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9780314909534

Hedge Fund Agreements Line by Line, 2nd Edition: A Users Guide to LLC Operating Contracts

by
  • ISBN13:

    9780314909534

  • ISBN10:

    0314909532

  • Edition: 2nd
  • Format: Paperback
  • Copyright: 2009-09-01
  • Publisher: Thomson West

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Summary

In the original Hedge Fund Agreements Line by Line, author Gregory J. Nowak took a standard operating agreement, broke it down step by step, and explained all parts of the venturefrom forming a company to liquidating assets and dissolving the partnership. This second edition is all new, re-written to deal with issues facing hedge funds in the current market environment, and takes into account the lessons learned from the market meltdown of 2008 to early 2009. It has an expanded valuation section that addresses FAS 157 and 157-4 issues, and a robust Designated Asset system that deals with side pockets and special assets in Master Feeder and single-strategy structures. The author has included a running commentary on the Model Operating Agreement of the ABC Fund, LLC, with a practitioners insights on why certain provisions are drafted the way they are. An indispensable tool for any hedge fund manager, this book offers a swift yet informative read on all legal aspects of forming and operating this investment vehicle.

Author Biography

Gregory J. Nowak, Esq. is a partner in the commercial practice of Pepper Hamilton LLP. Concentrating on matters arising under corporate law and the federal securities laws-in particular, the Investment Company Act of 1940 and the Investment Advisers Act of 1940-his practice includes providing advice to hedge funds, mutual funds, funds of funds, and hybrid private equity funds, as well as the formation, ongoing operation, merger, and liquidation of such entities. He also counsels clients on mergers and acquisitions, SEC, FINRA and CFTC regulatory matters, and matters concerning the formation and operation of broker dealers. A graduate of the Cornell Law School (JD 1984), LaSalle University (BA in Economics 1981), and New York University (LL.M. in Taxation 1988), he lives in Whitemarsh Township, Pennsylvania with his wife and four children.

Table of Contents

Forewardp. 11
Acknowledgementsp. 13
Line-By-Line Analysisp. 15
Definitionsp. 17
Definitionsp. 17
Organizationp. 36
Formationp. 36
Namep. 37
Principle Place of Business and Registered Office and Agentp. 37
Qualification in Other Jurisdictionsp. 37
Termp. 38
Purposep. 38
Membersp. 40
Names and Addressp. 40
Limitation of Liabilityp. 40
Membership Interestsp. 40
Withdrawalsp. 41
Withdrawal by Membersp. 41
Cumpulsory Withdrawalp. 48
Consequences upon Withdrawalp. 48
Adjustment of Capital Accountsp. 50
Distribution upon Withdrawalp. 52
Member Managerp. 62
Costs of Withdrawalp. 64
Limitations on Withdrawalp. 64
Withdrawals Coinciding with the Dissolution of the Companyp. 64
Suspension of Withdrawalsp. 65
Managementp. 68
Managementp. 68
Other Business Interests of the Member Managerp. 75
Binding Authorityp. 77
Management Feep. 77
Fees and Expensesp. 80
Agents and Consultantsp. 84
Concurrent Statusp. 84
Indemnificationp. 85
Exculpationp. 86
The Investment Managerp. 87
Assetsp. 88
Limitations on Powers of the Member Managerp. 89
Additional Rights of the Member Managerp. 90
Soft Dollar Arrangementsp. 92
Good Faith Time and Attention of the Member Managerp. 96
Termination and Replacement of Member Managerp. 97
Advisers Act Assignmentp. 98
Capital Contributionsp. 99
Initial Capital Contributionsp. 99
Additional Contributions by the Member Managerp. 100
Additional Contributions by the Membersp. 100
Determination of Capitalp. 101
Form of Contributionp. 101
No Additional Contributionsp. 101
Use of Capitalp. 102
No Right to Specific Propertyp. 102
No Return of Capital Contributions or Interestp. 102
Grace Period for Contributionsp. 102
Advancesp. 102
Allocations Of Gains and Losses; Distributionsp. 103
Members' Accountsp. 103
Allocation of Net Profits and Net Losses; Performance Allocationp. 105
Tax Allocationsp. 121
Special Allocationsp. 122
Curative Allocationsp. 127
Other Allocation Rulesp. 128
Safe Harbor Election and Forfeiture Allocationsp. 129
Distributionsp. 131
Limitations on Distributions and Withdrawal Paymentsp. 133
Member Manager Tax Distributionsp. 134
Interest on and Return of Capital Contributionsp. 136
Taxesp. 136
Electionsp. 136
Tax Matters Partnerp. 137
Tax Liabilityp. 137
Witholding Taxp. 138
Amendments for Tax Purposesp. 138
Prohibited Actionsp. 138
Transferabilityp. 139
Member Transfersp. 139
Transferee Not a Member: Substituted Membersp. 141
Transfer of the Manger's Interestp. 142
Transferee's Agreement to be Boundp. 142
Opinions; Expenses; Other Conditionsp. 142
Transferee's Capital Accountp. 143
Admission Of New Membersp. 143
Issuance of Membership Interests; Admission of New Membersp. 143
Dissolutionp. 148
Dissolutionp. 148
Winding Upp. 151
Distributions upon Dissolutionp. 151
Nonrecourse to Other Membersp. 153
Distributions in Cash or in Kindp. 153
Certain Agreements to Continuep. 155
Use of Company Name After Winding Upp. 155
Terminationp. 155
Valuation Of Securities and Other Company Assetsp. 156
Net Asset Valuep. 156
Fair Valuep. 158
Special Assets and the Use of Side Pocketsp. 167
No Liabilityp. 171
Investment Manager's Determination in Bindingp. 171
NAV Expressed in Dollarsp. 171
Suspensionp. 171
General Provisionsp. 172
Notices and Consentsp. 172
Entire Agreementp. 173
Amendments; Other Actions of Member Managerp. 174
Reports to Membersp. 176
Proprietary Informationp. 177
Arbitrationp. 177
Special Powers of Attorneyp. 180
Insurancep. 182
Benefit Plansp. 183
Information Regarding Members and Accountsp. 184
Headingsp. 185
Waiverp. 185
Severabilityp. 186
Bindingp. 186
Counterpartsp. 186
Governing Lawp. 186
p. 189
About The Authorp. 199
Table of Contents provided by Ingram. All Rights Reserved.

Supplemental Materials

What is included with this book?

The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.

The Used, Rental and eBook copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.

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