as amended from time to time, the "Master Agreement").
RECITALS
WHEREAS, UBS Managed Futures LLC (the "Platform") was heretofore
formed as a Delaware limited liability company pursuant to and is governed by
the Delaware Limited Liability Company Act, 6 Del. C. ss. 18-101, et seq., as
amended from time to time (the "Act") and the Master Agreement;
WHEREAS, the Platform hereby desires to establish and designate a
new Series (the "New Series"); and
WHEREAS, it is intended by the parties hereto that the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the New Series be enforceable only against the assets
of the New Series, and not against the assets of the Platform generally or any
other Series, and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Platform
generally shall be enforceable against the assets of the New Series.
NOW THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. CREATION OF SERIES.
1. New Series.
In accordance with the Master Agreement, the Platform hereby
establishes and designates the New Series, which shall be a "Series" for
purposes of the Master Agreement. For all purposes of the Act, this Series
Agreement, together with each other Separate Series Agreement and the Master
Agreement constitute the "limited liability company agreement" of the Platform
within the meaning of the Act. The terms and provisions of this Series
Agreement may have the effect of altering, supplementing or amending the terms
and provisions of the Master Agreement with respect to the New Series.
2. Name of New Series.
The name of the New Series created by this Series Agreement shall
be UBS Managed Futures LLC (______ Series).
Exh.-1
3. Trading Fund.
The New Series will invest substantially all of its capital in
[Trading Fund] (the "Trading Fund"). Notwithstanding anything in the Master
Agreement to the contrary, but subject to Section 2.1 of the Master Agreement,
the Sponsor, on behalf of the Platform on behalf of the New Series, is hereby
authorized and instructed to execute and deliver the Subscription Agreement
for the Platform and any and all other documents, agreements or certificates
contemplated by, or related to, the New Series' investments in the Trading
Fund.
4. For federal income tax purposes, the New Series intends that it will
be treated as separate business entity and shall be treated as a separate
partnership. The Sponsor shall make entity classification elections as under
the applicable Treasury Regulations, as necessary, for the New Series to be
treated as a separate partnership.
II. MISCELLANEOUS PROVISIONS.
1. Incorporation by Reference.
"Article VIII -- Miscellaneous" of the Master Agreement is hereby
incorporated by reference into this Series Agreement, and shall apply to this
Series Agreement, mutatis mutandis, as if set forth in full herein.
2. Execution of Additional Instruments.
Each party hereto hereby agrees to execute such other and further
statements of interests and holdings, designations and other instruments
necessary to comply with applicable Law, as determined by the Sponsor in its
discretion.
3. Counterparts.
This Series Agreement may be executed in counterparts with the
same effect as if the parties had all executed the same copy. Facsimiles,
digital image files or any other electronic format of executed documents
shall, for all purposes of this Series Agreement, have the same force and
effect as executed originals.
[The remainder of this page is intentionally left blank.]
Exh.-2
IN WITNESS WHEREOF, the parties hereto have executed this Separate
Series Agreement as of the date first above written.
SPONSOR
UBS MANAGED FUND SERVICES INC.
By:
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By:
-------------------------------------------
Name:
Title:
THE MEMBERS
By: UBS Managed Fund Services Inc.
Attorney-in-fact
By:
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By:
-------------------------------------------
Name:
Title:
Exh.-3