Terms & Conditions

Terms

Conditions

Our firm is the epitome of security and reliability, having met all regulatory requirements. Invest with confidence at Sway Capital Group.

1- Introduction: a. By signing, the member is immediately bound by the terms and conditions of this agreement.; b. This agreement shall commence upon payment of the membership fee and shall continue for the duration of the term.
2- Member Benefits: a) From the date referred to in schedule 1, SCG shall provide the member with the agreed benefits.; b) SCG shall provide the services referred to in clause 2(a) with all due care and skill.; c) Subject to clause 2 (b), SCG takes no responsibility and shall not be liable to a member for any information, advice, goods or services or benefits provided by an employee or contractor of SCG.; d) The member acknowledges that the benefits referred to in clause 2(a) are preparatory in nature and therefore do not guarantee the results or outcomes.; e) The member further acknowledges that SCG is itself a client of a boutique multi asset hedge fund under the agreement listed in Appendix 1 below.
3- Payments: a) The member shall make payment of the one-off membership fee as prescribed inthe Member Agreement, in accordance with this clause 1.; b) The member shall receive payment from SCG on a daily basis into their wallet in the CRM as just one of the member benefits.
4- Membership Term: a) The membership term is 12months.; b) The membership automatically renews unless the member requests to cease theirmembership within 30days of the end of the term.
5- Membership Re-Sale: a) A member can elect to on-sell their membership to a new incoming member atany point within the term if they choose.
6- Confidentiality and Intellectual Property: a) Both SCG and the member will during and after the period of membership keep confidential and not use or disclose to any third party any information provided by either party in performance or receipt of the services referred to in clause 2, including, without limitation, each other’sbusiness affairs, systems, ideas, business and marketing strategies and member information and any information disclosed("Confidential Information").; b) Each party may disclose Confidential Information to its representatives whohave a need to know such information provided such third parties are bound by confidentiality obligations to each party of the same or similar standard to these terms and conditions.; c) Each party may refer to the other party and use each other's logos to represent the fact of membership of the member with SCG.
7- Privacy: a) SCG acknowledges the importance of maintaining the confidentiality of the members and their personal information. It will collect personal information necessary to be able to provide the services referred to in clause 2 including disclosing such information to members.; b) The member’s contact details may be used from time to time to advise the member of other services promoted by SCG. If the member does not consent to such use the member must advise the SCG in writing. If the member is not advised in this regard the SCG will assume that the member consents to the use of its contact details for these purposes.; c) SCG shall at all times comply with the Privacy Act (2001) as amended from time to time.; d) The member acknowledges that other members personal information obtained by the member as a consequence of the services shall be treated in accordance with this clause as if the Member were SCG
8- Limitation of Liability: To the extent permitted by law, SCG's liability to the member under this agreement will be limited to the costs of re-supplying the services referred to in clause 2. In no case will SCG be liable for any consequential loss or damage suffered by the member arising from the member's receipt of the services or otherwise from this agreement even if the member or its authorised representative is aware or has been advised of the possibility of consequential loss or damage flowing from, but not limited to, any errors, faults, omissions or other inaccuracies of the services. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
9- Governing law: This Agreement will be governed by and be construed in accordance with the laws of Saint Vincent & Grenadines, and the parties agree to submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
Appendix 1: Sway Capital Group Pty Ltd LLC Agreement with Viseroij Investment Fund LLC: VISEROIJ INVESTMENT FUND LLC; CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM AND DISCLOSURE DOCUMENT; LIMITED LIABILITY COMPANY INTERESTS; This Confidential Private Placement Memorandum (this “Memorandum”) is submitted to the person named above on a confidential basis solely in connection with the consideration of an investment in limited liability company interests in Viseroij Investment Fund LLC, a Delaware limited liability company. Due to the confidential nature of this Memorandum, it may not be used for any other purpose, or reproduced in whole or in part, and it may not be delivered to any person (other than the recipient’s legal, tax and financial advisors) without the prior written consent of the Managing Member (as defined below).; The limited liability company interests offered hereby have not been registered or qualified with the Securities and Exchange Commission (the “SEC”) or with any state securities commission or any other regulatory authority. The interests are being offered and sold in reliance upon an exemption from the registration requirements of Federal and state securities laws and cannot be resold unless they are subsequently registered under such laws or unless an exemption from registration is available. Neither the SEC nor any other agency has passed upon, recommended or endorsed the merits of this offering or the accuracy or adequacy of this Memorandum. Any representation to the contrary is unlawful.
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH POOLS WHOSE PARTICIPANTS ARE LIMITED TO QUALIFIED ELIGIBLE PERSONS, AN OFFERING MEMORANDUM FOR THIS POOL IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A POOL OR UPON THE ADEQUACY OR ACCURACY OF AN OFFERING MEMORANDUM. CONSEQUENTLY, THE COMMODITY FUTURES TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS OFFERING OR ANY OFFERING MEMORANDUM FOR THIS POOL.
: VISEROIJ CAPITAL MANAGEMENT LLC; Managing Member; 64 Club Rd; Riverside, CT 06878; (203) 274-111
VISEROIJ INVESTMENT FUND LLC
INTRODUCTION: Viseroij Investment Fund LLC (the “Company”) was organized as a Delaware limited liability company in March 2019. Viseroij Capital Management LLC, a Delaware limited liability company (the “Managing Member”) organized in January 2019, serves as the Company’s managing member and commodity pool operator. The offices of the Company are located at the offices of the Managing Member, 64 Club Rd, Riverside, CT 06878.; The Company’s primary objective is to achieve capital growth through the speculative trading of Financial Instruments (as defined below under “Investment Objective”). The Company pursues its objective by trading its capital according to the Managing Member’s proprietary trading strategy. The assets of the Company will be primarily invested in futures contracts traded on regulated futures exchanges in the United States and off-exchange retail forex contracts. The Managing Member anticipates trading in approximately 60 different futures contracts and 70 currency pairs, but the Company may invest in any liquid futures or option contract or currency pair that is available for trading. Underlying market sectors may include, but not be limited to, equity indices, both developed and emerging market, bonds, agricultural commodities, energy, precious and base metals, and currencies. The Company will also invest in equity securities of U.S. companies listed for trading on U.S. exchanges.; The Company offers eligible investors the advantage of participating in a program with limited liability that is uncorrelated to traditional investments. That is, the liability of investors in the Company for the losses, debts, liabilities and obligations of the Company is generally limited to the amount of their investment in the Company plus any undistributed net profits, if any.; The Company commenced operations in June 2020. The Company is offering its limited liability company interests (“Interests”) on a continuous basis. No interest will be paid on subscriptions.; Interests are offered on an ongoing basis as of the opening of business on the first business day of each month, in the sole discretion of the Managing Member. Interests are offered on a private basis pursuant to Section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”), and Regulation D thereunder.; Prospective investors will receive, in addition to this Confidential Private Placement Memorandum, the Company’s most recent annual audited financial statements, and Company performance information, updated on a monthly basis, as each of those items becomes available.; The Company is a speculative investment that involves significant risks due to, among other things, the nature of the Company’s investments and investment strategy, the lack of a public market for the Interests, and the restrictions on redemptions. An investor should not invest in the Company unless it is fully able to sustain the loss of all or a significant part of its investment and realized or unrealized profits.
SUMMARY: The following is a summary of this Confidential Private Placement Memorandum and Disclosure Document (this “Memorandum”). This summary should be read in conjunction with, and is qualified in its entirety by, the information appearing elsewhere in this Memorandum and the provisions of the Viseroij Investment Fund LLC Limited Liability Company Operating Agreement (the “LLC Agreement”), attached hereto as Exhibit A. Terms which are used but not defined in this Memorandum shall have the meaning ascribed thereto in the LLC Agreement.; The Company; The Company and its Managing Member; Viseroij Investment Fund LLC, a Delaware limited liability company (the “Company”), was organized in January, 2019.; Viseroij Capital Management LLC, a Delaware limited liability company organized in January 2019, serves as the Company’s Managing Member and commodity pool operator.; Interests Offered/Classes of Interests; The Company is hereby offering its limited liability company Interests on a private placement basis to investors who satisfy the suitability standards below. The Company is offering Class A Interests which are denominated in US Dollars. The Company is also offering Class B Interests which are denominated in Australian Dollars. The Company reserves the right to offer additional share classes denominated in other currencies. The Company also issues non-voting, redeemable, participating limited liability company interests in the Company designated as special allocation Interests (the “Allocation Interests”) to the Managing Member as described below under "Fees and Expenses."; Investment Objective and Strategy; The Company's primary objective is to achieve capital growth through the speculative trading of Financial Instruments. The Managing Member pursues the Company’s primary objective by trading its capital according to the Managing Member's proprietary trading strategy.; Offices; The offices of the Company and the Managing Member are located at 64 Club Rd, Riverside, CT 06878. Telephone: (203) 274-1118.; The Offering; The Company is offering Interests for subscription on an ongoing basis on the first business day of each month. Accepted subscribers will be admitted to the Company as members (the “Members”). The Managing Member may decline to accept a subscription by any person for any reason in its sole discretion.; Eligible Investors; he offering of Interests is designed for sophisticated investors who are knowledgeable and experienced in financial and business matters such that they are capable of evaluating the merits and risks of investing in managed futures commodity pools and the Company.; All investors must represent and warrant in the Subscription Documents that they have read this Memorandum, and that they can afford the loss of their entire investment. Furthermore, generally investors must also represent and warrant that they are “accredited investors” within the meaning of Regulation D under the Securities Act and “qualified eligible persons” within the meaning of Commodity Futures Trading Commission (“CFTC”) Regulation 4.7. The foregoing terms are defined in the Subscription Documents.; Further, the Company will not issue Interests to any person if it determines that doing so could adversely impact the tax or legal status of the Company.; Subscription Procedure; In order to purchase an Interest, a subscriber must (i) complete, execute and deliver to the Managing Member the subscription documents attached hereto as Exhibit B (the “Subscription Documents”), and (ii) pay the full amount of the subscription by arranging for a wire transfer in accordance with the instructions set forth in the Subscription Documents, or by other means of payment acceptable to the Managing Member. If the Managing Member determines, in its sole discretion, that any prospective Member will not be accepted, then all monies paid by that prospective Member will be promptly returned without interest. In lieu of clause (i) above, existing Members adding to their investment and whose original Subscription Documents' information has not changed may complete and sign the “Additional Subscription Request Form” (attached to the Subscription Documents) and deliver the Form to the Managing Member.; The Managing Member may waive or amend any of the foregoing requirements and restrictions with respect to any Member without entitling any other Member to the same or a similar waiver or amendment, and shall not be required to obtain the consent or approval of, or give notice to, any Member in connection therewith.; Redemption Procedure; In order to redeem all or any portion of an Interest, an investor must complete, execute and deliver to the Managing Member such redemption documents as are reasonably required by the Managing Member at least ten (10) days prior to the requested withdrawal date in accordance with the instructions set forth under “Redemptions, Assignments and Distributions” below. Unless otherwise approved by the Managing Member, withdrawals shall be effective upon the conclusion of the last business day of any calendar month. The Company will endeavor to distribute the redemption proceeds within thirty (30) days following the relevant withdrawal date, provided that the Managing Member may, in its sole discretion, withhold up to five percent (5%) of the Withdrawal Price, which withheld amount will be payable as soon as practicable following the completion of the Company’s annual audit with respect to the fiscal year in which the applicable Withdrawal Date occurs, subject to any necessary adjustments to the Withdrawal Price based on such audit.; The Managing Member may suspend, delay or limit redemptions under certain circumstances deemed extraordinary in the Managing Member’s discretion including without limitation such circumstances detailed under "Redemptions, Assignments and Distributions" below.; At any time, the Managing Member may, in its sole discretion, require any Member to withdraw all or a portion of his, her or its Interests for any reason or no reason upon written notice to the Member.; Limited Liability; The liability of each investor for the losses, debts, liabilities and obligations of the Company is limited in accordance with the Delaware Limited Liability Company Act. Subject to the provisions of the Delaware Limited Liability Company Act, the Members are liable for the repayment and discharge of the debts and obligations of the Company only to the extent of their respective capital accounts and do not otherwise have any liability in respect of the debts and obligations of the Company or any obligation to make additional capital contributions to the Company (subject to a Member’s obligation, as required by law, under certain circumstances to return to the Company distributions and returns of contributions).; Plan of Distribution; The Company is offering its limited liability company Interests on a continuous basis as of the opening of business on the first business day of each month, in the sole discretion of the Managing Member. The Interests are offered on a private basis pursuant to Section 4(a)(2) of the Securities Act and Regulation D thereunder. Interests are available to qualified investors, subject to the conditions and restrictions described herein and the Company’s LLC Agreement and Subscription Documents, copies of which accompany this Memorandum. Interests are offered only to persons with sufficient financial experience and knowledge to evaluate the risks and merits of an investment in the Company.; Reports; The Managing Member will provide investors with monthly statements of account, an annual report containing financial statements certified by an independent public accountant and certain federal tax income information.; Fiscal Year End; December 31; Legal Counsel; Funkhouser Vegosen Liebman & Dunn Ltd. serves as counsel to the Managing Member. Funkhouser Vegosen Liebman & Dunn Ltd. does not represent the Company or its investors or potential investors.; Certain Risks; Interests in the Company are speculative and involve a high degree of risk. An investor in the Company may lose all or a substantial amount of its investment. See “Principal Risk Factors” and “Conflicts of Interest” for a more detailed description of the risks involved with an investment in the Company.
THE MANAGING MEMBER: Viseroij Capital Management LLC is the Managing Member and commodity pool operator of the Company. The Managing Member is a Delaware limited liability company formed in January 2019 with a principal office located at 64 Club Rd, Riverside, CT 06878. The Company’s books and records are maintained by the Managing Member at this location. The Managing Member became registered with the CFTC as a commodity pool operator and commodity trading advisor in May 2019 and became a member of the National Futures Association (“NFA”) at that time.; Pursuant to the Company’s LLC Agreement, the Managing Member has the sole authority and responsibility for managing the Company and for directing the investment and reinvestment of its assets.; The principals of the Managing Member actively participating in the operation of the Company are Michael Annerl, Jerome Cohen and Adrian Bozdog. In addition, Annerl Investment Trust and Alpha Trading Investment S.R.L. are designated as principals of the Managing Member because they are entitled to an interest in the profits of the Managing Member. Principals of the Managing Member may, but are not required to, purchase Interests. The backgrounds of the principals of the Managing Member are set forth below. The Managing Member, its principals, controlling persons and affiliates may redeem their Interests on the same terms as and without notice to the investors.; Jerome G. Cohen; Jerome G. Cohen is a managing member and Co-Portfolio Manager of the Managing Member. He and Mr. Annerl will direct the trading strategy for the Company. Mr. Cohen became registered with the CFTC as an Associated Person of Viseroij Capital Management LLC in May 2019, and he became an NFA Associate Member at that time. Mr. Cohen began his career at ABN AMRO Bank, where he was employed from 1993 to 2007 in a series of increasingly senior positions. Prior to his departure, he served as Executive Director, Global Head FX Options/FX Exotics, where he was responsible for managing a global team of traders located in Tokyo, Singapore, London and Chicago. In September 2007, Mr. Cohen left ABN AMRO Bank and became a managing director of Standard Chartered Bank in Singapore. He was the Global Head of FX Structured Products Trading until September 2011, when he was named Managing Director, Head Structured Products Trading West, in the New York office. He left Standard Chartered Bank in September 2012. From November 2012 to the present, Mr. Cohen has been the managing member of Greenwich Dairy Risk Management LLC, where he trades dairy options and futures for his own account. Mr. Cohen holds a Master of Science Degree in Business Econometrics from Erasmus University Rotterdam, The Netherlands. He is a Dutch citizen and a permanent resident of the United States.; Michael Annerl; Michael Annerl is a managing member and Co-Portfolio Manager of the Managing Member. Mr. Annerl became registered with the CFTC as an Associated Person of Viseroij Capital Management LLC in May 2019, and he became an NFA Associate Member at that time. Mr. Annerl, an Australian citizen who resides in Buderim, Queensland, Australia, is also registered as a branch office manager of the Managing Member. From August 1997 to September 2005, Mr. Annerl was employed by various major banks, including Citibank, Commonwealth Bank of Australia, and ABN AMRO Bank, as a currency options trader. From September 2005 to March 2008, Mr. Annerl was Executive Director - Commodity Structuring for JP Morgan in Singapore. From March 2008 to December 2010, he was Executive Director - Commodity Structuring & Sales for Goldman Sachs in Singapore. Mr. Annerl was Director of Oil Trading for Citibank Singapore from January 2011 to March 2014. In that capacity he developed and traded a commodities & FX trading algorithmic model. From April 2015 to September 2016, Mr. Annerl was the Chief Executive Officer of Sondrio Capital, a trading company he founded, which traded proprietary computer algorithms across over 60 futures markets and over 70 currency pairs. From January 2017 to December 2018, he was Co-CEO of Limnah Capital, a private fund, where he worked to further develop the models and algorithms he previously developed at Sondrio Capital in addition to new model development. Mr. Annerl holds a Bachelor of Economics (Honours) from La Trobe University and a Master of Commerce from The University of Melbourne.; Adrian Bozdog; Adrian Bozdog is a managing member of the Managing Member. He is the Managing Member’s Head of Technology and Information Technology. He will also provide systematic modeling and implementation for the Company, as well as trading and risk management services. Mr. Bozdog became registered with the CFTC as an Associated Person of Viseroij Capital Management LLC in July 2019, and he became an NFA Associate Member at that time. Mr. Bozdog is also registered as a branch office manager of the Managing Member. He is a Romanian citizen who resides in Singapore. Mr. Bozdog holds a PhD in Computer Science from Cornell University in Ithaca, New York. Prior to earning his PhD in 2004, he earned a Master of Science in Computer Science, and a Minor in Finance with a focus on financial derivative securities from Cornell. He also holds a BSc in Computer Science from Politehnica University of Bucharest, Romania. From July 2011 to June 2019, Mr. Bozdog has been employed by Citibank in Singapore in the Quantitative Research, Commodities group. He became a Director in January 2013. He was responsible for leading the Asian quantitative group which supports Citibank’s local commodities business. He also worked on building out systematic trading algorithms on commodities and FX. From August 2004 to June 2011, Mr. Bozdog worked for JP Morgan Chase in various quantitative research capacities. He became a Vice President in March 2006. Mr. Bozdog has sat and passed the NFA Series 3, 30 and 34 exams. He has also passed Level 1 of the Chartered Financial Analyst (“CFA”) examination.
INVESTMENT OBJECTIVE AND STRATEGY: The Company invests substantially all of its investable assets in Financial Instruments using the Managing Member’s proprietary trading strategy, as described herein. The primary investment policies and trading strategy of the Company are discussed below.; Investment Objective; The Company’s primary objective is to achieve capital growth through the speculative buying, selling, selling short and otherwise acquiring, holding, trading, disposing of, and dealing in (including by the use of margin and other forms of leverage) Financial Instruments. As used in this Memorandum, the term “Financial Instruments” means financial instruments and other rights and interests that may be traded by the Company, including, without limitation, futures contracts and options on futures contracts traded on or subject to the rules of U.S. exchanges or other boards of trade, spot forex, equity securities of U.S. companies listed for trading on U.S. exchanges, and such other instruments or interests as the Managing Member deems appropriate.; Additionally, the Company may maintain assets in cash or deposit accounts or invest in other short-term Financial Instruments to fulfill its margin requirements, meet the expense needs of the Company and/or to fund withdrawals or for such other purposes as may be determined by the Managing Member.; Classes of Interests; The Company is offering Class A Interests which are denominated in US Dollars. The Company is also offering Class B Interests which are denominated in Australian Dollars. Class A and Class B Interests will be traded utilizing the same investment strategies. The Company reserves the right to offer additional share classes denominated in other currencies.; Investment Strategy; The assets of the Company will be primarily invested in futures contracts traded on regulated futures exchanges in the United States, spot forex, and equity securities of U.S. companies listed for trading on U.S. exchanges. The Managing Member will trade using a “Futures and FX Strategy” as well as an “Equity Strategy” as further described below.; A. Futures and FX Strategy; The Managing Member anticipates trading in approximately 60 different futures contracts and 70 currency pairs, but the Company may invest in any liquid futures or option contract or currency pair that is available for trading. Underlying market sectors may include, but not be limited to, agricultural commodities, softs, energy products, currencies, interest rates, stock indices, and precious metals. Assets committed to initial futures margin generally will not exceed 30% of equity, but it is possible that losses on open trades may cause the Company’s margin requirements to exceed this general guideline.; The Managing Member’s Futures and FX Strategy trades two classes of models. The first class of models is a series of systematic momentum models. The second class of systematic models are mean reversion models.; The systematic momentum models trade short term break out levels in strongly trending markets. The model looks for impulse price moves which tend to occur more frequently in strongly trending markets and especially through key breakout levels. The model utilizes stop loss levels on all trades at inception to reduce risk and to improve returns from impulse moves in prices across a large number of liquid markets. Only the most liquid markets are traded to reduce slippage from entering and exiting positions but more importantly to ensure positions can be exited easily without causing financial loss.; The momentum model generates on average between 2500 to 3000 entry trades per year. On average each asset only produces around 20 trades per year. This is due to the strict criteria for defining a strongly trending market and key break out levels in the market.; The systematic mean reversion models aim to pick high probability turning points after the trend has become extended, during range bound markets when short term trends become exhausted, and during pullbacks in strong trending markets. The mean reversion models tend to perform well in range bound markets with low volatility and hence provide strongly de-correlated returns to the momentum models helping to reduce risk during low volatility and range bound environments.; B. Equity Strategy; The Managing Member’s Long / Partial short strategy (“Equity Strategy”) invests in listed U.S. equities publicly traded on U.S. exchanges based on a strategy which is net long 75% of US equities (1.0 Long /0.25 short) with dividends reinvested. This strategy identifies and takes long positions in stocks identified as being relatively underpriced while selling short stocks that are deemed to be overpriced. The Equity Strategy seeks a higher risk adjusted return than the S&P 500 Index by focusing on stock anomalies in volatility and beta observed in equity markets.; The strategy aims to take advantage of strong negative correlation between equity returns and futures and FX momentum returns. By incorporating the Equity Strategy we seek to increase risk adjusted returns that are greater than the risk adjusted returns generated using only FX and futures momentum.; The trading strategies, methods, systems, and money management techniques employed by the Managing Member are proprietary and confidential. The foregoing description is general and is not intended to be complete. In addition, the Managing Member may refine or change the implementation of its strategies without prior notice to or approval by investors. However, clients will be notified in advance of any material changes to the strategies.
PRINCIPAL RISK FACTORS: Prospective investors are expected to be aware of the substantial risks of investing in the Company. Any such investment should be made only after consulting with independent qualified sources of investment, financial, business, legal, regulatory, accounting, and tax advice. Those who are not generally familiar with such risks are not suitable investors and should not consider investing in the Company. Prospective investors should not consider investing more than they can comfortably afford to lose. The Managing Member wishes to emphasize the following particular risk factors relating to a purchase of Interests.; General Risks; Investment Risk. All investments risk the loss of capital. The value of the Company’s total Net Assets should be expected to fluctuate. An investment in the Company involves a high degree of risk, including the risk that an investor’s entire investment may be lost. No assurance can be given that the Company’s investment objective will be achieved. The Company’s investment activities involve the risks associated with investments generally. Such risks include adverse changes in national or international economic conditions, adverse local market conditions, changes in interest rates, exchange rates, corporate tax rates, operating expenses, environmental laws and regulations, and other various governmental rules and fiscal policies, energy prices, changes in the relative popularity of certain industries, dependence on cash flow, as well as acts of God, uninsurable losses, war, terrorism, earthquakes, hurricanes or flood and myriad other factors which are beyond the control of the Company and the Managing Member. Although the Company will attempt to moderate these risks, no assurance can be given that (i) the Company’s investment programs, investment strategies, trading systems and investment decisions will be successful; (ii) the Company will achieve its return expectations; (iii) the Company will achieve any return of capital invested; or (iv) investors will not suffer losses from an investment in the Company.; All investments made by the Company risk the loss of capital. The Company’s results may vary substantially over time.; Importance of Overall Market Conditions. The Company’s performance may be materially impacted by overall market conditions over which the Company has no control.; The Managing Member Expects the Company’s Performance to be Non-Correlated, Not Negatively Correlated, to Stocks and Bonds. The futures trading strategies pursued by the Company have been generally non- correlated to the performance of stocks and bonds. Non-correlation means that there is no statistically valid relationship between the past performance of the Company’s trading strategies on the one hand and stocks or bonds on the other hand. Non-correlation should not be confused with negative correlation, where the performance of two asset classes (or of the Company on the one hand and stocks or bonds on the other) would be opposite each other. Because of this non-correlation, the Company cannot be expected to be automatically profitable during unfavorable periods for the stock or bond markets, or vice versa. If the Company does not perform in a manner non-correlated with the general financial markets or does not perform successfully, investors will not obtain any diversification benefits by investing in the Company and the Company may have no gains to offset an investor’s losses from other investments.; Risk of Losing One’s Entire Investment. An investment in the Company is speculative and it involves a high degree of risk. Investors must be prepared to lose all of the funds that they invest in the Company and must not invest in the Company any funds that they need for their ongoing financial requirements.; Absence of Regulatory Protection. The Company is not registered as an “investment company” under the Investment Company Act of 1940. Accordingly, investors do not have the benefit of the investor protections provided by such legislation. Neither the Managing Member nor the Company is registered as an investment adviser under the Investment Advisers Act of 1940. Accordingly, investors do not have the benefit of the investor protections provided by such legislation. However, the Managing Member is registered with the CFTC as a commodity pool operator and commodity trading advisor under the Commodity Exchange Act.; Legal and Regulatory Risks. Recent legal and regulatory changes, and additional legal and regulatory changes that could occur during the term of the Company, may substantially affect futures markets and such changes may adversely impact the performance of the Company. The regulation of the U.S. and non-U.S. futures markets has undergone substantial change in recent years and such change may continue. Greater regulatory scrutiny may increase the Company’s and the Managing Member’s exposure to potential liabilities. Increased regulatory oversight can also impose administrative burdens on the Company and the Managing Member, including, without limitation, responding to examinations or investigations and implementing new policies and procedures.; With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), there have been extensive rulemaking and regulatory changes that affect private fund managers, the funds that they manage, and the financial industry as a whole. The Dodd-Frank Act, among other things, grants regulatory authorities broad rulemaking authority to implement various provisions of the Dodd-Frank Act. The impact of the Dodd-Frank Act, and of follow-on regulation, is impossible to predict. There can be no assurance that future regulatory actions authorized by the Dodd-Frank Act will not have a material adverse effect on the Company and the Managing Member, significantly reduce the profitability of the Company, or impair the ability of the Company to achieve its investment objectives. The implementation of the Dodd-Frank Act also could adversely affect the Company by increasing transaction and/or regulatory compliance costs.; Substantial Fees and Expenses. The Company is subject to substantial operating expenses payable irrespective of profitability, in addition to the management fees charged to the Company. Routine operating expenses of the Company may include, but are not limited to, organizational and offering expenses, brokerage commissions and fees, regulatory and exchange fees, management, administrative, legal, and internal and external accounting fees. The Company must earn substantial trading profits in addition to its interest income, if any, in order to offset these costs.; Management of Other Accounts. The Managing Member and its principals may trade for their own accounts and for the accounts of their family members. Records of their proprietary trading will not be available to investors. The Managing Member may also manage accounts of other clients. For reasons of confidentiality, records of other clients’ trading will not be available for inspection by investors.; Reliance on Managing Member and Key Persons. The Managing Member serves as the managing member and commodity pool operator of the Company. If the Managing Member were for any reason unable to act in such capacities, then the Company would likely terminate. Moreover, the success of the Managing Member in pursuing the Company’s investment objective is significantly dependent upon the expertise of the principals of the Managing Member. If the principals were for any reason to cease to continue to act for the Managing Member, then the Managing Member’s ability to pursue the Company’s investment objective may be adversely affected.; ERISA Matters. Most U.S. pension and profit sharing plans, individual retirement accounts and other tax advantaged retirement funds are subject to provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), or both, which may be relevant to a decision as to whether such an investor should invest in the Company. There may, for example, be issues as to whether such an investment is “prudent” or whether it results in “prohibited transactions.” Such an investor should consult legal counsel before investing in the Company.; Investors Will Be Taxed on Profits Whether or Not Distributed. Investors will be subject to tax each year in respect of their allocable share of Company income or gains, even though the Managing Member does not currently anticipate making any distributions to investors. The tax liability due in respect of such profits, if any, could be substantial — particularly if the Company achieves its rate of return objectives. Investors must either redeem Interests or use funds from other sources to discharge their tax liabilities in respect of any such profits.; Possibility of Tax Audit. There can be no assurance that the Company’s tax return will not be audited by the Internal Revenue Service (“IRS”) or that adjustments to the return will not be made as a result of such an audit. If an audit results in an adjustment, then investors may be required to pay additional taxes, interest and possibly penalties. Any deficiency will bear interest based upon prevailing interest rates and may be subject to a penalty. PROSPECTIVE INVESTORS MUST CONSULT THEIR OWN TAX ADVISERS REGARDING THE POSSIBLE TAX CONSEQUENCES OF AN INVESTMENT IN THE COMPANY. THESE CONSEQUENCES MAY BE MATERIAL TO A PARTICULAR INVESTOR’S DECISION AS TO WHETHER TO INVEST IN AN INTEREST, AND NO ATTEMPT IS MADE IN THIS MEMORANDUM TO GIVE ANY TAX ADVICE.; Limited Liquidity of Interests. There is no secondary market for the Interests and none is expected to develop. The Interests cannot be assigned, transferred, pledged or encumbered except on the terms and conditions set forth in the LLC Agreement and with the consent of the Managing Member. Investors may require the Company to redeem some or all of such investor’s Interest, as the case may be, on a monthly basis. Investors should fully recognize that due to the volatile nature of the markets in which the Company trades and invests, the Net Asset Value of Interests when redeemed may vary substantially from their Net Asset Value on the date a redemption request is submitted. In addition, redemptions may be suspended and payment of redemption proceeds may be delayed in certain circumstances.; Market Disruptions; Governmental Intervention. Historically, the global financial markets have experienced pervasive and fundamental disruptions which have led to extensive governmental intervention. Such intervention has in certain cases been implemented on an “emergency” basis, suddenly and substantially eliminating market participants’ ability, at least on a temporary basis, to continue to implement certain strategies or manage the risk of their outstanding positions. In addition, these interventions have been difficult to interpret and unclear in scope and application, resulting in confusion and uncertainty which in itself has been materially detrimental to the efficient functioning of financial markets as well as previously successful investment strategies. In disrupted markets, positions may become illiquid, making it difficult or impossible to close out positions against which the markets are moving. The Company may incur major losses in the event of disrupted markets and other extraordinary events, and such events can result in various trading strategies performing with unprecedented volatility and risk.; Trading Strategy Risk Factors; Trading Strategies. The profitability of the Company’s trading strategies depends upon systematic trading methodologies. No assurance can be given that the trading strategies utilized will be profitable. The best trading method or strategy, whether based on technical and/or fundamental analysis, will not be profitable if there are no price moves or circumstances of the kind the trading method or strategy seeks to identify and follow. Moreover, any factor that would make it more difficult to execute trades at desired prices in accordance with the signals of the trading method or strategy (such as a significant lessening of liquidity in a particular market) would also be detrimental to profitability. Further, other companies may utilize similar analyses and methods in making trading decisions. No assurance can be given that the Company’s strategies will be successful under all or any market conditions.; Commodity Interests. The Company trades in futures and options contracts. These types of contracts involve numerous risks which include leverage (margin is usually only five to fifteen percent (5-15%) of the face value of the contract and exposure can be nearly unlimited), illiquidity, and governmental intervention designed to influence futures prices.; Further, commodity interest prices and other futures contract prices are volatile. Price movements of commodity interests are influenced by, among other things, changing supply and demand relationships, governmental, agricultural and trade programs and policies, climate, and global political and economic events. Financial instrument contract prices are influenced by, among other things, war, terrorism, interest rates, changes in balances of payments and trade, domestic and international rates of inflation, international trade restrictions and currency devaluations and revaluations. All of these can contribute to volatility which can cause the pool to lose money, yet none of these factors can be controlled by the Managing Member or the Company.; Accordingly, investment in the Company should be considered to be an extremely speculative investment. It is important that investors understand that when utilizing the Company’s investment methods, profits, if any, may be generated by less than half the total number of orders placed. Investors may experience times of substantial drawdowns. Substantial drawdowns, either from initial base equity or from peak levels of account equity, do not necessarily indicate a failure in the investment strategy, but rather are to be expected. Investors must, therefore, be prepared to withstand these periods of unprofitable investing.; Trading Suspensions. Commodities exchanges typically have the right to suspend or limit trading in any instrument traded on the exchanges. A suspension could render it impossible for the Company to liquidate positions and thereby expose the Company to losses.; Highly Leveraged Trading; Volatile Markets; “Zero-Sum” Trading. The Company utilizes futures contracts as part of its trading strategy and may be highly leveraged. In addition, the market prices of the instruments traded by the Company are highly volatile and materially affected by unpredictable factors. While volatility creates profit potential, volatility also directly effects the risks associated with trading. The combination of these two factors (leverage and volatility) can subject the value of the Company’s investments to sharp fluctuations, both positive and negative in direction. The profitability of the Company depends to a significant degree on the trading strategy employed by the Managing Member.; Futures trading is a “zero-sum,” risk transfer activity. For every gain experienced by one trader there is an equal and offsetting loss experienced by another.; Illiquid Investments. From time to time, certain markets traded by the Company may become illiquid or impose trading restrictions that make it difficult or impossible to liquidate or acquire positions in such markets, thereby eliminating profit opportunities or making it impossible to protect against further losses. Execution also becomes difficult in thinly traded markets. Although the Company will attempt to participate only in markets meeting certain minimum liquidity criteria, the Company’s orders cannot always be executed at or near the desired price in all markets. Lack of liquidity also increases the risk that the Company will be required to liquidate positions at disadvantageous prices because of its inability to raise margin collateral from other sources and because of its inability to control timing of certain events (e.g., redemptions). The risk of market illiquidity is materially heightened by the use of leverage and the possibility that margin calls or redemption requirements will need to be met in declining or disrupted market conditions. Lack of liquidity can result in significant losses.; Some United States futures exchanges limit fluctuations in futures contract prices during a single day by regulations referred to as “daily limits.” During a single trading day no trades may be executed at prices beyond the daily limit. Once the price of a futures contract has increased or decreased to the limit point, positions can be neither taken nor liquidated. Futures prices have occasionally moved the daily limit for several consecutive days with little or no trading. Such occurrences could prevent the Company from promptly liquidating unfavorable positions and subject the Company to substantial losses. The CFTC or exchanges may suspend or limit trading in other ways. Possible Effects of Speculative Position Limits. The CFTC and the United States commodities exchanges have established limits referred to as “speculative position limits” on the maximum net long or net short speculative positions that any person may hold or control in any particular futures or options contracts traded on United States commodities exchanges. All accounts owned or managed by the Managing Member of the Company are combined for speculative position limit purposes. The Managing Member could be required to liquidate positions held for the Company in order to comply with such limits. Any such liquidation could result in substantial costs to the Company, and therefore impact the performance of the Company.; Electronic Trading. The Company expects to execute certain trades by buying and selling contracts through the use of online electronic exchanges. Trading on these exchanges may subject the Company and its investors to various additional risks. There is, for example, the increased the risk of computer failure. Electronic exchanges may also have challenges with execution, especially during periods of high volume. In addition, with some contracts, there is always the possibility that certain contracts traded on electronic exchanges are very thinly traded, which may make it difficult to close out or liquidate a position at the price and time dictated by the trading system. Further, in periods of extreme market volatility, the bid/ask spreads for some contracts which are typically liquid may widen, making it very difficult to offset a position.; Potential Inability to Trade Due to Systems Failure. The Managing Member’s systematic trading strategies are dependent to a significant degree on the proper functioning of its internal computer systems. Accordingly, systems failures, whether due to third party failures upon which such systems are dependent or the failure of the Managing Member’s hardware or software, could disrupt trading or make trading impossible until such failure is remedied. Any such failure, and consequential inability to trade (even for a short time), could, in certain market conditions, cause the Company to experience significant trading losses or to miss opportunities for profitable trading.; Potential Disruption or Inability to Trade Due to a Failure to Receive Timely and Accurate Market Data from Third Party Vendors. The Managing Member’s strategies are dependent to a significant degree on the receipt of timely and accurate market data from third party vendors. Accordingly, the failure to receive such data in a timely manner or the receipt of inaccurate data, whether due to the acts or omissions of such third party vendors or otherwise, could disrupt trading or make trading impossible until such failure or inaccuracy is remedied. Any such failure or inaccuracy could, in certain market conditions, cause the Company to experience significant trading losses, effect trades in a manner which it otherwise would not have done, or miss opportunities for profitable trading. For example, the receipt of inaccurate market data may cause the Managing Member to establish (or exit) a position which it otherwise would not have established (or exited), or fail to establish (or exit) a position which it otherwise would have established (or exited), and any subsequent correction of such inaccurate data may cause the Managing Member to reverse such action or inaction, all of which may ultimately be to the detriment of the Company.; Trading in Options. The Company may trade options on futures contracts. Each such option is a right, purchased for a certain price, to either buy or sell the underlying futures contracts during a certain period of time for a fixed price. Such trading involves risks substantially similar to those involved in trading futures contracts in that options are speculative and highly leveraged. Specific market movements of the futures contracts underlying an option cannot accurately be predicted. The purchaser of an option is subject to the risk of losing the entire purchase price of the option. The writer of an option is subject to the risk of loss resulting from the difference between the premium received for the option and the price of the futures contracts underlying the option which the writer must purchase or deliver upon exercise of the option.; Market Participant Risk. The institutions, including brokerage firms and banks, which custody Company assets, may encounter financial difficulties that impair the operational capabilities or the capital position of the Company. The Company may be unable to recover its assets (even those assets directly traceable to the Company) from a broker or dealer in the event of the bankruptcy or insolvency of such broker or dealer. Moreover, even if the Company does not lose the assets on deposit with one or more brokers, the Company could incur market losses as a result of financial difficulties at such institutions (including, but not limited to, in situations where the Company may be unable to access its assets and/or execute transactions through its brokers or other financial institutions in a timely manner).; The Company’s Futures Commission Merchant May Fail. Under CFTC regulations, the Company’s futures commission merchant (“FCM”) is required to maintain its customers’ assets in a segregated account. If the FCM fails to do so, the customer may be subject to risk of loss of funds in the event of its bankruptcy. Even if such funds are properly segregated, the customer may still be subject to a risk of a loss of its funds on deposit with the FCM should another customer of the FCM or the FCM itself fail to satisfy deficiencies in such other customers’ accounts. Bankruptcy law applicable to all U.S. futures brokers requires that, in the event of the bankruptcy of such a broker, all property held by the broker, including certain property specifically traceable to the customer, will be returned, transferred or distributed to the broker’s customers only to the extent of each customer’s pro-rata share of all property available for distribution to customers. If the Company’s FCM were to become bankrupt, it is possible that the Company would be able to recover none or only a portion of its assets held by such FCM.; Securities Risk Factors. The Company may invest in equity securities of U.S. companies listed for trading on U.S. exchanges. Although equity securities have a history of long-term growth in value, their prices fluctuate based on changes in the issuer’s financial condition and prospects and on overall market and economic conditions. There is no limitation on the types or sizes of the companies in which the Company may invest if the Managing Member believes they present opportunities for capital appreciation. The Company may invest not only in securities of issuers with large market capitalizations, but also in securities of smaller companies. Smaller companies often have limited product lines, markets or financial resources, and may depend on one or few key persons for management. The securities of such companies may be subject to more volatile market movements than securities of larger, more established companies, both because the securities typically are traded in lower volume and because the issuers typically are more subject to changes in earnings and prospects.; Short Sales. The Company may make short sales of securities. Short sales create opportunities to increase return but, at the same time, are speculative and involve special risk considerations. The Company will lose value if the security that is the subject of a short sale increases in value. If the price of the security that is the subject of a short sale increases, then the Company will incur a loss equal to the increase in price from the time that the short sale was entered into plus any premiums and interest paid to a third party in connection with the short sale. Short sales theoretically involve unlimited loss potential, as the market price of securities sold short may continuously increase, although the Company may mitigate such losses by replacing the securities sold short before the market price has increased significantly. Under adverse market conditions the Company might have difficulty purchasing securities to meet its short sale delivery obligations, and might have to sell portfolio securities to raise the capital necessary to meet its short sale obligations at a time when fundamental investment considerations would not favor such sales.; Limits of Risk Disclosures. The above discussion covers certain risks associated with an investment in the Company and the Interests, but is not, nor is it intended to be, a complete enumeration or explanation of all risks involved in an investment in the Company. Prospective Members should read this entire Memorandum and the LLC Agreement and consult with their own advisers before deciding whether to invest in the Company. An investment in the Company should only be made by investors who understand the nature of the investment, do not require more than limited liquidity in the investment and can bear the financial risks of the investment including the loss of their entire investment.; Potential investors should also be aware that, if they decide to purchase Interests in the Company, they will have no role in the management of the Company and will be required to rely on the expertise of the Managing Member in dealing with the foregoing (and other) risks on a day-to-day basis.; In addition, as the Company’s investment program evolves over time, an investment in the Company will likely be subject to risk factors not described in this Memorandum. The Company, however, will endeavor to supplement this Memorandum from time to time to disclose any material changes in the information provided herein.; Forex Risk Factors; A significant portion of the Company’s assets will be committed to off-exchange foreign currency trading (“Forex”). Risks specific to Forex trading are described below.; Market Disruptions and Restrictions due to Government Action or Other Factors. Foreign currency exchange rates may be volatile and subject to intermittent market disruptions or distortions due to numerous factors specific to each foreign country, including among others government regulation and intervention, lack of liquidity and the types of entities participating in the market. Foreign currency exchange rates can be fixed by the sovereign government, allowed to float within a range of exchange rates set by the government, or left to float freely. Governments (including those of developed economies) may intervene in the currency markets through their central banks. Governments also may impose regulatory controls or taxes on foreign currency transactions, issue a new currency to replace an existing currency, or fix the exchange rate or alter the exchange rate or relative exchange rate characteristics by devaluation or revaluation of a currency. In addition, governments may designate banking holidays, restrict or suspend convertibility or transferability of a currency, or restrict participation in foreign exchange markets and funding markets, either in general or based on the nature of specific participants or transactions. The currencies of emerging economies may be subject to more frequent and larger central bank interventions than the currencies of developed economies and are also more likely to be affected by sudden changes in monetary or exchange rate policies, or by the actions of significant market participants.; Lack of Protection in Bankruptcy. The Company intends to trade over-the-counter foreign currencies (Forex) on a spot settlement basis. The transactions are not traded on an exchange. Therefore, under the U.S. Bankruptcy Code, funds deposited by the Company with a futures commission merchant or retail foreign exchange dealer for trading off-exchange foreign currency transactions are not subject to the customer funds protections provided to customers trading on a contract market that is designated by the Commodity Futures Trading Commission. The Company’s Forex dealer may commingle the Company’s funds with its own operating funds or use them for other purposes. In the event a Forex dealer becomes bankrupt, any funds the dealer is holding for the Company in addition to any amounts owed to the Company resulting from trading, whether or not any assets are maintained in separate deposit accounts by the dealer, may be treated as an unsecured creditor's claim.; The Company is Limited to Its Dealer to Offset or Liquidate Any Forex Trading Positions Since the Transactions Are Not Made On an Exchange or Market. The Company’s ability to close forex transactions or offset positions is limited to what its dealer will offer to it, as there is no other market for these transactions. The dealer may offer any prices it wishes, and it may offer prices derived from outside sources or not in its discretion. The dealer may establish its prices by offering spreads from third party prices, but it is under no obligation to do so or to continue to do so. The terms of the Company’s account agreement alone governs the dealer’s obligations to offer prices and offer offsetting or liquidating transactions. The prices offered by the Company’s dealer may or may not reflect prices available elsewhere at any exchange, interbank, or other market for foreign currency.
INTERESTS IN THE COMPANY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK. THEY ARE SUITABLE ONLY FOR PERSONS WHO CAN AFFORD TO LOSE THEIR ENTIRE INVESTMENT.
CONFLICTS OF INTEREST: Investors should consider the following inherent actual and potential conflicts of interest in determining whether or not to invest in the Company.; The Managing Member is not Independent. The Company has been formed as an investment vehicle to be managed by the Managing Member. The terms upon which the Managing Member will render services to the Company have not been negotiated at arm’s length. The Managing Member has an economic interest in acting as the Company’s managing member and commodity pool operator, respectively, because it benefits from the management fees and the Incentive Allocations, and will not likely replace itself with any unaffiliated party even if doing so might be in the Company’s best interest. The Company’s investment and trading activities will not be subject to review or oversight by an independent company.; Other Activities of the Managing Member; Proprietary Trading. The Managing Member and its principals will devote only so much time and attention to the business and affairs of the Company as they, in their sole discretion, may deem reasonably necessary. The Managing Member and its principals are entitled to engage in various other activities. The Managing Member and its principals may engage in, invest in, participate in or otherwise enter into other business ventures of any kind, nature or description, alone or with others, including the management of or investment in other investment or trading entities or vehicles, and neither the Company nor any Member shall have any right in or to any such activities or the income or profits derived therefrom. The Managing Member and its principals may have a conflict of interest in rendering advice to a client because the financial benefit from managing some other client’s account may be greater, which could provide an incentive to favor such other account.; The Managing Member and its principals may invest and trade for their own accounts, including in financial instruments in which the Company takes a position, and may trade and invest simultaneously with the Company and/or take investment positions that are different from the positions taken by the Company. As a result, conflicts of interest may arise between the Company and the Managing Member and its principals with respect to matters such as the allocation of investment opportunities, purchases and sales of financial instruments in connection with particular trading situations and allocation of personnel, resources and expenses. The records of trading by the Managing Member, its principals and agents will not be made available to the Members, except to the extent required by law. However, the Managing Member will adhere to policies and procedures that are designed to mitigate and manage potential or actual conflicts of interest that may arise from such proprietary trading activities.; Management Fee to Managing Member. There is a potential conflict of interest between the responsibility of the Managing Member to maximize Company profits from investment and trading and the possible desire of the Managing Member to avoid taking risks which might reduce the Net Asset Value of the Company and, consequently, reduce the management fee payable to the Managing Member.; Incentive Allocation to the Managing Member. The Incentive Allocation may create an incentive for the Managing Member to cause the Company to make investments that are riskier or more speculative than would be the case if the Managing Member were not to receive any performance based compensation. Since the Incentive Allocation is calculated on a basis that includes unrealized appreciation as well as realized appreciation, the Incentive Allocation may be greater than if it were based solely on realized gains.; Valuation of the Company’s Assets. To the extent that the Managing Member is involved in the valuation of the Company’s assets and liabilities, the Managing Member has an inherent conflict of interest in performing this function. It is in the Managing Member’s interest to value the assets of the Company at as high a level as possible, as both the management fee and the Incentive Allocation are calculated based on the Net Asset Value of the Company. In addition, the Managing Member’s performance records used in marketing its services to actual and prospective clients and investors will be in part dependent on the performance of the Company.; Management of Other Client Accounts. The Managing Member and its principals may manage or advise the accounts of clients other than the Company. The investment methods and strategies that the Managing Member utilizes in managing the Company may be utilized by the Managing Member and its principals in managing investments for other client accounts. The Managing Member and its principals may establish, sponsor, or be affiliated with, other investment pools which may engage in the same or similar businesses as the Company, using the same or similar investment strategies.; Although the Managing Member and its principals may manage investments on behalf of a number of other client accounts, investment decisions will not necessarily be made in parallel among the Company’s account and the other client accounts. Investments made by the Company do not, and are not intended to, replicate the investments, or the investment methods and strategies, of other accounts managed by the Managing Member and its principals. To the extent that the Managing Member determines that an investment being made for the Company also may satisfy the investment mandate of another client, the Managing Member will make an independent investment decision for the Company and the other client, based on analysis of the appropriate risk and reward ratio for each account, the intended strategy of each account, the liquidity of the account at the time of the investment and, on a going-forward basis, the overall portfolio composition and performance of the account. The investments may not be made in parallel and may not be based on the capital in each account.; Moreover, other accounts managed by the Managing Member and its principals may make investments and utilize investment strategies that may not be made or utilized by the Company, and may take positions that are opposite those of the Company. Accordingly, the other accounts managed by the Managing Member and its principals may produce results that are materially different from those experienced by the Company. Conflicting positions may be taken or held by two or more client accounts that have different investment objectives.; The records of any investment management activities that the Managing Member and its principals may engage in on behalf of the accounts of clients other than the Company will not be available for inspection by the Members.; The Managing Member May Benefit from “Soft Dollar” Arrangements. Although no such arrangements exist as of the date of this Memorandum, the Managing Member may enter into “soft dollar” arrangements with respect to the Company where permitted under applicable laws and regulations. In connection therewith, the Company may pay any broker which provides the Managing Member with free use of software, research services, referrals or other benefits a commission for executing a transaction for the Company which is in excess of the amount of commission another broker would have charged for effecting that transaction, if the Managing Member determines in good faith that such amount of commission is reasonable in relation to the value of the brokerage, software, research and other services provided by such broker. This creates a potential conflict of interest between the duties of the Managing Member to operate the Company in the best interests of the investors and its desire to receive or direct these “soft dollar” benefits.; Forex Trading Is Not On A Regulated Market Or Exchange--The Dealer Is the Counterparty. The Company’s off-exchange foreign currency trading is not conducted on an interbank market, nor is it conducted on a futures exchange subject to regulation as a designated contract market by the Commodity Futures Trading Commission. The Company’s foreign currency trades are trades with the futures commission merchant or retail foreign exchange dealer as its counterparty. As a result, when the Company loses money trading, its counterparty may be making money on such trades, in addition to any fees, commissions, or spreads the counterparty may charge.
FEES AND EXPENSES: The Company (and thus, indirectly, the investors) bears all expenses incurred in the business and investment program of the Company, including costs related to its organization and offering of Interests. Interests in the Company are subject to the fees and expenses described below.; Net Asset Value. The value of the Company’s assets and liabilities is determined by the Managing Member, which engages an administrator for such purposes (See “The Administrator”). Subject to the oversight of the Managing Member, the Administrator generally calculates the Net Asset Value of the Company on the last business day of each month or such other day or days as the Managing Member may determine (each, a “Valuation Date”), with information provided by, and in consultation with the Managing Member. The “Net Assets” or “Net Asset Value” of the Company means, at any date, the value of all assets of the Company, including all cash and cash equivalents, accrued interest and the market value of all assets of the Company (including U.S. Treasury bills valued at costs plus accrued interest, the liquidating value of all futures and options positions and the fair market value of all other assets of the Company), less all liabilities (including commissions and fees) and any accrued but unpaid expenses of the Company, determined on the accrual basis of accounting in accordance with U.S. generally accepted accounting principles, consistently applied.; Selling Commissions. There are no placement fees or selling commissions charged to the Company on sales of Interests. However, while no such arrangement exists or is contemplated at this time, the Managing Member may, in its sole discretion, make certain payments out of the Managing Member’s own funds to third parties who introduce investors to the Company.; Other Expenses. The Company pays all of the costs and expenses associated with the Company’s operations, including, without limitation: (i) all organization expenses and all expenses related to the initial and ongoing offering of Interests and filing fees; (ii) all taxes imposed on the Company (or that the Company is required to withhold or pay with respect to any of its Members); (iii) all brokerage fees and commission expenses or other expenses of transactions engaged in by the Company; (iv) all auditing and tax return preparation expenses incurred in connection with the Company; (v) all legal fees and expenses; (vi) all accounting fees and expenses; (vii) all research fees and expenses, including research-related travel; (viii) all exchange, board of trade or other trading or execution facility membership or participation expenses; (ix) all bookkeeping, recordkeeping, administration and clerical fees and expenses; (x) all market data, newswire and data processing expenses, and connectivity charges; (xi) the Company’s proportionate share of all IT Overhead Expenses (as defined below); (xii) all custody charges; (xiii) the expense of errors and omissions and other appropriate insurance coverage with respect to the Company and its management and operations; (xiv) all other ordinary and out-of-pocket expenses of the Company; (xv) fees and expenses of preparing and submitting regulatory filings (e.g., Blue Sky filings and CFTC/NFA Form CPO-PQR) and other compliance related expenses, and (xvi) all extraordinary expenses, including, without limitation, (A) litigation expenses, including expenses of litigation and settlement in connection with any portfolio investment, (B) expenses of registering the Company (but not the Managing Member) with any federal or state agency under the requirements of any applicable law, and (C) expenses incurred in connection with the indemnification of the Managing Member and any other person covered under the LLC Agreement. The Company will reimburse the Managing Member for all such costs and expenses, if any, borne by the Managing Member on behalf of the Company.; “IT Overhead Expenses” means all information and technology-related expenses incurred by or on behalf of the Company, including, but not limited to, fees, expenses and upgrade costs relating to hardware, infrastructure, software development, exchange API development, systems engineering, development and operation, development of risk management programs, trading tools, quote and order logic and management programs, hedging tools, and analytical programs, and other similar items.; The Company will amortize its organizational and initial offering costs over a three-year period (36 months) from the Company’s commencement date and to that extent, the Company’s accounting treatment will diverge from U.S. generally accepted accounting principles (“GAAP”).
ALLOCATION OF PROFIT AND LOSS: This section briefly describes lengthy and detailed accounting provisions of the LLC Agreement, a copy of which is attached hereto as Exhibit A and is incorporated herein by this reference. The following description is a summary only, is not intended to be complete, and is qualified in its entirety by such reference. For purposes of the discussion below, investors and the Managing Member are sometimes referred to collectively as “members.”; Partnership Accounting. Each member has a capital account, the initial balance of which consists of such member’s cash contributions to the Company. The Net Asset Value of the Company is determined monthly and any increase or decrease in such Net Asset Value from the preceding month is allocated pro rata on the basis of the members’ capital account balances, among the members’ respective capital accounts on a monthly basis.; Federal Tax Allocations. At the end of each fiscal year, the Company’s income and expense and capital gain or loss is allocated among the members, and each member which is subject to United States income taxation is required to include in his or her United States federal income tax return his or her share of such items, irrespective of the fact that no distributions have been made by the Company.; Items of ordinary income and expense shall be allocated pro rata among the members based on their respective capital accounts as of the end of each month in which the items of ordinary income and expense accrue.
REDEMPTIONS, ASSIGNMENTS AND DISTRIBUTIONS: Redemptions. Subject to certain restrictions as described herein, an investor may require the Company to redeem some or all of his or its Interest on a monthly basis, and on a “first in, first out” basis, effective upon the conclusion of the last business day of any calendar month or at such additional times and upon such conditions as the Managing Member may determine in its sole discretion (each, a “Withdrawal Date”). Unless otherwise determined by the Managing Member in its sole discretion, written notice of such a redemption and withdrawal in proper form must be received by the Managing Member, prior to 5:00 p.m. Eastern Standard Time at least ten (10) days prior to the requested redemption date (or such lesser period as may be acceptable to the Managing Member in its sole discretion).; Without the consent of the Managing Member, no partial withdrawal is allowed if the amount of the partial withdrawal is less than $10,000 or if, following such withdrawal, the aggregate capital account balance attributable to the withdrawing Member’s remaining Interests would be less than $250,000. The Managing Member may, but is not required to, treat a request for withdrawal that would reduce a Member’s aggregate capital account balance below $250,000 as a request for a complete withdrawal of such Member’s remaining Interests in the Company.; Except with respect to certain compulsory withdrawals described below and subject to the creation of any reserves as described herein, the withdrawal proceeds payable in connection with the withdrawal of an Interest will be equal to the capital account balance attributable to such Interest (or a percentage thereof, in the case of a partial withdrawal) as of the close of business on the Withdrawal Date after deduction for any accrued Incentive Allocation and allocable share of all fees and expenses of the Company, including the Management Fee (the “Withdrawal Price”).; Withdrawal requests may be submitted by electronic mail to the Managing Member at jerome@viseroij.com provided that: (i) the original signed withdrawal request is received by the Managing Member prior to the Withdrawal Date; and (ii) the investor receives written confirmation, which may be delivered by electronic mail, from the Managing Member that the withdrawal request has been received. Investors failing to receive such written confirmation within five (5) business days should contact the Managing Member. Failure to obtain such written confirmation will render electronic instructions void. Withdrawal requests, once submitted, are irrevocable unless otherwise agreed to in writing by the Managing Member. No withdrawal request will be effective if the Company suspends withdrawals, commences winding-up or the Managing Member announces its intention to commence winding up the Company on or before the effective date of the related withdrawal.; The Managing Member may waive or modify any of the requirements and restrictions on withdrawals set forth herein with respect to any Member without having to give any other Member notice of, and without entitling any other Member to, such a waiver or modification; provided that the Managing Member determines that such waiver or modification will not materially adversely affect the other Members.; Compulsory Redemptions. At any time, the Managing Member may, in its sole discretion, require any Member to withdraw all or a portion of his or its Interests for any reason or no reason upon written notice to the Member. The Withdrawal Date shall be the date specified in such written notice, which date may be the same as the notice. In the sole discretion of the Managing Member, if a compulsory withdrawal results from: (i) an unauthorized assignment or transfer, the Withdrawal Price may be the lower of the capital account balance attributable to such withdrawn Interests as of the relevant Withdrawal Date and the capital account balance attributable to such withdrawn Interests as of the date of the purported assignment or transfer; or (ii) the breach of any representation or warranty made by the Member, the Withdrawal Price may be the lower of the capital account balance attributable to such withdrawn Interests as of the relevant Withdrawal Date and the total subscription amount paid by the Member in respect of such withdrawn Interests.; Payment of Redemption Proceeds. Except as determined by the Managing Member in accordance with this Memorandum and the LLC Agreement, and subject to such reserves, holdbacks or adjustments described herein, the Company will endeavor to distribute the Withdrawal Price as soon as practicable and, in any event, within thirty (30) days following the relevant Withdrawal Date; provided that the Managing Member may, in its sole discretion, withhold up to five percent (5%) of the Withdrawal Price, which withheld amount will be payable as soon as practicable following the completion of the Company’s annual audit with respect to the fiscal year in which the applicable Withdrawal Date occurs, subject to any necessary adjustments to the Withdrawal Price based on such audit. The Company will not pay interest on the Withdrawal Price. Although the Withdrawal Price generally will be paid in cash, withdrawal payments may also be made in-kind or partially in-kind, pro rata or non-pro rata, in the sole discretion of the Managing Member.; The right to obtain payment on withdrawals is contingent upon (i) the Company having assets sufficient to discharge its liabilities and (ii) timely receipt by the Company of a withdrawal request. In addition, under certain circumstances deemed extraordinary in the Managing Member’s discretion, the Company may delay payment of all or any portion of the Withdrawal Price, in which event payment of the delayed portion of the Withdrawal Price will be made to Members (or former Members) as soon as practicable after such extraordinary circumstances cease to exist. Where such delay is due to an inability to realize certain investments, the amount otherwise due to the Members may be increased or decreased to reflect the performance of such investments through the date on which such investments are realized or to reflect the increase or decrease in the value of the investments through the date on which such investments are distributed to the Members or otherwise disposed of.; The Managing Member may withhold or limit the amount of any Withdrawal Price or distribution to a Member if the Managing Member determines in its sole discretion that a reserve is required to pay for contingent liabilities arising from events occurring during the period of time in which a withdrawing Member was a member of the Company.; Suspension of Redemptions. Notwithstanding any provision to the contrary in this Memorandum, the Managing Member may suspend the determination of the Net Asset Value of the Company, withdrawals of Interests and/or the payment of withdrawal proceeds: (i) during any period in which the Managing Member determines that the suspension is necessary in order to assure that the Company will not be treated as “publicly traded” under Section 7704 of the Code, if treatment as “publicly traded” would be adverse to the Members; (ii) during any period when any exchange, other board of trade or over-the-counter market on which a significant portion of the Company’s investments is quoted is closed, other than for ordinary holidays and weekends, or during periods in which dealings are restricted or suspended or quotes cannot otherwise be accurately obtained; (iii) during the existence of any state of affairs which, in the opinion of the Managing Member, constitutes an emergency as a result of which disposal of investments by the Company would not be reasonably practicable or would be seriously prejudicial to the Members; (iv) during any breakdown in the means of communication normally employed in determining the price or value of any portion of the Company’s investments, or when for any other reason the prices or values of any of the investments owned by the Company cannot reasonably be promptly and accurately ascertained; (v) during any period when, in the opinion of the Managing Member, the effect of withdrawals, including withdrawals for which withdrawal requests have been received, would materially impair the ability of the Company to operate in pursuit of its objectives, would unfairly and materially adversely affect the remaining Members, or would otherwise jeopardize the tax status of the Company; or (vi) during any other such period when, in the opinion of the Managing Member, disposal of part or all of the Company’s assets, or determination of the Net Asset Value of the Company, would not be reasonable or practicable or would be prejudicial to the Members.; The Company will promptly notify Members of any such suspension, and the termination of any such suspension, by means of a written notice. To the extent that a withdrawal request is not revoked, the withdrawal shall be effected as of the first Withdrawal Date following the recommencement of withdrawals.; Assignments and Transfers. Because the offering of Interests is not registered under the Securities Act or any state securities law, each investor must represent and warrant in the Subscription Documents that such investor is purchasing the Interest for investment and not with a view to the assignment, transfer or disposition of the Interest.; AN INVESTOR MAY NOT ASSIGN, TRANSFER OR OTHERWISE DISPOSE OF, BY GIFT OR OTHERWISE, ANY OF SUCH INVESTOR’S INTEREST OR ANY INTEREST IN SUCH INVESTOR’S INTEREST WITHOUT GIVING PRIOR WRITTEN NOTICE TO THE MANAGING MEMBER AND RECEIVING THE MANAGING MEMBER’S PRIOR WRITTEN CONSENT, WHICH THE MANAGING MEMBER MAY WITHHOLD IN ITS ABSOLUTE DISCRETION.; Unless otherwise determined by the Managing Member in its sole discretion, authorized assignments and transfers shall only be effective as of the close of the last business day of a calendar month.; Distributions. The Managing Member has sole discretion in determining what distributions, if any, the Company will make to investors. No distributions are contemplated. No Member shall have the right to receive distributions in property other than cash.
STANDARDS OF LIABILITY; INDEMNIFICATION: The LLC Agreement provides that the Managing Member and its principals, directors, managers, officers, owners, employees, controlling persons and other affiliates of the Managing Member and any agent thereof (each a “Covered Person”) shall not be liable if such person’s actions were in good faith and in a manner which such person reasonably believed to be in, or at least not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe such person’s conduct was unlawful; provided that such limitation on liability shall not apply with respect to any Covered Person to the extent that his or her conduct constituted gross negligence, willful misconduct, fraud or criminal misconduct.; Additionally, each Covered Person is indemnified by the Company for losses suffered in connection with the Company if such person acted in good faith and in a manner which such person reasonably believed to be in, or at least not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe such person’s conduct was unlawful; provided that such indemnification shall not apply to the extent that the Covered Person’s conduct constituted gross negligence, willful misconduct, fraud or criminal misconduct.; The foregoing only summarizes the terms of these indemnities and standards of liability. Complete indemnity and exculpation terms, including provisions for advancing indemnity payments, are contained in the LLC Agreement, the specific provisions of which, rather than the foregoing summary, govern the operation of any indemnification and standards of liability.
BROKERAGE ARRANGEMENTS: The Company currently trades Financial Instruments through Interactive Brokers LLC (“IB LLC”), which is registered as a futures commission merchant (“FCM”) with the CFTC and is a member of the NFA. IB LLC is also a member of the New York Stock Exchange, the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the Securities Investor Protection Corporation (“SIPC”). It is registered as a broker-dealer with the US Securities and Exchange Commission (“SEC”). The Company also trades foreign exchange through Macquarie Bank Limited. The Company expects that it may utilize other FCMs, introducing brokers, executing brokers, broker-dealers and foreign exchange dealers (collectively, “brokers”) in connection with its transactions.; Interactive Brokers LLC. IB LLC provides execution, clearing and settlement services for customer futures and securities transactions. IB LLC is also a Forex Dealer Member of NFA, and it provides customers with the ability to trade over the counter spot forex.; Except as disclosed below, there have been no material civil, administrative, or criminal proceedings pending, on appeal, or concluded against IB LLC or its principals in the past five years. NFA Case # 22BCC00004; On April 14, 2022, NFA's Business Conduct Committee (BCC) issued a Complaint against IB LLC. Count I of the Complaint charged IB LLC with improperly canceling retail customer forex orders contrary to the reasons permitted under NFA Compliance Rule 2-43(a)(1). Count II of the Complaint charged IB LLC with failing to adequately supervise its employees in the conduct of their forex activities for or on behalf of the firm to ensure compliance with the relevant NFA requirements, contrary to NFA Compliance Rule 2-36(e).; On April 14, 2022, NFA's Business Conduct Committee (BCC) issued a Decision accepting IB LLC's settlement offer and ordered IB LLC to pay a $250,000 fine.; CFTC Settlement Regarding Negative Oil Prices; On September 28, 2021, without admitting or denying any of the findings or conclusions therein, IB entered into a settlement agreement pursuant to a finding by the U.S. Commodity Futures Trading Commission (“CFTC”) that Interactive failed to adequately supervise its officers, employees, and agents in violation of Regulation 166.3, 17 C.F.R. § 166.3 (2020). This finding stemmed from electronic trading systems issues IB experienced on April 20, 2020, when certain crude oil futures products traded at negative prices for the first time in history. Those systems issues included (1) the inability of some customers to enter orders for these products when negative prices occurred and (2) customers opening positions in crude oil futures without sufficient equity in their accounts to meet applicable margin requirements. Although IB had engaged in extensive systems testing and had begun implementing necessary coding changes in advance of April 20, it was not able to fully deploy new software before crude oil futures traded in negative territory. After April 20, 2020, IB promptly put in place measures to ensure that its systems are prepared for similar negative-pricing of futures products going forward. As part of the settlement agreement, Interactive agreed to pay a civil monetary penalty in the amount of $1,750,000. In addition, Interactive agreed to pay restitution in the amount of $82,570,000. This restitution amount was fully credited by the CFTC as Interactive had voluntarily made aggregate payment of over $100,000,000 to potentially affected customers shortly after the April 2020 negative oil pricing event.; CME Group Actions; On September 25, 2020, CME Group Business Conduct Committee Panels representing the Chicago Mercantile Exchange (“CME”), Commodity Exchange (“COMEX”), New York Mercantile Exchange (“NYMEX”) and Chicago Board of Trade (“CBOT”) found that IB LLC implemented customer order routing functionality that bypassed CME group market integrity controls. Specifically, in several cases, this functionality enabled its customer orders to avoid protection points applied to all market orders by CME Group's Globex platform in reckless disregard for the adverse impact on the market. These protection points are designed to prevent extreme price movements and other market disruptions. By routing customer initiated orders in this manner on numerous occasions between August 2015 and January 2016, IB LLC caused various markets to experience price, liquidity and trade volume aberrations and velocity logic events.; The Panels also found that IB LLC failed to adequately take into consideration market conditions when it used this order routing functionality to automatically liquidate under-margined customer accounts which, on multiple occasions between August 2015 and January 2016, caused those same markets to experience extreme price movements, liquidity and trade volume aberrations, and velocity logic events. The activity described above resulted in four companion cases brought by the CME, COMEX, NYMEX and CBOT. In accordance with the settlement of these cases, IB LLC was fined a total of $375,000 with apportionments of $100,000 to CME, $100,000 to COMEX, $100,000 to NYMEX and $75,000 to CBOT. IB LLC fully cooperated in the investigation and all order routing logic leading to the activity described above has been remediated.; AML Settlements; On August 10, 2020, without admitting or denying any of the findings or conclusions therein, IB LLC consented to the entry of an Order Instituting Proceedings Pursuant to Section 6(c) and (d) of the Commodity Exchange Act, Making Findings, and Imposing Remedial Sanctions (“CFTC Order”) with the CFTC; an Order Instituting Administrative and Cease-and-Desist Proceedings, Pursuant to Sections 15(b) and 21C of the Exchange Act, Making Findings and Imposing Remedial Sanctions and a Cease-and-Desist Order (“SEC Order”) with the SEC; and a Letter of Acceptance, Waiver and Consent (“AWC”) with the FINRA concerning IB LLC’s past anti-money laundering (“AML”) and Bank Secrecy Act (“BSA”) practices and procedures (collectively, the “Orders”).; In consenting to the entry of the Orders, IB LLC agreed to pay penalties of $15 million to FINRA, $11.5 million to the SEC and $11.5 million to the CFTC, plus approximately $700,000 in disgorgement and to cease and desist from violating CFTC Regulations 42.2 and 166.3 and Section 17(a) of the Exchange Act and Rule 17a-8 promulgated thereunder. In addition, IB LLC was censured and has agreed to continue the retention of an independent consultant to review the implementation of its enhanced practices and procedures.; The findings set forth in the CFTC Order stated that, from June 2014 through November 2018, IB LLC failed to maintain an adequate AML program and to diligently supervise its employees’ handling of certain commodity trading accounts held at IB LLC that were the subject of recent enforcement actions and nonpublic investigations initiated by the CFTC. The CFTC’s findings stated that IB LLC lacked a reasonably designed process for conducting investigations of account activity and making Suspicious Activity Reports (“SARs”) determinations and failed to identify or adequately investigate certain indicia of suspicious activity in the accounts at issue that should have prompted a filing of with appropriate authorities. The CFTC’s findings stated that, as a result, IB LLC engaged in acts and practices that violated Regulations 42.2 and 166.3, 17 C.F.R. §§ 42.2, 166.3 (2019).; The findings set forth in the SEC order stated that, from at least July 1, 2016 to June 30, 2017, IB LLC failed to file SARs relating to suspicious activity involving certain U.S. microcap securities transactions it executed on behalf of its customers. The SEC’s findings stated that, during the relevant time period, IB LLC ignored or failed to recognize numerous red flags, failed to properly investigate certain conduct as required by its written supervisory procedures, and ultimately failed to file SARs on suspicious activity. These failures were found to be the result of IB LLC’s failure to implement a reasonable surveillance program. The SEC’s findings stated that, as a result, IB LLC willfully violated Section 17(a) of the Exchange Act and Rule 17a-8 thereunder.; The FINRA findings, set forth in the AWC, stated that, from January 2013 through September 2018, IB LLC failed to develop and implement an AML program reasonably designed to match its growth, and as a result, was in violation of FINRA Rules 3310(A), (B), (C) and 2010. The FINRA findings stated that, during the relevant period, IB LLC failed to reasonably surveil certain money movements, develop and implement reasonably designed surveillance tools for certain money movements and securities transactions, reasonably investigate potentially suspicious activity and file SARs after detecting that customers had engaged in suspicious activity, and conduct reasonable AML testing of its program.; Class Action Matter; On December 18, 2015, a former individual customer filed a purported class action complaint against IB LLC, IBG, Inc., and Thomas Frank, PhD, the Company’s Executive Vice President and Chief Information Officer, in the U.S. District Court for the District of Connecticut. The complaint alleges that the former customer and members of the purported class of IB LLC’s customers were harmed by alleged ‘‘flaws’’ in the computerized system used by IB LLC to close out (i.e., liquidate) positions in customer brokerage accounts that have margin deficiencies. The complaint seeks, among other things, undefined compensatory damages and declaratory and injunctive relief.; On September 28, 2016, the District Court issued an order granting IB LLC’s motion to dismiss the complaint in its entirety, and without providing plaintiff leave to amend. On September 28, 2017, plaintiff appealed to the United States Court of Appeals for the Second Circuit. On September 26, 2018 the Court of Appeals affirmed the dismissal of plaintiff’s claims of breach of contract and commercially unreasonable liquidation but vacated and remanded back to the District Court plaintiff’s claims for negligence. On November 30, 2018, the plaintiff filed a Second Amended Complaint. The Company filed a motion to dismiss the new complaint on January 15, 2019 requesting that the District Court dismiss the remaining negligence claims. On September 30, 2019, the Court denied IBKR’s motion to dismiss. The parties are currently engaged in class discovery. Plaintiff’s motion for class certification is due on August 16, 2021. IB LLC and the related defendants intend to continue to defend themselves vigorously against the case.; Trading Technologies Matter; On February 3, 2010, Trading Technologies International, Inc. (“Trading Technologies”) filed a complaint in the U.S. District Court for the Northern District of Illinois, Eastern Division, against IBG LLC and IB LLC (“Defendants”). The complaint, as amended, alleges that the Defendants have infringed and continue to infringe twelve U.S. patents held by Trading Technologies. Trading Technologies is seeking, among other things, unspecified damages and injunctive relief. The Defendants filed an answer to Trading Technologies’ amended complaint, as well as related counterclaims. The Defendants deny Trading Technologies’ claims, assert that the asserted patents are not infringed and are invalid, and assert several other defenses as well. The asserted patents were the subject of petitions before the United States Patent and Trademark Office (“USPTO”) seeking Covered Business Method Review (“CBM Review”). The USPTO Patent Trial Appeal Board (“PTAB”) found all claims of ten of the twelve asserted patents to be invalid. Of the remaining two patents, 53 of the 56 claims of one patent were held invalid and the other patent survived CBM Review proceedings. Appeals were filed by either Defendants or Trading Technologies on all PTAB determinations. The United States Court of Appeals for the Federal Circuit vacated the CBM Review determinations of invalidity for four patents, concluding that these patents were not eligible for CBM Review. In August 2020, the District Court held in a summary judgment ruling that two of the remaining four patents were invalid. The District Court trial with respect to the two 25 remaining patents concluded in September 2021. On September 7, 2021, the jury found that IBG LLC and IB LLC infringed two patents owned by Trading Technologies, but the jury recognized that any infringement by IBG LLC and IB LLC was not willful, and therefore not subject to enhanced damages. The jury awarded $6,610,985 to Trading Technologies, an amount far less than it had sought in damages. IBG LLC and IB LLC continue to believe that Trading Technologies’ patents are invalid, and even if valid, that IBG LLC and IB LLC did not infringe the patents.; Macquarie Bank Limited. The Company may enter into foreign exchange (“FX”) transactions with Macquarie Bank Limited (“MBL”). MBL is part of the Macquarie Group, a global provider of banking, financial advisory, investment and funds management services. In Australia, MBL holds a banking license and it is regulated by the Australian Prudential Regulation Authority (APRA). It is also regulated by the Australian Securities and Investments Commission (“ASIC”) and the UK Financial Conduct Authority. MBL is provisionally registered with the CFTC as a swap dealer and it is a member of the NFA.; Broker Selection. The Company’s transactions can be expected to generate brokerage commissions and other costs, all of which the Company, and not the Managing Member, is obligated to pay. The Managing Member has discretion to select different brokers to be used for each transaction for the Company and to negotiate the rates and commissions the Company will pay. In selecting brokers to execute transactions, the Managing Member need not solicit competitive bids and does not have an obligation to seek the lowest available commission cost. As part of the overall brokerage services that they may offer to clients such as the Company, certain brokers may refer potential investors to the Company. Although the commission rates charged by such brokers are represented as not reflecting such additional service, the commission rates charged by such brokers may be higher or lower than the commission rates charged by other brokers, and the Company may be deemed to be paying for other products and services, such as the introduction of potential investors, provided by such brokers which are included in the commission rate. In selecting brokers, the Managing Member may consider products or services provided by the brokers or paid for by the brokers to be provided by others, including research and research-related products and services, and other products and services such as special execution capabilities, clearance, settlement, commission rates (and other transaction charges), net price, online pricing, block trading, on-line access to computerized data regarding clients’ accounts, performance measurement data, consultations, technical data, recommendations, general reports, financial strength and stability, efficiency of execution and error resolution, quotation services, custody, recordkeeping and similar services (collectively, “Products and Services”). The Managing Member will not adhere to any rigid formulae in making the selection of brokers, but will weigh a combination of criteria.
CERTAIN TAX CONSIDERATIONS: The following is a general summary (the “Summary”) of some of the United States federal income tax consequences to individual U.S. investors based upon the Code and rules, regulations and existing interpretations relating thereto, any of which could be changed at any time. This Summary does not address the tax considerations of any pending or proposed legislation. This Summary is not intended to be a complete analysis of all possible tax considerations in purchasing, holding, or disposing of an Interest in the Company. A complete discussion of all federal, state and local tax aspects of an investment in the Company is beyond the scope of the Summary. Federal, state, and local income tax consequences of an investment in the Company may not be the same for all taxpayers. This Summary does not address the tax considerations that apply to investors with special tax considerations. Prospective investors must consult their own tax advisers on such matters, including the taxes (including federal, state, local, and estate) applicable to the purchase, holding, or disposition of Interests in the Company.; INVESTORS ARE HEREBY NOTIFIED THAT: (A) ANY DISCUSSION OF U.S. FEDERAL TAX ISSUES SET FORTH IN THIS MEMORANDUM IS NOT INTENDED OR WRITTEN TO BE RELIED UPON, AND CANNOT BE RELIED UPON, BY ANY INVESTOR FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON INVESTORS UNDER THE INTERNAL REVENUE CODE; (B) SUCH DISCUSSION IS WRITTEN TO SUPPORT THE PROMOTION OR MARKETING BY THE COMPANY AND THE MANAGING MEMBER OF THE INTERESTS; (C) INVESTORS ARE NOT TO CONSTRUE THE CONTENTS OF THIS MEMORANDUM OR ANY PRIOR OR SUBSEQUENT COMMUNICATIONS FROM THE COMPANY OR ITS AGENTS AS TAX, LEGAL, OR INVESTMENT ADVICE; AND (C) INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.; Classification As A Partnership. The Company intends to operate and be classified as a partnership for United States federal income tax purposes. These conclusions are not binding on the IRS or on any court, and there can be no assurance that the IRS will not assert that the Company should be taxable as a corporation. The following discussion assumes that the Company will be treated as a partnership for federal income tax purposes.; Taxation of Investors on Profits and Losses of the Company. The Company, as a partnership for tax purposes, is not be subject to federal income tax. Instead, with the exception of investors who are generally not liable for United States income tax, each investor is required for federal income tax purposes to take into account, in his or her taxable year with which or within which a taxable year of the Company ends, his or her distributive share of all items of Company income, gain (including unrealized gain from certain futures and forward contracts and options “marked-to-market”), loss, deduction and credit and other items for such taxable year of the Company, whether or not cash is distributed to the investor during the taxable year. For example, if an investor’s taxable year is the calendar year and the Company’s fiscal year also ends on December 31, 2019, the investor must include in his or her taxable income for his or her year ending December 31, 2019, his or her distributive share of Company gain for its year ending December 31, 2019. An investor must take such items into account and may be liable for income taxes on that income even if the Company does not make any distributions to such investor during his or her taxable year.; Limitations on Deductibility of Company Losses by Investors. The amount of any loss of the Company (including capital loss) that an investor is entitled to include in his or her personal income tax return is limited to the adjusted tax basis for his or her Interest in the Company as of the end of the Company’s taxable year in which such loss occurred. Generally, an investor’s adjusted tax basis for his or her Interest in the Company is the amount paid for such Interest reduced (but not below zero) by his or her share of any Company distributions, losses realized (including constructively realized under the mark-to-market system described below) and expenses (including certain expenses of the Company which are not properly chargeable to the capital account and which are not deductible in computing the Company’s taxable income) and increased by his or her share of the Company’s realized (including constructively realized under the mark-to-market system described below) income, including gains.; Similarly, an investor that is subject to the “at risk” limitations (generally, non-corporate taxpayers and closely held corporations) may not deduct losses of the Company (including capital losses) to the extent that they exceed the amount he or it has “at risk” with respect to the interest in the Company at the end of the year. The amount that an investor has at risk will generally be the same as his or her adjusted basis as described above, except that it will not include any amount that the investor has borrowed on a nonrecourse basis or from a person who has an Interest in the Company or a person related to such person.; Losses denied under the basis or at risk limitations are suspended and may be deducted in subsequent years, subject to these and other applicable limitations.; Because of the limitations imposed upon the deductibility of capital losses, a non-corporate investor’s distributive share of any net capital losses of the Company will not materially reduce the federal income tax on his or her ordinary income.; Passive Activity Loss Rules. The Code contains rules (applicable generally to non-corporate taxpayers, certain personal service corporations and certain closely-held corporations) designed to prevent the deduction of losses from “passive activities” against income not derived from such activities, including income from investment activities not constituting a trade or business, such as interest and dividends (“Portfolio Income”) and salary. The activities of the Company will not constitute a “passive activity” with the result that income derived from the Company’s trading activities will constitute Portfolio Income or other income not from a passive activity. As a result, losses resulting from an investor’s other passive activities cannot be offset against such income and net losses from Company operations will be deductible in computing the taxable income of an investor (subject to other limitations on the deductibility of such losses).; Deduction for Certain Expenses. Beginning in 2018, the Code provides that, for a non-corporate taxpayer who itemizes deductions when computing taxable income, investment advisory fees are no longer deductible. The IRS could contend that the incentive allocations and/or management fees charged by the Company (plus other ordinary expenses of the Company) should be characterized as investment advisory fees incurred by the Company. If such a contention were sustained, each non-corporate Member’s distributive share of income from the Company would be increased (solely for tax purposes) by such Member’s share of the amounts so characterized, and the deductibility of each non-corporate Member’s share of investment advisory fees could be adversely affected.; PROSPECTIVE INVESTORS MUST CONSULT THEIR OWN TAX ADVISERS CONCERNING THE FOREGOING “INVESTMENT ADVISORY FEES” ISSUE, WHICH IS A MATTER OF UNCERTAINTY AND COULD HAVE A MATERIAL IMPACT ON AN INVESTMENT IN THE COMPANY IN TERMS OF THE TOTAL TAX PAYABLE.; Cash Distributions and Redemptions of Interests. Cash received from the Company by an investor as a distribution with respect to his or her Interest in the Company or in redemption of less than all of such Interest generally is not reportable as taxable income by an investor, except as described below. Rather, such distribution reduces (but not below zero) the total tax basis of the Interest held by the investor after the distribution or redemption. Any cash distribution in excess of an investor’s adjusted tax basis for his or her Interest in the Company is taxable to him or her as gain from the sale or exchange of such Interest and, assuming that the investor has held his or her Interest for more than one year, will be long-term capital gain. Because the tax basis of an investor who has not redeemed his or her entire Interest is not increased on account of his or her distributive share of the Company’s income until the end of the Company’s taxable year, cash distributions during the taxable year could result in taxable gain to an investor even though no gain would result if the same distributions were made at the end of the taxable year. Furthermore, the share of the Company’s income allocable to such an investor at the end of the Company’s taxable year would also be includable in the investor’s taxable income and would increase his or her tax basis in his or her remaining Interest in the Company as of the end of such taxable year.; Redemption for cash of the entire Interest in the Company held by an investor will result in the recognition of capital gain or loss for federal income tax purposes. Such gain or loss will be equal to the difference, if any, between the amount of the cash received and the investor’s adjusted tax basis for such Interest. An investor’s adjusted tax basis for his or her Interest includes for this purpose his or her distributive share of the Company’s income or loss for the year of such redemption. Assuming that the investor has held his or her Interest for more than one year, any gain or loss on redemption will be long-term capital gain or loss. Under Section 751 of the Code, however, the redeeming investor will recognize ordinary income to the extent the Company holds certain short-term obligations or market discount bonds, the interest on which has not been included in the Company’s taxable income, regardless of whether the investor would otherwise recognize a gain on such redemption.; Gain and Loss on Section 1256 Contracts. Under the “mark-to-market” system of taxing futures and futures options contracts traded on U.S. exchanges, certain foreign currency forward contracts and certain commodity options, including certain stock index options (“Section 1256 Contracts”), any unrealized profit or loss on positions in such Section 1256 Contracts which are open as of the end of a taxpayer’s fiscal year is treated as if such profit or loss had been realized for tax purposes as of such time. If an open position on which profit has been realized as of the end of a fiscal year declines in value after such year-end and before the position is in fact offset, a loss is recognized for tax purposes at the end of the fiscal year in which the value declines (irrespective of the fact that the taxpayer may actually have realized a gain on the position considered from the time that such position was initiated). The converse is the case with an open position on which a mark-to-market loss was recognized for tax purposes as of the end of a fiscal year but which subsequently increases in value prior to being offset. In general, sixty percent (60%) of the net gain or loss which is generated by transactions in Section 1256 Contracts is treated as long-term capital gain or loss and the remaining forty percent (40%) of such net gain or loss is treated as short-term capital gain or loss regardless of the period the Section 1256 Contract is held and regardless of whether the Section 1256 Contract is a long or short position.; Gain and Loss on Non-Section 1256 Contracts. Gain or loss with respect to contracts that are non-Section 1256 Contracts will be taken into account for tax purposes only when realized.; Tax on Capital Gains and Losses. The maximum tax rate for non-corporate taxpayers on adjusted net capital gain is twenty percent (20%). Adjusted net capital gain is generally the excess of net long-term capital gain (the net gain on capital assets held for more than twelve (12) months, taking into account sixty percent (60%) of gain or loss on Section 1256 Contracts) over net short-term capital loss (the net loss on capital assets held for twelve (12) months or less, taking into account forty percent (40%) of gain or loss on Section 1256 Contracts). See “Limitation on Deductibility of Interest on Investment Indebtedness,” below (for a discussion of the reduction in the amount of a non-corporate taxpayer’s net capital gain for a taxable year to the extent such gain is taken into account by such taxpayer in computing its interest deduction). Net short-term capital gain (net gain on assets held for twelve (12) months or less, including forty percent (40%) of net gain on Section 1256 Contracts) is subject to tax at the same rates as ordinary income. Capital losses are deductible by non-corporate taxpayers only to the extent of capital gains for the taxable year plus $3,000 ($1,500 in the case of married individuals filing separate returns). Capital gains are subject to tax at the same rates as ordinary income for corporate taxpayers. Capital losses of corporate taxpayers are deductible only against capital gains.; In general, a non-corporate taxpayer is not permitted to carry back a capital loss to prior taxable years. However, if a non-corporate taxpayer incurs a net capital loss for a year, the portion thereof, if any, which consists of a net loss on Section 1256 Contracts may, at the election of the taxpayer, be carried back three years. Losses so carried back may be deducted only against net capital gain for such year to the extent that such gain includes gains on Section 1256 Contracts included in the taxpayer’s income for such year. Losses so carried back will be deemed to consist of sixty percent (60%) long-term capital loss and forty percent (40%) short-term capital loss (see “Gain and Loss on Section 1256 Contracts,” above). To the extent that such losses are not used to offset gains on Section 1256 Contracts in a carryback year, they will carry forward indefinitely as losses on Section 1256 Contracts in future years.; Syndication Fees. Neither the Company nor any investor will be entitled to any deduction for the Company’s syndication expenses, including any amount paid by the Managing Member to any selling agent, nor can these expenses be amortized by the Company or any investor.; Limitation on Deductibility of Interest on Investment Indebtedness. Interest paid or accrued on indebtedness properly allocable to property held for investment is “investment interest.” Interest expense incurred by an investor to acquire or carry his or her Interest in the Company (as well as other investments) will constitute investment interest. Such interest is generally deductible by non-corporate taxpayers only to the extent it does not exceed net investment income (that is, generally, the excess of (i) gross income from interest, dividends (other than qualified dividend income), rents and royalties, which would include an investor’s share of the Company’s interest, and (ii) certain gains from the disposition of investment property, over the expenses directly connected with the production of such investment income). A non-corporate investor’s net capital gain from the disposition of investment property will be included in clause (ii) of the preceding sentence and qualified dividend income will be included in clause (i) only to the extent that such investor elects to make a corresponding reduction in the amount of net capital gain and qualified dividend income that is subject to tax at the lower rate. (See “Tax on Capital Gains and Losses,” above). Any investment interest expense disallowed as a deduction in a taxable year solely by reason of the above limitation is treated as investment interest paid or accrued in the succeeding taxable year.; Unrelated Business Taxable Income. The Managing Member believes that, assuming that the activities of the Company are conducted as described in this Memorandum without Company indebtedness, income earned by the Company will not constitute “unrelated business taxable income” under Section 511 of the Code to employee benefit plans and other tax-exempt entities which purchase Interests, provided such Interests are not purchased with “acquisition indebtedness” by such plans and entities. The IRS has adopted this position in several private letter rulings. It is possible, however, that a court or the IRS could decide otherwise in the future (on the basis of either current or subsequently amended tax laws).; Non-U.S. Investors. Based on statutory “safe harbors,” the Company will not be considered to be engaged in a U.S. trade or business, so long as (i) it is not considered a dealer in stocks, securities, commodities, or derivatives and does not regularly offer to enter into, assume, offset, assign, or terminate positions in derivatives with customers, (ii) the Company’s U.S. business activities (if any) consist solely of investing in and/or trading stocks, securities, commodities, or derivatives, (iii) the commodities traded are of a kind customarily dealt in on an organized commodity exchange and the transactions are of a kind customarily consummated at such a place and (iv) any entity in which the Company invests that is treated as a disregarded entity or partnership for U.S. federal income tax purposes is not engaged in, or deemed to be engaged in, a U.S. trade or business. The Company intends to conduct its affairs in conformity with the statutory safe harbors.; Assuming the Company is not engaged in, or deemed to be engaged in, a U.S. trade or business, non-U.S. investors (other than those described below) will generally not be subject to U.S. federal income tax on their allocable share of Company income and the gain realized on the sale or disposition of Interests. However, such non-U.S. investors will be subject to a 30% U.S. withholding tax on the gross amount of their allocable share of income that is (i) U.S. source interest income that falls outside the “portfolio interest” exception or other available exception to withholding tax, (ii) U.S. source dividend income, and (iii) any other U.S. source fixed or determinable annual or periodical gains, profits, or income.; Non-U.S. investors who are resident alien individuals of the U.S. (generally, individuals lawfully admitted for permanent residence, or who have a “substantial presence,” in the U.S.) or for whom their allocable share of Company income and gain and the gain realized on the sale or disposition of Interests is otherwise effectively connected with their conduct of a U.S. trade or business will be subject to U.S. federal income taxation on such income and gain.; In addition, in the case of a non-resident alien individual, any allocable share of capital gains will be subject to a 30% U.S. federal income tax (or lower treaty rate if applicable) if (i) such individual is present in the U.S. for 183 days or more during the taxable year and (ii) such gain is derived from U.S. sources. Although the source of such gain is generally determined by the place of residence of the non-U.S. investor, resulting in such gain being treated as derived from non-U.S. sources, source may be determined with respect to certain other criteria resulting in such gain being treated as derived from U.S. sources. Non-resident alien individuals should consult their tax advisors with respect to the application of these rules to their investment in the Company.; If, notwithstanding the Company’s intention, the Company were engaged in, or deemed to be engaged in, a U.S. trade or business, non-U.S. investors would also be deemed to be so engaged by virtue of their Interests. Such non-U.S. investors would be required to file a U.S. federal income tax return for such year and pay tax on the income and gain that is effectively connected with such U.S. trade or business at the tax rates applicable to similarly situated U.S. persons. In addition, any non-U.S. investor that is a corporation for U.S. federal income tax purposes may be required to pay a branch profits tax equal to 30% of the dividend equivalent amount for the taxable year.; The Company’s tax return, as filed with the IRS, will be required to include a list of all Members, including non- U.S. investors.; Company Audits. The tax treatment of Company-related items is determined at the Company level rather than at the investor level. The Managing Member has been appointed as “partnership representative” (as provided in Section 6223(a) of the Code) with the authority to determine the Company’s response to an audit. The limitations period for assessment of deficiencies and claims for refunds with respect to items related to the Company is three years after the Company’s return for the taxable year in question is filed, and the Managing Member has the authority to, and may, extend such period with respect to all investors. If an audit results in an adjustment, all investors may be required to pay additional taxes, interest and possibly penalties. There can be no assurance that the Company’s tax return will not be audited by the IRS or that no adjustments to such return will be made as a result of such an audit.; State and Local Taxes. In addition to the federal income tax consequences described above, the Company and the investors may be subject to various state, local and municipal taxes, including income, estate, inheritance or intangible property taxes. Certain of such taxes could, if applicable, have a significant effect on the amount of tax payable in respect of an investment in the Company. Additionally, taxable income for state and local purposes may differ from federal taxable income; therefore, an investor may be liable for state or local tax even though he or it has no federal income tax liability attributable to his or her investment in the Company. An investor’s distributive share of the profits of the Company may be required to be included in determining reportable income for state or local tax purposes, and state and local taxation of gains and losses from Section 1256 Contracts may be inconsistent with the treatment of such gains and losses for federal income tax purposes. Investors must consult their own advisers regarding the possible applicability of state, local or municipal taxes to an investment in the Company.; Except as otherwise set forth, the foregoing statements regarding the federal income tax consequences to the investors of an investment in the Company are based upon the provisions of the Code as currently in effect and the existing administrative and judicial interpretations thereunder. No assurance can be given that administrative, judicial or legislative changes (other than those discussed above) will not occur that would make the foregoing statements incorrect or incomplete.; The foregoing discussion is not intended as a substitute for careful tax planning, particularly since certain of the income tax consequences of an investment in the Company may not be the same for all taxpayers. ACCORDINGLY, PROSPECTIVE INVESTORS IN THE COMPANY ARE URGED TO CONSULT THEIR TAX ADVISERS WITH SPECIFIC REFERENCE TO THEIR OWN TAX SITUATION UNDER FEDERAL LAW AND THE PROVISIONS OF APPLICABLE STATE, LOCAL AND OTHER LAWS BEFORE SUBSCRIBING FOR MEMBERSHIP INTERESTS.; ANY DISCUSSION OF U.S. FEDERAL TAX ISSUES SET FORTH IN THIS MEMORANDUM IS NOT INTENDED OR WRITTEN TO BE RELIED UPON, AND CANNOT BE RELIED UPON, BY ANY INVESTOR FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON INVESTORS UNDER THE INTERNAL REVENUE CODE; (B) SUCH DISCUSSION IS WRITTEN TO SUPPORT THE PROMOTION OR MARKETING BY THE COMPANY AND THE MANAGING MEMBER OF THE INTERESTS; (C) INVESTORS ARE NOT TO CONSTRUE THE CONTENTS OF THIS MEMORANDUM OR ANY PRIOR OR SUBSEQUENT COMMUNICATIONS FROM THE COMPANY OR ITS AGENTS AS TAX, LEGAL, OR INVESTMENT ADVICE; AND (C) INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
CERTAIN ERISA CONSIDERATIONS: General. Persons who are fiduciaries with respect to an employee benefit plan or other arrangement subject to ERISA or who are fiduciaries with respect to a plan (e.g., an IRA or Keogh Plan), which is not subject to ERISA but is subject to the prohibited transaction rules of Section 4975 of the Code (such employee benefit plans or plans being referred to herein as “Plans” and such fiduciaries with investment discretion being referred to herein as “Plan Fiduciaries”), should consider, among other matters, the matters described below before determining whether to invest in the Company.; Certain ERISA Considerations. ERISA imposes certain responsibilities on persons who are fiduciaries with respect to an ERISA Plan. Subject to the limitations applicable to investors generally, Interests may be purchased by Plans. In considering whether to invest assets of a Plan in the Company, each Plan Fiduciary must give appropriate consideration to the facts and circumstances that are relevant to an investment in the Company, including the Plan’s particular circumstances and the role an investment in the Company plays in the Plan’s investment portfolio. Each Plan Fiduciary, before deciding to invest in the Company, must be satisfied that investment in the Company is a prudent investment for the Plan, that the investments of the Plan, including the investment in the Company, are diversified so as to minimize the risks of large losses and that an investment in the Company is consistent with the Plan Fiduciary’s responsibilities and complies with the limitations set forth in Plan documents, including any trust, custodial agreement, or investment policy, documents of the Plan, including any trust, custodial agreement, or investment policy, and any special constraints imposed by the terms of such Plan and applicable federal, state, or other law. If an investment in the Company is permitted by the Plan documents, the party acting for the Plan will generally be subject to rules that require Plan investments to be prudent in the context of the Plan’s purposes, consistent with the terms of the Plan documents, appropriately diversified, and sufficiently liquid to meet the Plan’s need for liquidity. There may be issues as to whether an investment in the Company and its underlying investments are “prudent,” whether the retirement plan is diversified, and whether a plan’s need for liquidity has been balanced against the restrictions on transferability and the lack of liquidity associated with an investment in the Company. Further, it is possible that the purchase of Interests may be or become a “prohibited transaction.” It is recommended that legal counsel be consulted by such a retirement plan before investing in the Company. Neither the Company nor the Managing Member makes any representation with respect to whether the Company is a suitable investment for any such Plan or provides any legal advice regarding that investment. Each Plan Fiduciary is particularly advised to read and seek further advice concerning material in this Memorandum that addresses the nature, volatility, diversification and liquidity of the Company’s investments.; EACH PLAN FIDUCIARY CONSIDERING ACQUIRING INTERESTS IN THE COMPANY MUST CONSULT ITS OWN LEGAL AND TAX ADVISERS BEFORE DOING SO.; Restrictions on Investments by Benefit Plan Investors. ERISA and a regulation issued thereunder contain rules for determining when an investment by a Plan in an entity will result in the underlying assets of the entity being assets of the Plan for purposes of ERISA and Section 4975 of the Code (i.e., “plan assets”). Those rules provide that assets of an entity will not be plan assets of a Plan which purchases an interest therein if the investment by all “benefit plan investors” is not “significant” or certain other exceptions apply. The term “benefit plan investors” includes all Plans (i.e., all “employee benefit plans” as defined in and subject to the fiduciary responsibility provisions of ERISA and all “plans” as defined in and subject to Section 4975 of the Code), and all entities that hold “plan assets” (each, a “Plan Assets Entity”) due to investments made in such entities by already described benefit plan investors. ERISA provides that a Plan Assets Entity is considered to hold plan assets only to the extent of the percentage of the Plan Assets Entity’s equity interests held by benefit plan investors. In addition, all or a portion of an investment made by an insurance company using assets from its general account may be treated as a benefit plan investor. Investments by benefit plan investors will be deemed not significant if benefit plan investors own, in the aggregate, less than twenty five percent (25%) of the total value of each class of equity interests of the entity (disregarding the investments of persons with discretionary authority or control over the assets of such entity, of any person who provides investment advice for a fee, whether direct or indirect, with respect to such assets, and “affiliates” (as defined in the regulations issued under ERISA) of such persons; provided, however, that under no circumstances are investments by benefit plan investors excluded from such calculation).; If the underlying assets of the Company were to be considered plan assets of a benefit plan investor, the Managing Member of the Company would be a fiduciary under ERISA and/or the Code and the transactions of the Company would be subject to the prohibited transaction rules of ERISA and the Code. In order to avoid causing assets of the Company to be “plan assets,” the Managing Member restricts the aggregate investment by benefit plan investors to under twenty five percent (25%) of the total value of each class of equity interests of the Company (not including the investments of the Managing Member, any person who provides investment advice for a fee (direct or indirect) with respect to the assets of the Company, and any entity (other than a benefit plan investor) that is directly or indirectly through one or more intermediaries controlling, controlled by or under common control with any of such entities (including a partnership or other entity for which the Managing Member is the general partner, investment adviser, or provides investment advice), and each of the principals, officers and employees of any of the foregoing entities who has the power to exercise a controlling influence over the management or policies of such entity or of the Company). Furthermore, because the twenty five percent (25%) test is on-going, it not only restricts additional investments by benefit plan investors, but also can cause the Managing Member to require that existing benefit plan investors redeem their Interests from the Company in the event that other investors redeem. If rejection of subscriptions or such mandatory redemptions are necessary, as determined by the Managing Member, to avoid causing the assets of the Company to be “plan assets,” the Managing Member will effect such rejections or withdrawals in such manner as the Managing Member, in its sole discretion, determines.; Ineligible Purchasers. In general, Interests may not be purchased with the assets of a Plan if the Managing Member, any selling agent or any of their respective affiliates or any of their respective employees either: (a) has investment discretion with respect to the investment of such plan assets; (b) has authority or responsibility to give or regularly gives investment advice with respect to such plan assets, 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 such plan assets and that such advice will be based on the particular investment needs of the Plan; or (c) is an employer maintaining or contributing to such Plan. A party that is described in clause (a) or (b) of the preceding sentence is a fiduciary under ERISA and the Code with respect to the Plan, and any such purchase might result in a “prohibited transaction” under ERISA and the Code.; Except as otherwise set forth, the foregoing statements regarding the consequences under ERISA and the Code of an investment in the Company are based on the provisions of the Code and ERISA as currently in effect, and the existing administrative and judicial interpretations thereunder. No assurance can be given that administrative, judicial, or legislative changes will not occur that may make the foregoing statements incorrect or incomplete.; ACCEPTANCE OF SUBSCRIPTIONS ON BEHALF OF PLANS IS IN NO RESPECT A REPRESENTATION BY THE MANAGING MEMBER OR ANY OTHER PARTY RELATED TO THE COMPANY THAT THIS INVESTMENT MEETS THE RELEVANT LEGAL REQUIREMENTS WITH RESPECT TO INVESTMENTS BY ANY PARTICULAR PLAN OR THAT THIS INVESTMENT IS APPROPRIATE FOR ANY PARTICULAR PLAN. THE PERSON WITH INVESTMENT DISCRETION SHOULD CONSULT WITH HIS OR HER ATTORNEY(S) AND FINANCIAL ADVISER(S) AS TO THE PROPRIETY OF AN INVESTMENT IN THE COMPANY IN LIGHT OF THE CIRCUMSTANCES OF THE PARTICULAR PLAN.; Each person who acts for a Plan must recognize its fiduciary duties with respect to the particular Plan, whether or not the Plan’s participation in the Company is “significant” within the meaning of the applicable regulations regarding plan assets. EVEN IF THE MANAGING MEMBER BECOMES A FIDUCIARY OF A PLAN WITH RESPECT TO THE UNDERLYING ASSETS OF THE COMPANY, THE PERSON ACTING FOR THE PLAN AGREES, BY INVESTING IN THE COMPANY, THAT IT, AND NOT THE MANAGING MEMBER, WILL BEAR THE FIDUCIARY RESPONSIBILITY TO THE PLAN WITH RESPECT TO THE OVERALL PRUDENCE, LIQUIDITY AND DIVERSIFICATION OF THE UNDERLYING ASSETS (INCLUDING THE SPECIFIC INVESTMENTS, AS THEY MAY BE CONSTITUTED FROM TIME TO TIME) OF THE COMPANY. This allocation of fiduciary responsibility to the person acting for the Plan recognizes that the Managing Member will not necessarily make an individual determination whether particular investments of the Company meet the fiduciary standards of ERISA with respect to each Plan, and the Managing Member will rely on the express and implied representation by the person acting for the Plan that it has determined that the Plan’s continuing investment in the underlying assets of the Company satisfies ERISA’s prudence requirement and other fiduciary responsibilities. The acceptance of the fiduciary responsibility for the underlying investments of the Company by the person acting for the Plan is an express condition of the Plan’s acquisition and holding of an interest in the Company.; Employee benefit plans not subject to ERISA and/or the Code, such as governmental, church and non-United States plans, may be subject to laws regulating employee benefit plans that contain rules similar to ERISA and may contain other rules relating to permissible investments. Before making an investment in the Company, such plans should conclude that an investment in the Company would satisfy all such laws. In addition, each of these plans agrees, by investing in the Company, that it, and not the Managing Member, will bear the fiduciary responsibility to the employee benefit plan with respect to the overall prudence, liquidity and diversification of the underlying assets (including the specific investments, as they may be constituted from time to time) of the Company. The acceptance of the fiduciary responsibility for the underlying investments of the Company by the person acting for the plan is an express condition of the plan’s acquisition and holding of Interests in the Company.
THE ADMINISTRATOR: NAV Consulting, Inc. (the “Administrator” or “NAV”) has been engaged as the administrator of the Company pursuant to a Service Agreement entered into with the Company (the “NAV Agreement”). The Administrator is responsible for, among other things, calculating the Company’s net asset value, performing certain other accounting, back-office, data processing, processing subscriptions, redemptions and transfer activities of investors in the Company, certain anti-money laundering functions and related administrative services.; The NAV Agreement provides that the Administrator shall not be liable to the Company, any investor or any other person in absence of finding of willful misconduct, gross negligence, or fraud on the part of NAV. Furthermore, the Company shall indemnify and hold harmless the Administrator, its affiliates, and their respective officers, directors, shareholders, employees, agents and representatives (collectively, the “NAV Parties”) from and against any liability, damages, claims, loss, cost or expense, including, without limitation, reasonable legal fees and expenses (individually, “Loss” and collectively, “Losses”) arising from, related to, or in connection with the services provided to the Company pursuant to the NAV Agreement, unless any such Losses are the direct result of the willful misconduct, gross negligence or fraud of NAV. In no event shall NAV have any liability to the Company, any investor or any other person or entity which seeks to recover alleged damages or losses in excess of the fees paid to NAV by the Company in the two years preceding the occurrence of any loss, nor shall NAV be liable for any indirect, incidental, consequential, collateral, exemplary or punitive damages, including lost profits, revenue or data, regardless of the form of the action or the theory of recovery, even if NAV has been advised of the possibility of such damages or such damages were foreseeable. Any claim brought against NAV in connection with the NAV Agreement will be barred unless it is initiated within two years of the earlier of the disclosure of the event which is the subject of such claim or the date that the party advancing such claim knew or could with due inquiry have known of such event.; NAV shall not be liable to the Company, any investor or any other person for the actions or omissions of any agent, contractor, consultant or other third party performing any portion of the services under the NAV Agreement absent a finding of gross negligence or fraud on the part of NAV in appointing such agent, contractor, consultant or other third party.; NAV shall not be liable to the Company, any investor or any other person for actions or omissions made in reliance on instructions from the Company or advice of legal counsel.; The services provided by NAV are purely administrative in nature. NAV has no responsibilities or obligations other than the services specifically listed in the NAV Agreement. No assumed or implied legal or fiduciary duties or services are accepted by or shall be asserted against NAV. NAV does not provide tax, legal or investment advice. NAV has no duty to communicate with investors other than as set forth in Exhibit A of the NAV Agreement. NAV does not have custody of the Company’s assets, it does not verify the existence of, nor does it perform any due diligence on the Company’s underlying investments. In connection with the payment processing functions, NAV shall not be responsible for performance of the due diligence on payment recipients other than in connection with payments for investors’ withdrawals from the Company, which are subject to anti-money laundering review functions of the services.; The NAV Agreement also provides that it is the obligation of the Company’s management, and not of NAV, to review, monitor or otherwise ensure compliance by the Company with the investment policies, restrictions or guidelines applicable to it or any other term or condition of the Company’s offering documents and with laws and regulations applicable to its activities. Moreover, the Company’s management’s responsibility for the management of the Company, including without limitation, the valuation of the Company’s assets and liabilities, the oversight of the services provided by NAV and the review of work product delivered by NAV shall not be affected by or limited by any of the services provided by NAV.; NAV is entitled to rely on any information, including valuation information, received by NAV from the Company, the Company’s management or other parties, including without limitation, broker-dealers and data vendors, without independent verification, audit, review, inquiry, or performing other due diligence and NAV shall not be liable to the Company, any investor or any other persons for losses suffered as a result of NAV relying on incorrect information. NAV has no responsibility to review, independently value, verify, compare to other pricing sources or otherwise perform due diligence on the valuation information. NAV may accept such information as accurate and complete without independent verification. Furthermore, NAV shall not be liable to the Company, any investor or any other person for any loss incurred as a result of an error or inaccuracy from any pricing or valuation service or data service provider or delay, interruption in service or failure to perform of any pricing or valuation service or data service provider used by NAV.; The information on investor statements and other reports produced by NAV shall not be considered an offer to sell or a solicitation of an offer to purchase any interest in the Company, nor may it be used to induce or recommend the purchase or holding of any interest in the Company.; The NAV Agreement bars non-parties from asserting third party beneficiary claims against NAV.; The Company pays NAV fees out of the Company’s assets, generally based upon the size of the Company, in accordance with NAV’s standard schedule for providing similar services, subject to a monthly minimum.; Either party may terminate the NAV Agreement on 90 days’ prior written notice as well as on the occurrence of certain events.; Investors may review the NAV Agreements by contacting the Company; provided, that NAV reserves the right not to disclose the fees payable thereunder.; NAV is not responsible for the preparation of this Memorandum or the activities of the Company and therefore accepts no responsibility for any information contained in any other section of this Memorandum.; Administrator Contact Information; NAV Consulting, Inc.; 1 Trans Am Plaza Drive, Suite 400; Oakbrook Terrace, Illinois 60181; T: +1 630.954.1919; F: +1.630.954.1945; main@navconsulting.net; Where to Send Subscriptions and Redemptions; NAV Consulting, Inc.; Attention: Transfer Agency Services; 1 Trans Am Plaza Drive, Suite 400; Oakbrook Terrace, Illinois 60181; United States; T: +1.630.954.1919; F: +1.630.596.8555; transfer.agency@navconsulting.net; Please note email is always preferred to speed response and avoid delays.
AUDITOR: The Company has retained the public accounting firm of Michael Coglianese, CPA, P.C. (the “Auditor”) as its auditor.; The Company’s audited Annual Report will be distributed to all investors electronically.
PLAN OF DISTRIBUTION: The Offering. The Company commenced operations in June 2020. The Company is offering its limited liability company interests (“Interests”) on a continuous basis. No interest will be paid on subscriptions.; Interests will be offered on an ongoing basis as of the opening of business on the first business day of each month, in the sole discretion of the Managing Member. Written subscription agreements, along with subscription payment, generally must be received by the Administrator at least five (5) business days prior to month-end in order to be accepted for the following month (or a shorter period to the extent permitted by the Managing Member). Late subscriptions may be held over and invested on the next subscription date. Except as provided by state securities regulations, all subscriptions are irrevocable. Payment for accepted subscriptions should be transmitted directly to the Company’s account by check or wire transfer. Subscription funds sent by wire and checks made out to the Company will be deposited into a non-interest-bearing bank account on behalf of the Company.; The Interests are offered for sale by the Managing Member, and may also be offered through additional selling agents properly registered under applicable laws. Subscription Documents (which are included herewith as Exhibit B) should be completed, executed and forwarded to the Administrator, for acceptance by the Managing Member. The Managing Member will notify any rejected subscriber of the rejection of his or her subscription as soon as practicable.; The Interests offered by the Company are subject to prior subscription and to certain other conditions.; There is no limit to the maximum amount of subscriptions which may be sold. Limits may, however, in the sole discretion of the Managing Member, be placed on the total amounts raised in the future.; Investor contributions to the Company are generally invested in the Company as of the first business day of the month in which Interests are purchased (subject to deferral to the next subscription date for late subscriptions). Investors receive no interest on their investment for the period from the date the subscription for Interests is submitted until the time the investment in the Company is actually made. Any interest earned will inure to the benefit of the Company and its then investors.; No certificates will be issued for the Interests.; Investment Requirements. Interests are offered only to eligible investors. Each investor must represent and warrant in his or her Subscription Documents that, among other things, he or it has reviewed and understands the risks of an investment in the Company, and has the financial knowledge and experience to evaluate such investment. In addition to being financially sophisticated, each subscriber must be able to bear the substantial risks of an investment in the Company and be able to afford to lose his or its entire investment. To purchase Interests of the Company, a prospective investor is generally required to certify that the Interests are being acquired by a person who is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and a qualified eligible person as defined in CFTC Regulation 4.7 promulgated under the Commodity Exchange Act. Existing investors seeking to purchase additional Interests will be required to qualify as Eligible Investors at the time of the additional purchase. The Company may from time to time impose stricter or less stringent eligibility requirements.; INVESTORS WITH QUESTIONS AS TO WHETHER THEY QUALIFY AS AN “ACCREDITED INVESTOR” OR “QUALIFIED ELIGIBLE PERSON” ARE URGED TO REFER SUCH QUESTIONS TO THEIR OWN LEGAL ADVISERS.; Subscription Procedure. To subscribe for Interests, an investor must submit the Subscription Documents and send a check or wire funds in the amount of the investor’s subscription to the Company generally at least five (5) business days before the opening of business on the first business day of the month in which Interests are purchased (or a shorter period to the extent permitted by the Managing Member). Late subscriptions may be held over and invested on the next subscription date. Wire transfer instructions are included in the Subscription Documents.; In order to purchase an Interest, an investor must (1) date, complete and execute a copy of the Subscription Documents and (2) deliver such executed Subscription Documents to the Administrator. After a subscription is received, the Managing Member will promptly notify the subscriber whether his or her subscription will be accepted or rejected. Unless a subscriber is notified that his or her subscription has been rejected, such subscriber must deliver a check payable to “Viseroij Investment Fund LLC” in the amount of his or her subscription to the Managing Member or wire funds in such amount to the Company’s account. Subscription funds will be deposited into a non-interest- bearing bank account on behalf of the Company at U.S. Bank.; The minimum subscription is two hundred fifty thousand U.S. Dollars ($250,000). The Managing Member, in its sole discretion, may permit a smaller minimum investment in special cases. The Managing Member may also accept a subscription only in part, and will promptly notify any affected subscriber.; The Managing Member permits a prospective investor to purchase an Interest only if the Managing Member believes that such investor has such knowledge and experience in financial matters that he or it is capable of evaluating the merits and risks of an investment in the Company. The Managing Member may require prospective subscribers to furnish evidence of their possessing such knowledge and experience in addition to the Subscription Documents.
LEGAL: There have been no material administrative, civil or criminal actions against the Company, the Managing Member, or its principals and none is pending or on appeal.
ADDITIONAL INFORMATION: Access to Information. The offices of the Managing Member are located at 64 Club Rd, Riverside, CT 06878. Telephone: (203) 274-1118. Prospective investors are invited to review any materials available to the Managing Member reasonably relating to: the Company; the Company’s operations; this offering; the Managing Member’s history and experience; and any other matters relating to this offering. Representatives of the Managing Member will answer all inquiries from prospective investors relating thereto. All such materials will be made available at any mutually convenient location at any reasonable hour after reasonable prior notice. The Managing Member will afford prospective investors the opportunity to obtain any additional information necessary to verify the accuracy of any representations or information set forth in this Memorandum or any exhibits attached hereto to the extent that the Company or the Managing Member possesses such information or can acquire it without unreasonable effort or expense. Such review is limited by the proprietary and confidential nature of the trading strategy or strategies to be utilized by the Company and by the confidentiality of personal, non-public information relating to other investors.; PROSPECTIVE INVESTORS ARE URGED TO COMMUNICATE WITH THE MANAGING MEMBER AT THE ADDRESS AND TELEPHONE NUMBER SET FORTH ABOVE, WITH ANY QUESTIONS THEY MAY HA VE.; Reports. The Managing Member provides investors with monthly statements of account, an annual report containing financial statements certified by an independent public accountant and certain federal tax income information. The Managing Member will not have definitive tax information available for investors until the Company receives all necessary audit and tax information from the Auditor.; Confidentiality. Any and all performance information and other confidential or proprietary information distributed to the investors (whether delivered in writing or through electronic means) by the Company or Managing Member must be held in confidence by the recipient investor and may not be disclosed to any third party (other than the investor’s authorized representatives, professional advisers and other persons who need access to such information to render advice concerning the investor’s investment in the Company) or used by the investor or any third party to whom the investor discloses such information for any purpose other than as reasonably necessary in connection with such Member’s Interests in the Company.; Investor Communications. Communications to investors will be sent to their registered addresses as set forth on the books of the Company. Any change in an investor’s registered address should be submitted in writing to the Managing Member.; Certain Definitions. All references in this Memorandum to: (a) “United States,” “U.S.A.,” and “U.S.” mean the United States of America, any state, territory, or possession thereof, any area subject to its jurisdiction, the District of Columbia, or any enclave of the United States government or its agencies or instrumentalities; (b) “dollar,” “U.S. dollar,” “$,” and U.S. $” mean the lawful currency of the United States of America; and (c) “business day” means any day which is not a Saturday or Sunday or a day on which banks in New York City, New York are authorized or obliged to close by law, regulation, or government or executive order.; Legal Counsel. Funkhouser Vegosen Liebman & Dunn Ltd., in Chicago, Illinois (“FVLD”) served as U.S. legal counsel to the Managing Member in connection with the organization of the Company and the preparation of this Memorandum. FVLD may continue to serve in such capacity in the future, but has not assumed any obligation to update this Memorandum. FVLD may advise the Managing Member in matters relating to the operation of the Company on an ongoing basis. FVLD does not represent and has not represented the prospective investors or the Company in the course of the organization of the Company, the negotiation of its business terms, the offering of the Interests or in respect of its ongoing operations. Prospective investors must recognize that, as they have had no representation in the organization process, the terms of the Company relating to themselves and the Interests have not been negotiated at arm’s length.; FVLD’s engagement by the Managing Member with respect to the Company is limited to the specific matters as to which it is consulted by the Managing Member and, therefore, there may exist facts or circumstances which could have a bearing on the Company’s (or the Managing Member’s) financial condition or operations with respect to which FVLD has not been consulted and for which FVLD expressly disclaims any responsibility. More specifically, FVLD does not undertake to monitor the compliance of the Managing Member and its affiliates with the investment program, valuation procedures and other guidelines set forth herein, nor does it monitor compliance with applicable laws. In preparing this Memorandum, FVLD relied upon information furnished to it by the Company and/or the Managing Member, and did not investigate or verify the accuracy and completeness of information set forth herein concerning the Managing Member, the Company’s service providers and their affiliates and personnel.
PERFORMANCE: The Company’s past performance history is available upon request from the Managing Member.
VISEROIJ INVESTMENT FUND LLC: AMENDED AND RESTATED; LIMITED LIABILITY COMPANY OPERATING AGREEMENT; This Limited Liability Company Operating Agreement (the “Agreement”) of Viseroij Investment Fund LLC (the “Company”) is made as of March 4, 2019, as amended and restated May 23, 2022, among Viseroij Capital Management LLC, a Delaware limited liability company (the “Managing Member”), as the Company’s managing member and each other party who shall execute a counterpart of this Agreement as a member or who becomes a party to this Agreement as a member by execution of a subscription agreement, a joinder agreement or otherwise, and who is shown on the books and records of the Company as a member (each, a “Member” and collectively, the “Members”). The Managing Member and the Members are hereinafter sometimes referred to collectively as “Members.”
WITNESSETH:: WHEREAS, the Company was formed as a limited liability company on March 4, 2019, by the filing of a Certificate of Formation with the Delaware Secretary of State, in accordance with the terms of the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.) (the “Act”); and; WHEREAS, the parties hereto agree that the terms and conditions of this Agreement shall govern, regulate and manage the affairs of the Company consistent with its Certificate of Formation and the laws of the State of Delaware;; WHEREAS, the Agreement is being amended and restated in order to authorize the issuance of an additional class of Interests;; NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:; 1. Formation and Name.; The name of the Company is “Viseroij Investment Fund LLC.” The Managing Member may change the name of the Company, or cause the Company to transact business under such other name as the Managing Member may designate. The Managing Member has executed and filed a Certificate of Formation in accordance with the provisions of the Act and may execute, file, record and publish, as appropriate, such amendments thereto, assumed name certificates and other documents as are or become necessary or advisable as determined by the Managing Member, including additional certificates, notices, statements or other instruments required by law for the operation of a limited liability company in all jurisdictions where the Company is qualified or authorized to do business as a foreign limited liability company, or as otherwise necessary to carry out the purpose of this Agreement and the business of the Company. The Certificate of Formation, any amendments thereto, and any further such certificates, notices, statements or other instruments need not be delivered to Members. The rights and liabilities of the Members shall be as provided in this Agreement and, to the extent not inconsistent with the provisions contained herein, in the Act.; 2. Principal Office.; The principal office of the Company shall be in care of the Managing Member, Viseroij Capital Management LLC, 64 Club Rd, Riverside, CT 06878, or such other place as the Managing Member may designate from time to time. The Managing Member may change the principal office of the Company at any time in accordance with the Act.; 3. Business Purpose, Objectives and Powers.; (a) Purpose and Objectives. The Company has been formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the laws of the State of Delaware. Without limiting the foregoing, the Company’s primary objective is to achieve capital growth through the speculative buying, selling, selling short and otherwise acquiring, holding, trading, disposing of, and dealing in Financial Instruments. As used in this Agreement, the term “Financial Instruments” means financial instruments and other rights and interests that may be traded by the Company, including futures contracts and options on futures contracts traded on or subject to the rules of U.S. and international exchanges or other boards of trade, equity securities of U.S. companies listed for trading on U.S. exchanges, swap contracts, forward contracts, currencies, interest rates, short-term debt instruments, money market funds, government securities or similar temporary investments, listed and over-the-counter options and other derivative instruments on all of the above instruments, rights to acquire the same of public and private issuers throughout the world, and such other instruments or interests as the Managing Member deems appropriate.; (b) Powers. The Company shall have the power to enter into, make and perform all contracts and other undertakings, and engage in all activities and transactions as may be necessary or advisable to achieving the Company’s purpose and objectives and the carrying out the business of the Company, including the power: to borrow money from banks, brokers or any of the Members, and to secure the payment of any obligations of the Company by hypothecation or pledge of all or part of the assets of the Company; to exercise all rights, powers, privileges and other incidents of ownership or possession with respect to the assets of the Company; to open, maintain and close bank, brokerage and other accounts; to maintain one or more offices within or without the United States; and to take such actions as the Managing Member may deem to be necessary or advisable in connection with the foregoing, including the retention of agents, independent contractors, attorneys, accountants and investment counselors, and the preparation and filing of all Company tax returns.; 4. Term, Fiscal Year, Tax Treatment and Dissolution.; (a) Term. The Company commenced on the day on which the Certificate of Formation was filed with the Delaware Secretary of State pursuant to the provisions of the Act and shall continue for a perpetual existence unless the Company is dissolved in accordance with the provisions of this Agreement.; (b) Fiscal Year. The fiscal year of the Company shall begin on January 1 of each year and end on the following December 31.; (c) Tax Treatment. The Company shall be treated as a partnership for federal income tax purposes.; (d) Dissolution. Except as otherwise required by the Act, the Company shall only be dissolved upon the occurrence of any of the following events:; (1) a determination by the Managing Member to terminate the Company;; (2) the withdrawal, dissolution, termination or court-decreed insolvency of the Managing Member (unless a new Managing Member has been substituted pursuant to Paragraph 10); or; (3) any event that shall make unlawful the continued existence of the Company or require termination of the Company.; Upon the first to occur of the above events, the Company shall terminate and be dissolved. Dissolution, payment of creditors and distribution of the Company assets shall be effected in accordance with the Act except that each Member shall share in the assets of the Company pro rata in accordance with their respective Interests (as defined below), less any amount owing by such Member to the Company.; 5. Continued Offering of Interests; Capital Accounts and Contributions.; (a) Interests. The limited liability company interests that the Members will hold in the Company (the “Interests”) may be issued in different classes and series. The Company is currently offering Class A Interests denominated in US Dollars and Class B Interests denominated in Australian Dollars, and it may offer additional classes denominated in other currencies. The Company will also issue non-voting, redeemable, participating limited liability company interests in the Company designated as special allocation Interests (the “Allocation Interests”) to the Managing Member as described in the Company’s private placement memorandum in effect from time to time.; The Company may create additional classes and series of Interests.; (b) Continued Offering of Interests. The Managing Member may, on behalf of the Company, offer and sell an unlimited number of additional Interests and admit additional Members to the Company on an ongoing basis, on such terms and at such times as the Managing Member shall determine in its sole discretion, in compliance with applicable law, and may take such actions and make such arrangements for the issue and sale of such Interests, if any, as it deems appropriate, without the further consent of the Members. The Managing Member may also decline to continue to offer or sell additional Interests or admit any person as a Member to the Company for any reason in its sole discretion without the consent of the Members. Without limiting the foregoing, in determining whether to admit a new Member or whether to permit an existing Member to purchase additional Interests, the Managing Member may, among other things, consider the implications of doing so under ERISA, the CEA and Treasury Regulation §1.7704-1(h) before admitting a Member.; (c) Capital Accounts and Contributions. A capital account shall be established for each Member. The initial balance of each Member’s capital account shall be the amount initially contributed to the Company by such Member. Any additional contributions by a Member for additional Interests shall be credited to such Member’s capital account. No Member shall be required to make additional contributions to the Company. No Member shall receive interest on his or her contribution of capital to the Company.; 6. Allocation of Profits and Losses.; (a) Classes of Interests. The Company offers Class A and Class B Interests and may offer additional classes of Interests in the future. At any time that Interests are held in more than one class, the allocations set forth in this Section 6 shall be determined separately for each class of Interests.; The Managing Member shall allocate expenses incurred by the Company to the Class that generated such expense. In the event that there are Company expenses that are not chargeable to a specific Class (e.g., expenses incurred for legal or accounting services that pertain to the Company as a whole), the Managing Member shall allocate such expenses among the Classes of Interests in accordance with their relative Net Asset Values at the time of such allocation.; (b) Net Asset Value. The “Net Assets” or “Net Asset Value” of the Company means, at any date, the value of all assets of the Company, including all cash and cash equivalents, accrued interest and the market value of all assets of the Company (including U.S. Treasury bills valued at costs plus accrued interest, the liquidating value (or cost of liquidation, as the case may be) of all equities, futures and options positions and the fair market value of all other assets of the Company), less all liabilities (including commissions and fees) and any accrued but unpaid expenses of the Company, determined on the accrual basis of accounting in accordance with U.S. generally accepted accounting principles, consistently applied.; (c) Allocations; Valuation Dates. As of the close of business (as determined by the Managing Member) on the last day of each month and on each subscription or redemption date, the following determinations and allocations shall be made.; (1) The Net Assets of the Company (after all fees and charges, if any) shall be determined.; (2) Any increase or decrease in the Net Assets (as determined in Paragraph 6(b)(1) above) as compared to the last such determination of Net Assets shall be credited or charged to the capital account of each Member in the ratio that the balance of each Member’s capital account bears to the balance of all of the capital accounts of the Members.; (3) The amount of any distribution paid by the Company to a Member and any amount paid to a Member upon redemption of an Interest, together with the Incentive Allocation (as defined in Paragraph 6(g) below), shall be charged to such Member’s capital account, provided that any fees paid to the Managing Member for services shall not reduce the Managing Member’s capital account.; (4) The balance of each Member’s capital account shall be determined.; Upon request, the Managing Member will advise any Member of the most recent calculation of Net Asset Value of such Member’s Interest (i.e., the balance of such Member’s capital account as of the last valuation date).; (d) Allocation of Profit and Loss for Federal Income Tax Purposes. As of the end of each fiscal year, the Company’s profit or loss shall be allocated among the Members for federal income tax purposes pursuant to the following subparagraphs.; (1) Items of operating income, including interest and items of operating expense, including, if applicable, legal, accounting and administrative expenses, shall be allocated to each Member by allocating such items which accrued during each accounting period among the persons who were Members during such accounting period in the ratio that each such Member’s capital account bears to all such Members’ capital accounts at the end of such accounting period.; (2) Net realized capital gain or loss from the Company’s trading activities shall be allocated separately with respect to each Member in the following manner:; (aa) For the purpose of allocating the Company’s net realized capital gain or loss among the Members, there shall be established a tax allocation account with respect to each outstanding Member. The initial balance of each allocation account shall be the amount contributed to the Company by the Member. Allocation accounts shall be adjusted as of the end of each fiscal year as follows:; (i) Each allocation account shall be increased by the amount of income allocated to the Member pursuant to subparagraph 6(c)(1) above and subparagraph 6(c)(2)(cc) below.; (ii) Each allocation account shall be decreased by the amount of expense or loss allocated to the Member pursuant to subparagraphs 6(c)(1) above and subparagraph 6(c)(2)(ee) below and by the amount of any distribution such Member has received (other than on redemption or withdrawal).; (iii) When a Member has redeemed or withdrawn partially or in full, the allocation account with respect to such Member shall be eliminated or reduced on a pro rata basis.; (bb) Net realized capital gain shall be allocated first to each Member who has redeemed all or part of his or her Interest during the fiscal year up to the excess, if any, of the amount received upon redemption of all or part of the Interest over the allocation account attributable to the redeemed Interest or portion thereof. If the gain to be so allocated to all Members who have redeemed all or part of their Interests during a fiscal year is less than the excess of all such amounts received upon redemption over all such allocation accounts, the entire capital gain for such fiscal year shall be allocated among all such Members in the ratio that each such Member’s excess bears to the aggregate excess of all such Members who redeemed all or part of his or her Interest during such fiscal year.; (cc) Net realized capital gain remaining after the allocation thereof pursuant to subparagraph 6(c)(2)(bb) shall be allocated next among all Members whose capital accounts are in excess of their tax allocation accounts in the ratio that each such Member’s excess bears to all such Members’ excesses. In the event that gain to be allocated pursuant to this subparagraph 6(c)(2)(cc) is greater than the excess of all such Members’ capital accounts over all such allocation accounts, the excess will be allocated among all Members in the ratio that each Member’s capital account bears to all Members’ capital accounts.; (dd) Net realized capital loss shall be allocated first to each Member who has redeemed all or part of his or her Interest during the fiscal year up to the excess, if any, of the allocation account attributable to the redeemed Interest or portion thereof over the amount received upon redemption of the Interest or portion thereof. If the loss to be so allocated to any Member who has redeemed all or part of his or her Interest during a fiscal year is less than the excess of all such allocation accounts over all such amounts received upon redemption, the entire capital loss for such fiscal year shall be allocated among all such Members in the ratio that each such Member’s excess bears to the aggregate excess of all such Members who redeemed all or part of his or her Interest during such fiscal year.; (ee) Net realized capital loss remaining after the allocation thereof pursuant to subparagraph 6(c)(2)(dd) shall be allocated next among all Members whose tax allocation accounts are in excess of their capital accounts in the ratio that each such Member’s excess bears to all such Members’ excesses. In the event that loss to be allocated pursuant to this subparagraph 6(c)(2)(ee) is greater than the excess of all such allocation accounts over all such Members’ capital accounts, the excess loss will be allocated among all Members in the ratio that each Member’s capital account bears to all Members’ capital accounts.; (ff) In the event that an Interest has been assigned with the consent of the Managing Member, the allocations prescribed by this Paragraph 6(c) shall be made with respect to such Interest without regard to the assignment except that in the year of assignment the allocations prescribed by Paragraph 6(c)(1) shall be divided between the assignor and the assignee based on the number of whole months each held the assigned Interest.; (gg) The allocations of profit and loss to the Members in respect of the Interest shall not exceed the allocations permitted under Subchapter K of the Internal Revenue Code of 1986, as amended (the “Code”), as determined by the Managing Member, whose determination shall be binding. The purpose of the foregoing allocations is to allocate taxable income so as nearly as possible to have Members’ tax basis accounts equal to their capital accounts as provided by the Code, including a “Qualified Income Offset.”; (3) For the purposes of this Paragraph 6(c), net realized capital gain or loss shall include any gain or loss required to be taken into account under Sections 988, 1221 and 1256 of the Code.; (e) Expenses. The Company pays all of the costs and expenses associated with the Company’s operations, including, without limitation: (i) all organization expenses and all expenses related to the initial and ongoing offering of Interests and filing fees; (ii) all taxes, imposed on the Company (or that the Company is required to withhold or pay with respect to any of its Members); (iii) all brokerage fees and commission expenses or other expenses of transactions engaged in by the Company; (iv) all auditing and tax return preparation expenses incurred in connection with the Company; (v) all legal fees and expenses; (vi) all accounting fees and expenses; (vii) all research fees and expenses, including research-related travel; (viii) all exchange, board of trade or other trading or execution facility membership or participation expenses; (ix) all bookkeeping, recordkeeping, administration and clerical fees and expenses; (x) all market data, newswire and data processing expenses, and connectivity charges; (xi) the Company’s proportionate share of all IT Overhead Expenses (as defined below); (xii) all custody charges; (xiii) the expense of errors and omissions and other appropriate insurance coverage with respect to the Company and its management and operations; (xiv) all other ordinary and out-of-pocket expenses of the Company; (xv) fees and expenses of preparing and submitting regulatory filings (e.g., Blue Sky filings and CFTC/NFA Form CPO-PQR) and other compliance related expenses, and (xvi) all extraordinary expenses, including, without limitation, (A) litigation expenses, including expenses of litigation and settlement in connection with any portfolio investment, (B) expenses of registering the Company (but not the Managing Member) with any federal or state agency under the requirements of any applicable law, and (C) expenses incurred in connection with the indemnification of the Managing Member and any other person covered under this Agreement. The Company will reimburse the Managing Member for all such costs and expenses, if any, borne by the Managing Member on behalf of the Company.; “IT Overhead Expenses” means all information and technology-related expenses incurred by or on behalf of the Company, including, but not limited to, fees, expenses and upgrade costs relating to hardware, infrastructure, software development, exchange API development, systems engineering, development and operation, development of risk management programs, trading tools, quote and order logic and management programs, hedging tools, and analytical programs, and other similar items. The Company will amortize its organizational and initial offering costs over a three-year period (36 months) from the Company’s commencement date and to that extent, the Company’s accounting treatment will diverge from U.S. generally accepted accounting principles (“GAAP”).; (f) Limited Liability of Members. Interests, when purchased in accordance with this Agreement, shall, except as otherwise provided by law, be fully paid and nonassessable. Any provisions of this Agreement to the contrary notwithstanding, no Member, including the Managing Member, shall be liable for Company obligations in excess of the capital contributed by such Member, plus such Member’s share of undistributed profits and assets (including any obligation of such Member, as required by law, under certain circumstances to return to the Company distributions and returns of contributions).; (g) Return of Members’ Capital Contributions and Distributions. Except to the extent that a Member shall have the right to withdraw capital in accordance with the terms of this Agreement, no Member shall have any right to demand the return of any capital contribution or any profits added thereto, except upon termination and dissolution of the Company. In no event shall a Member be entitled to demand or receive property other than cash. Subject only to the express terms of this Agreement and applicable law, the Managing Member shall have sole discretion in determining what distributions of profits and income, if any, shall be made to the Members.; (h) Incentive Allocation. The Company will allocate to the Managing Member (as a Member of the Company) an incentive allocation (the “Incentive Allocation”) and each Interest other than the Allocation Interest will be subject to its share of the Incentive Allocation, as further described in the Company’s private placement memorandum in effect from time to time. The Incentive Allocation shall be equal to twenty percent (20%) of the new net profit (as defined in such private placement memorandum and subject to a high-water mark), if any, attributable to each such Interest, calculated on an Interest-by-Interest basis, payable at the end of each calendar quarter (and on any other date upon which there is a withdrawal or redemption of Interests as permitted by the Managing Member in its sole discretion) as provided for in said private placement memorandum. The Managing Member may, in its sole discretion, reduce, waive or rebate the Incentive Allocation with respect to any Member, including principals, employees and affiliates of the Managing Member, without entitling any other Member to the same or similar or identical reduction, waiver or rebate, and shall not be required to obtain the consent or approval of, or give notice to, any Member in connection therewith.; 7. Management of the Company and Fees.; (a) General Authority of Managing Member. The business and affairs of the Company shall be managed by one or more managers. The sole initial manager shall be the Managing Member. The Managing Member, to the exclusion of all Members and other persons, shall control, conduct and manage the business of the Company in the sole discretion of the Managing Member. Without limiting the foregoing, the authority of the Managing Member to act on behalf of the Company shall include the authority to:; (i) execute all documents on behalf of the Company, and enter into and terminate any and all forms of agreement on behalf of the Company;; (ii) draw checks or other orders for the payment of money and otherwise expend the capital and revenues of the Company in furtherance of the business of the Company;; (iii) engage and compensate on behalf of the Company, from funds of the Company, and enter into joint ventures, partnerships, commodity pools or employment, independent contractor or other agreements on such terms with such persons, firms or corporations, including the Managing Member and any affiliated person or entity, as the Managing Member in its sole judgment shall deem advisable for the conduct and operation of the business of the Company;; (iv) execute for and on behalf of the Company any filing, notice, form or other document under any federal or state securities law and take any additional action as it shall deem necessary or desirable to effectuate the offering of Interests;; (v) accept or reject, in the Managing Member’s sole discretion for any reason whatsoever, subscriptions for Interests in the Company;; (v) accept or reject, in the Managing Member’s sole discretion for any reason whatsoever, subscriptions for Interests in the Company;; (vii) maintain records and accounts of all operations and expenditures and furnish the Members with such reports as are reasonable or required;; (viii) take and hold all property of the Company, real, personal and mixed, in the name of the Company, or in the name of a nominee authorized by the Managing Member;; (ix) sell, lease, exchange or otherwise dispose of all or any portion of the property of the Company;; (x) negotiate and settle any and all claims and disputes, including any tax related claims and disputes and claims and disputes with governmental and regulatory bodies, and institute, defend and settle litigation and other proceedings arising therefrom, and give receipts, waivers, releases and discharges with respect to all of the foregoing and any matters incidental thereto;; (xi) purchase and maintain insurance, at the cost and expense of the Company, on behalf of any one or more person(s) against any liability that may be asserted against or expenses that may be incurred by such person(s) in connection with the activities of the Company, regardless of whether the Company would have the power to indemnify any such person(s) against such liability under the provisions of this Agreement;; (xi) purchase and maintain insurance, at the cost and expense of the Company, on behalf of any one or more person(s) against any liability that may be asserted against or expenses that may be incurred by such person(s) in connection with the activities of the Company, regardless of whether the Company would have the power to indemnify any such person(s) against such liability under the provisions of this Agreement;; (xiii) determine the accounting methods and conventions to be used in the preparation of the tax returns, and make such elections under the tax laws of the United States, the several states and other relevant jurisdictions as to the treatment of items of income, gain, loss, deduction and credit of the Company, or any other method or procedure related to the preparation of such returns;; (xiv) pay or authorize the payment of distributions to the Members, if any;; (xv) manage, supervise and effect the winding up, liquidation and dissolution of the Company if an event causing termination of the Company occurs; and; (xvi) take such further actions as the Managing Member may deem to be necessary or advisable to achieve the Company’s objectives and carry out its business as described in Paragraph 3.; No person dealing with the Managing Member shall be required to determine its authority to make any undertaking on behalf of the Company, nor to determine any fact or circumstance bearing upon the existence of the Managing Member’s authority to bind the Company and act on its behalf.; (b) Specific Trading Authority of Managing Member. Without limiting in any way the general authority described in Paragraph 7(a), the Managing Member shall have sole authority to make all trading and investment decisions on behalf of the Company in the Managing Member’s sole discretion, including the authority to:; (i) open, maintain, conduct and close, in the name of the Company, bank accounts and investment and trading accounts;; (ii) enter into one or more customer agreements with one or more futures commission merchants, clearing firms, prime brokers, introducing brokers, executing brokers, dealers, custodians and counterparties (including those who may be affiliates of the Managing Member) (“Brokers”), and subject to applicable laws, enter into principal and agency cross transactions with one or more Brokers;; (iii) cause the Company to buy, sell, hold, otherwise acquire or dispose of (short or long) various Financial Instruments;; (iv) vote all proxies with respect to Financial Instruments held by the Company;; (v) borrow money to acquire Financial Instruments, leverage existing Financial Instruments, and pledge assets of the Company in support of any financing;; (vi) act as the Company’s commodity pool operator, or designate and appoint other persons (including affiliates of the Managing Member) as the Company’s commodity pool operator and delegate to such person all of the Managing Member’s rights, powers, duties and obligations as the Company’s commodity pool operator;; (vii) act as broker, including introducing broker, and perform other services for the Company, charging such commissions and fees to the Company, and receiving such portion of any brokerage commissions paid by the Company, as are deemed reasonable and appropriate by the Managing Member and are disclosed to the Members;; (viii) make, or designate and appoint other persons to make, directly or indirectly, all or any portion of the trading and investment decisions of the Company, including affiliates of the Managing Member, for the purposes set forth in this Agreement; and; (ix) employ or engage trading managers or advisors, investment managers or advisors, consultants, experts, professionals, accountants, administrators, auditors, attorneys, Brokers, banks and other financial institutions, engineers, custodians, escrow agents, selling and placement agents and/or any other third parties, including affiliates of the Managing Member, deemed necessary by the Managing Member, and terminate such employment or engagement.; (c) Selection of Brokers. In selecting Brokers for the Company for the execution of transactions in Financial Instruments, the Managing Member may consider whatever factors it deems relevant and proper under the circumstances, including the value of any or all of the following provided by the Broker or paid for by the Broker (either by direct or reimbursement cash payments or by commissions, or any other means) and provided by others: brokerage or research, other products and services, and, subject to applicable laws, investor referrals.; (d) Partnership Representative. The Managing Member is hereby appointed “partnership representative” (as provided in Section 6223(a) of the Internal Revenue Code) of the Company, and it is agreed and acknowledged that the Managing Member may, in its discretion, determine how to classify any item of income, loss, gain or expense of the Company and any fees or allocations in connection with any business arrangement in which the Company may engage, for federal income tax purposes.; (e) Management Fee Payable to the Managing Member. Each Interest other than an Allocation Interest will pay the Managing Member a monthly management fee. The management fee shall be equal to one twelfth (1/12) of two percent (2%) (two percent (2%) per annum) of the total Net Asset Value of the Company represented by such Interest as provided for in the Company’s private placement memorandum in effect from time to time. The Managing Member may, in its sole discretion, reduce, waive or rebate all or any portion of such fee with respect to any Member, including principals, employees and affiliates of the Managing Member, in such case without entitling any other Member to the same or similar or identical reduction, waiver or rebate, and shall not be required to obtain the consent or approval of, or give notice to, any Member in connection therewith. The Managing Member may, in its sole discretion, pay all or any portion of such fee, or assign the right to receive payment of all or any portion of such fee, to any affiliate or third party.; (f) Services Not Exclusive. The Managing Member is engaged and may engage in other business activities and shall not be required to refrain from any other activity (whether in competition with the Company or not) nor forego any profits from any such activity, whether as general partner, manager, managing member, investment manager, broker dealer, futures broker, introducing broker, commodity pool operator or trading advisor of additional companies for investment in commodity futures contracts or otherwise. Members may similarly engage in any such other business activities.; (g) No Management Rights in Members. Other than any right afforded to the Members by a nonwaivable provision of the Act, and notwithstanding any other provision of this Agreement to the contrary, the Members shall have no right to influence the management of the Company, whether by voting, withdrawing, removing or replacing the Managing Member or by attempting to change or alter this Agreement by vote, consent or otherwise.; (h) Conflicts in Status of Managing Member. In the event of any inconsistency or conflict between the rights and obligations of the Managing Member as the managing member of the Company, and the rights and obligations of the Managing Member as a member of the Company, the rights and obligations of the Managing Member as the managing member of the Company shall control.; 8. Reports to Members.; Within ninety (90) days after the close of each fiscal year, or as soon thereafter as is practicable, the Managing Member will endeavor to cause each Member to receive (i) audited financial statements (including a balance sheet and statement of income) of the Company for the fiscal year then ended, and (ii) such tax information as is necessary for such Member to complete his or her federal income tax return. The Managing Member will also cause to be provided to each Member such unaudited reports and other information as the Managing Member deems appropriate to provide in its sole discretion.; 9. Assignability of Interests; Redemption of Interests; Restriction or Suspension of Redemptions; Compulsory Redemptions.; (a) Assignability of Interests Only with Consent. The Interests will be offered privately, and, accordingly, any resales may be made only in compliance with the restrictions imposed by applicable securities laws. Each Member expressly agrees that such Member will not assign, transfer or dispose of, by gift, pledge, hypothecation or otherwise, any of such Member’s Interest or any part or all of such Member’s right, title or interest in the capital or profits of the Company without giving written notice of the assignment, transfer or disposition to the Managing Member, and receiving the Managing Member’s prior written consent thereto. Such consent may be withheld in the Managing Member’s sole discretion. No purported assignee of an Interest to which the Managing Member has not consented shall be entitled to redemption rights.; (b) Redemption of Interests. Subject to certain restrictions, a Member may generally withdraw from the Company all or any part of such Member’s capital contributions and undistributed profits, if any (such withdrawal being herein referred to as a “redemption”), on a monthly basis, and on a “first in, first out” basis, by requiring the Company to redeem some or all of such Member’s Interest at its Net Asset Value, calculated as of the close of business on the last business day of any calendar month, or at such additional times and upon such conditions as the Managing Member may determine in its sole discretion. A Member shall effect such redemption and withdrawal by providing the Managing Member (and any designee) with written notice of such a redemption and withdrawal in proper form prior to 5:00 p.m. Eastern Standard Time at least ten (10) days prior to the requested redemption date (or such lesser period as may be acceptable to the Managing Member in its sole discretion). A Member’s right to obtain payment on withdrawals is contingent upon (i) the Company having assets sufficient to discharge its liabilities and (ii) timely receipt by the Company of a withdrawal request.; Without the consent of the Managing Member, no partial withdrawal will be allowed if the amount of the partial withdrawal is less than $10,000 or if, following such withdrawal, the aggregate capital account balance attributable to the withdrawing Member’s remaining Interests would be less than $250,000. The Managing Member may, but is not required to, treat a request for withdrawal that would reduce a Member’s aggregate capital account balance below $250,000 as a request for a complete withdrawal of such Member’s remaining Interests in the Company.; Redemption payments will generally be made as soon as practicable and, in any event, within thirty (30) days after the redemption date; provided that the Managing Member may, in its sole discretion, withhold up to five percent (5%) of the redemption amount, which withheld amount will be payable as soon as practicable following the completion of the Company’s annual audit with respect to the fiscal year in which the applicable redemption date occurs, subject to any necessary adjustments to the redemption amount based on such audit.; (c) Suspension of Redemptions under Certain Circumstances. The Company may suspend the determination of Net Asset Value and/or the payment of certain or all redemptions under certain circumstances deemed extraordinary in the Managing Member’s discretion, including the closure or suspension of trading on any relevant exchange, or a breakdown in the means normally employed by the Company to value assets. The Company may also temporarily suspend redemptions in order to effect the orderly liquidation of the Company’s assets. In the event of any such suspension, payment of the suspended portion of the redemption amount will be made to Members (or former Members) as soon as practicable after such extraordinary circumstances cease to exist.; (d) Compulsory Redemptions. At any time, the Managing Member may, in its sole discretion, require and cause any Member to involuntarily withdraw all or a portion of his or its Interests for any reason or no reason upon written notice to the Member.; 10. Admission of Additional Members and Change in Managing Member.; (a) Additional Members. Additional or substitute Members may be freely admitted to the Company as described in Paragraph 5 and Paragraph 9(a). No Member shall have any preemptive, preferential or other right with respect to the issuance or sale of any additional Interests.; (b) Substitution of Managing Member by Managing Member. The Managing Member may, upon at least thirty (30) days prior written notice to the Members, at any time substitute any other person or entity as the sole Managing Member hereunder without the consent of the Members. Upon the merger or consolidation of the Managing Member into, or the transfer by it of all or substantially all of its assets to, another entity, such entity shall without the consent of the Members become the substitute Managing Member hereunder. Each Member by becoming a party to this Agreement consents to such substitution and addition of Managing Members hereunder.; (c) Election of Managing Member by Members. Solely in the event that the Managing Member resigns, withdraws or is terminated from its position as Managing Member without appointing a new Managing Member, then the Members may elect a replacement Managing Member upon the affirmative vote of the Members owning a majority in interest of the Interests then owned by Members, including any Interests owned by the Managing Member and affiliates thereof. For purposes of the preceding sentence, the Managing Member, upon resignation, withdrawal or termination, shall be deemed a Member and the Managing Member’s interest an Interest. Any new Managing Member so elected shall have all of the right, power and authority of the Managing Member pursuant to this Agreement.; 11. Benefit Plan Investors.; (a) 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 Employee Retirement Income Security Act of 1974, as amended (“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 Company 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 Company for such Plan is consistent with the Plan Fiduciary’s responsibilities under ERISA; (c) the investment in the Company 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 Company has been duly authorized and approved by all necessary parties; (e) none of the Company, the Managing Member, any Broker or any selling agent, or any of their respective affiliates: (i) has investment discretion with respect to the investment of assets of the Plan used to purchase the Interest; (ii) has authority or responsibility to or regularly gives investment advice with respect to the assets of the Plan used to purchase the Interest 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 Company, 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 Company, the Managing Member and the Company’s brokers, administrators and selling agents, and each of their respective affiliates, and (iii) is qualified to make such investment decision.; (b) Disclosures and Restrictions Regarding Benefit Plan Investors. Each Member that is a “benefit plan investor” (defined as any Plan and any entity (“Plan Assets Entity”) deemed for any purpose of ERISA or Section 4975 of the Code to hold assets of any Plan) represents that the individual signing a Company subscription agreement on behalf of such Member has disclosed such Member’s status as a benefit plan investor by checking “Yes” in the applicable question in the subscription agreement. Each Member that is not a “benefit plan investor” represents and agrees that if at a later date such Member becomes a benefit plan investor, such Member will immediately notify the Managing Member of such change of status. In addition, each Plan Assets Entity agrees to promptly provide information to the Managing Member, upon the Managing Member’s reasonable request, regarding the percentage of the Plan Assets Entity’s equity interests held by benefit plan investors. Notwithstanding anything herein to the contrary, the Managing Member, on behalf of the Company, may take any and all action including refusing to admit persons as Members or refusing to accept additional capital contributions, and requiring the redemption of the Interest of any Member in accordance with Paragraph 9 hereof, as may be necessary or desirable to assure that at all times less than twenty-five percent (25%) of the total value of each “class of equity interests in the Company”, as determined pursuant to United States Department of Labor Regulation Section 2510.3-101 and Section 3(42) of ERISA, is held by benefit plan investors (not including the investments of the Managing Member, any person who provides investment advice for a fee (direct or indirect) with respect to the Company and individuals and entities (other than benefit plan investors) that are “affiliates,” as such term is defined in the applicable regulation promulgated under ERISA, of any such person) or to otherwise prevent the Company from holding “plan assets” under Section 3(42) of ERISA.; 12. Special Power of Attorney.; Each Member by his or her execution of this Agreement does hereby irrevocably constitute and appoint the Managing Member and each of its managers and other officers, with full power of substitution, as such Member’s true and lawful attorney-in-fact, in his or her name, place and stead, to execute, acknowledge, swear to (and deliver as may be appropriate) on his or her behalf and file and record in the appropriate public offices and publish (as may in the reasonable judgment of the Managing Member be advisable or required by law) all instruments necessary or desirable for the operation of the Company as contemplated hereby (the “Power of Attorney”). The Power of Attorney granted herein shall be irrevocable and deemed to be a power coupled with an interest and shall survive and shall not be affected by the subsequent incapacity, disability or death of a Member. In addition to the Power of Attorney granted hereby, each Member agrees, upon the request of the Managing Member, to execute a special Power of Attorney to the foregoing effect, in form and substance satisfactory to the Managing Member, on a document separate from this Agreement.; 13. Withdrawal of Members.; (a) Withdrawal of Managing Member. The Managing Member may voluntarily withdraw from the Company at any time upon thirty (30) days prior written notice to the Members in which event the Company shall terminate unless a new Managing Member has been substituted pursuant to Paragraph 10(c).; (b) Withdrawal of a Member. The death, incompetency, withdrawal, resignation, expulsion, bankruptcy, insolvency or dissolution of any Member, or any other event that terminates any Member as a member in the Company (other than the Managing Member as set forth in Paragraph 4(d)), shall not terminate or dissolve the Company, and any such Member, his or her estate, custodian or personal representative shall have no right to withdraw or value such Member’s interest in the Company except as provided in Paragraph 9 hereof. Each Member expressly waives any right or benefit under applicable law to receive any value from the Company after his or her withdrawal (including death) except through redemption of his or her Interest as provided herein. Without limiting the foregoing, to the greatest extent permissible under applicable law he or she waives, and in the event of his or her death he or she waives on behalf of himself or herself and his or her estate and directs the legal representative of his or her estate and any person interested therein to waive, the furnishing of any inventory, accounting or appraisal of the assets of the Company and any right to an audit or examination of the books of the Company.; 14. No Personal Liability for Return of Capital.; In addition to the limitation of any liability of the Managing Member (and other Members) for Company obligations as set forth in Paragraph 6(e), neither the Managing Member, nor any manager, officer, employee or agent thereof, shall be personally liable for the return or repayment of all or any portion of the capital or profits of any Member, it being expressly agreed that any such return of capital or profits made pursuant to this Agreement shall be made solely from the assets of the Company.; 15. Exculpation.; Notwithstanding anything to the contrary in this Agreement, in any proceeding brought in the right of the Company or by or on behalf of its Members against a person by reason of the fact that such person is or was a Managing Member, or a principal, director, manager, officer, owner, employee, controlling person or other affiliate of a Managing Member or any agent thereof (each a “Covered Person”), such persons shall not be liable if such person’s actions were in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe such person’s conduct was unlawful; provided that such limitation on liability shall not apply with respect to any Covered Person to the extent that his or her conduct constituted gross negligence, willful misconduct, fraud or criminal misconduct.; 16. Indemnification.; (a) Indemnification. The Company shall indemnify, defend and hold harmless each Covered Person who is or was threatened to be made a party to any threatened, pending or completed action, suit or other proceeding (including an action, suit or proceeding by or in the right of the Company), whether civil, criminal, regulatory, administrative or investigative, including all appeals, by reason of the fact that such person is or was a Covered Person, or is or was otherwise acting on the Company’s behalf, against any and all expenses (including reasonable attorneys’ fees and disbursements), judgments, decrees, fines, penalties and amounts paid in settlement, which were actually and reasonably incurred by such person in connection with such action, suit or proceeding; provided that the Covered Person acted in good faith and in a manner which it reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, it had no reasonable cause to believe its conduct was unlawful; and further provided that such indemnification shall not apply to the extent that the Covered Person’s conduct constituted gross negligence, willful misconduct, fraud or criminal misconduct.; (b) Determination of Coverage. Any indemnification hereunder shall be made by the Company only as authorized in the specific case upon a determination by the Managing Member that indemnification is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth above (a “Determination of Coverage”). The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the Covered Person did not act in good faith and in a manner which it reasonably believed to be in, or at least not opposed to, the best interests of the Company or, with respect to any criminal action or proceeding, that it had reasonable cause to believe that its conduct was unlawful. Notwithstanding the foregoing, to the extent that any Covered Person has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to herein or in defense of any claim, issue or other matter referred to herein, it shall be indemnified against any and all expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by it in connection therewith. Indemnification hereunder shall not be available to any Covered Person in the case of any action, suit or proceeding brought against the Company by or on behalf of such Person.; (c) Advance for Expenses. If a Determination of Coverage is made, then the Company shall pay for or reimburse the reasonable expenses incurred by a Covered Person who is a party to an action, suit or other proceeding in advance of final disposition of such proceeding if:; (1) such person furnishes the Company a written statement of such person’s good faith belief that it has met the standard of conduct described in Paragraph 16(a); and; (2) such person furnishes the Company a written undertaking, executed personally or on its behalf, to repay all such payments by the Company if it is ultimately determined that it did not meet such standard of conduct (which undertaking shall be an unlimited general obligation of such person but need not be secured and may be accepted without reference to financial ability to make repayment).; (d) Insurance. The Company may purchase and maintain insurance on behalf of any person who is or was serving as a Covered Person, or who is or was otherwise serving in the capacity of a manager, officer, employee or agent of the Company at its request, against liability asserted against or incurred by him or it in that capacity or arising from his or its status as a Covered Person, whether or not the Company would have the power to indemnify him or it against the same liability under Paragraph 16(a).; (e) Application. The indemnification provided hereunder shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any statute, agreement, or otherwise, and shall continue as to a Covered Person who has ceased to serve in a covered capacity and shall inure to the benefit of its successors in interest, including, but not limited to, such person’s trustees, heirs, executors, and administrators.; 17. Amendments.; (a) Amendments by the Managing Member. The Managing Member, in its sole discretion, shall have the right to amend this Agreement (other than with respect to this Paragraph 17(a)), provided that no such amendment may, without the consent of any Member so affected: (i) modify the limited liability of a Member; (ii) reduce the capital account balance of any existing Member; or (iii) adversely affect the percentage of profits, losses or distributions to which a Member is entitled in connection with its Interests, except as otherwise contemplated hereunder (including, but not limited to, by Paragraph 5(a)). The Managing Member shall not be required to notify the Members prior to effecting any permitted amendment, but prompt notice of any such amendment shall be given to the Members. Without limiting the foregoing, the Managing Member may amend this Agreement without the consent of the Members in order to:; (i) clarify any inaccuracy or ambiguity or reconcile any inconsistency;; (ii) add to the representations, duties or obligations of the Managing Member or surrender any right or power of the Managing Member for the benefit of the Members;; (iii) delete or add any provision from or to this Agreement required to be deleted or added by the Securities and Exchange Commission or any other federal agency or any State “Blue Sky” official or similar official or in order to opt to be governed by any amendment or successor statute to the Act;; (iv) change this Agreement in any manner that is appropriate or necessary to qualify or maintain the qualification of the Company as a limited liability company or partnership in which the Members have limited liability under the laws of any state or that is appropriate or necessary to ensure that the Company will not be treated as an association taxable as a corporation for federal income tax purposes;; (v) take such actions as may be necessary or appropriate to avoid the assets of the Company being treated for any purpose of ERISA or Section 4975 of the Code as assets of any “employee benefit plan” as defined in and subject to ERISA or of any “plan” as defined in and subject to Section 4975 of the Code (or any corresponding provisions of succeeding law) or to avoid the Company’s engaging in a prohibited transaction as defined in Section 406 of ERISA or Section 4975(c) of the Code;; (vi) amend this Agreement so as to effect the allocations anticipated hereby to the maximum practicable extent if such allocations are effectively altered by any change in the federal tax law;; (vii) make any amendment to this Agreement which the Managing Member deems advisable to effect the offering and issuance of additional Interests, including the offering of different classes or series of Interests, or; (viii) make any other amendment not prohibited by this Agreement or the Act.; Notwithstanding the foregoing, the Managing Member may amend any paragraph or provision of this Agreement, even if such amendment is not permitted hereunder, if the Managing Member first gives each adversely affected Member an opportunity to withdraw as a Member without being adversely affected by any such amendment. In addition, the Managing Member may require Members to respond in the negative to a proposed amendment or be deemed to have consented thereto.; (b) Amendments by the Members. Except as otherwise provided by the nonwaivable provisions of the Act, this Agreement may not be amended by the Members without the consent of the Managing Member.; 18. Representations, Warranties, Covenants and Understandings of the Members.; The representations, warranties, covenants, and understandings of each Member, as set forth in any private placement memorandum, subscription agreement and any other related documents, if any, completed, signed or acknowledged by the Member prior to its admission as a member of the Company, or the making of any additional capital contribution, if any, are incorporated herein by reference and made a part hereof as if originally contained herein.; 19. Governing Law; Venue; Waiver of Jury Trial.; (a) Governing Law. The internal laws of the State of Delaware (excluding the conflicts of law provisions thereof), as the same may be amended from time to time, shall govern the validity of this Agreement, the construction of its terms, the interpretation of the rights and duties of the Members, and all disputes arising from any of the foregoing.; (b) Venue. Each Member, including the Managing Member on behalf of itself and the Company, hereby (i) agrees that any and all litigation arising out of this Agreement shall be conducted only in state or federal courts located in the State of Delaware, and (ii) agrees that such courts shall have the exclusive jurisdiction to hear and decide such matters. Each Member hereby submits to the personal jurisdiction of such courts and waives any objection such Member may now or hereafter have to venue or that such courts are inconvenient forums.; (c) Waiver of Jury Trial. Each Member, including the Managing Member on behalf of itself and the Company, hereby (i) expressly waives any right to a trial by jury in any action or proceeding to enforce or defend any right, power or remedy under or in connection with this Agreement or arising from any relationship existing in connection with this Agreement, and (ii) agrees that any such action shall be tried before a court and not before a jury.; 20. Confidential Information.; (a) Definition. As used in this Agreement, the term “Confidential Information” means all trading strategies, systems and methods, other money management techniques, financial information, investment and business strategies, asset allocations, trading volumes, portfolio constructions, risk management procedures, compliance procedures, other operating procedures, organizational matters, the identity of investors and potential investors and additional information, documents and material which gives the Company or the Managing Member an opportunity to obtain an advantage over their competitors who do not know or use the same or by which the Company or the Managing Member derives actual or potential value from such information, matter or material not generally being known to other persons or entities who might obtain economic value from its use or disclosure, or which is otherwise confidential in nature. Without limiting the foregoing, Confidential Information includes this Agreement, any reports or other information sent or otherwise made available by the Company or the Managing Member to Members, and each confidential private placement memorandum issued by the Company or the Managing Member. Confidential Information does not, however, include information that (i) is already generally available through public sources of information (other than as a result of a disclosure in violation of this Agreement or any other obligation of confidentiality), or (ii) becomes available to a Member on a non-confidential basis from a third party, provided such that third party is not known or reasonably believed by such Member to be bound by this Agreement or another confidentiality obligation to the Company or the Managing Member. The Members acknowledge that certain Confidential Information hereunder, including trading strategies, systems and methods, shall remain the property of the Managing Member and not the Company.; (b) Non-Disclosure. Each Member shall, and shall cause its respective directors, officers, partners, members, employees, attorneys, accountants, trustees, consultants, affiliates, advisors and other representatives who have access to Confidential Information to, keep confidential and not disclose any Confidential Information without the express consent of the Managing Member unless: (i) such disclosure shall be required by applicable law, governmental rule or regulation, court order, administrative or arbitral proceeding or by any regulatory authority having jurisdiction; (ii) such disclosure is reasonably required in connection with any tax filing or audit involving the Member or the Company; or (iii) such disclosure is required under the limited liability company agreement or other organizational documents of a Member and the Member takes reasonable steps to cause recipients of the information to abide by the provisions hereof. Nothing in this Paragraph 20 shall be construed to prevent the disclosure of this Agreement, information contained in the books and records of the Company, or other correspondence or materials by a Member on a confidential basis to the Member’s professional advisors for the purpose of obtaining professional legal, tax or accounting advice with respect thereto, provided that such persons have agreed to be bound by the confidentiality obligations set forth herein.; (c) Non-Use. Each Member shall, and shall cause its respective directors, officers, partners, members, employees, attorneys, accountants, trustees, consultants, affiliates, advisors and other representatives who have access to Confidential Information to, refrain from using any Confidential Information in any manner without the express written consent of the Managing Member, other than as reasonably necessary in connection with such Member’s Interests in the Company.; 21. Miscellaneous.; (a) Notices. All notices under this Agreement to the Managing Member or the Company shall be in writing and shall be effective only upon actual delivery to the Managing Member at the address set forth herein, or at the address otherwise subsequently notified to the Members in writing by the Managing Member. Notices to Members shall be effective if addressed to the last known address of a Member: (i) upon delivery, if delivered personally, or by e-mail or facsimile transmission with electronic or other confirmation of receipt; (ii) one business day after deposit with any recognized overnight or express delivery service; or (iii) three days after deposit with the U.S. Post Office if sent by first class mail, postage prepaid.; (b) Entire Agreement. This Agreement, together with any other agreement referred to herein, including, but not limited to any joinder agreement, power of attorney, subscription agreement and private placement memorandum, shall constitute the entire agreement between the Members, the Managing Member and the Company with respect to the subject matter hereof, and shall supersede any prior agreement or understanding, oral or written, relating to the Company. No amendment, modification or alteration of the terms hereof shall be binding unless the same is in writing and adopted in accordance with the provisions of Paragraph 17.; (c) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and permitted transferees of the Members. For purposes of determining the rights of any Member, transferee or other recipient of an Interest hereunder, the Company and the Managing Member may rely on the Company records as to the identity of the Members and the permitted transferees and other recipients of Interests, and all Members, transferees and other recipients of Interests agree that the Company and the Managing Member, in determining such rights, shall rely on such records and that all Members, transferees and other recipients of Interests shall be bound by such determinations. The signature of any party transmitted electronically (whether via fax, e-mail, digital signature, or other media now existing or hereafter developed), shall be treated in all manner and respects, and have the same binding legal effect, as an original document.; (d) Construction. The recitals to this Agreement are, and shall be construed to be, an integral part of this Agreement. The headings of paragraphs and subparagraphs in this Agreement are inserted for convenience of reference only and shall not be considered part of or affect the interpretation of this Agreement. The term “person” as used herein shall include any individual, company, partnership, trust or other legal entity of any kind whatsoever. Whenever the term “include”, “including”, or “included” is used in this Agreement, it shall mean including without limiting the foregoing. Whenever the context so requires, the plural shall include the singular and vice versa. All words and phrases shall be construed as masculine, feminine or neuter gender, according to the context.; (e) Validity and Severability. Whenever possible, each provision of this Agreement shall be construed so as to be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement or the application thereof to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition without invalidating the remainder of such provision or any other provision of this Agreement or the application of such provision to other parties or circumstances.; (f) Action for Partition or Distribution in Kind. Each of the Members irrevocably waives any right which it may have to partition Company property or maintain an action for distribution of Company property in kind.; (g) Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company or any Member.; (h) Counterparts. This Agreement may be executed in several counterparts (and by joinder or power of attorney), and all counterparts so executed shall constitute one Agreement, binding on all the parties hereto, notwithstanding that all of the parties are not signatories to the original or same counterpart.; IN WITNESS WHEREOF, the parties hereto have executed this Viseroij Investment Fund LLC Limited Liability Company Operating Agreement.; Managing Member:; VISEROIJ CAPITAL MANAGEMENT LLC; Members:; All Members now and hereafter admitted as Members of the Company pursuant to Power of Attorney now or hereafter executed in favor of and delivered to the Managing Member.
PERVISEROIJ INVESTMENT FUND LLCFORMANCE: SUBSCRIPTION AGREEMENT/LIMITED POWER OF ATTORNEY; To: Viseroij Capital Management LLC; c/o NAV CONSULTING, INC.; 1 Trans Am Plaza Drive Suite 400; Oakbrook Terrace, IL 60181; United States; Email: transfer.agency@navconsulting.net; Phone:+16309541919 Fax:+16305968555; 1. Subscription. I, the undersigned, as the “Subscriber”, hereby apply and subscribe for a membership interest (“Interest”) in Viseroij Investment Fund LLC (the “Company”). I have provided all necessary subscription documents and the necessary capital contribution to Viseroij Capital Management LLC (the “Managing Member”), which I understand are required to be received by the Managing Member at least five days prior to the month’s end, as described in the Company’s Confidential Offering Memorandum (the “Memorandum”). Contemporaneously with my submission of this instrument, I hereby tender a check or wire transfer in the amount of:; Upon acceptance of this subscription, I agree to become a Member in the Company and accept and adopt the provisions of the Limited Liability Company Agreement, as the same may be amended from time to time in accordance with the terms thereof (the “LLC Agreement”). I understand that my subscription, once made, is irrevocable and the Managing Member will advise me, as soon as is practicable, whether my subscription has been accepted or rejected. I understand that if my subscription is rejected, the amount of my subscription will be promptly returned to me without interest thereon or deduction therefrom.; 2. Representation and Warranties. I hereby represent and warrant to you as follows:; (a) Simultaneously with acceptance of this subscription by the Company, and by completing, executing and delivering the Power of Attorney included in this Exhibit B and the Confidential Purchaser Questionnaire which is Exhibit C to the Memorandum, I will and hereby offer to become a party to the LLC Agreement as a signatory thereof as a Member of the Company, and will and hereby do appoint the Managing Member as my attorney-in-fact to, among other things, execute on my behalf all further amendments to the LLC Agreement, and I will be bound by all of the terms and conditions thereof.; (b) I (and my offeree representative, if any) have read, understand and am fully familiar with the Memorandum and the exhibits thereto, particularly, but without limiting the generality of the foregoing, the risks and conflicts of interest applicable to this investment, and I am satisfied that I have received adequate information concerning all matters which I consider material to a decision to purchase Interests.; (c) I (and my offeree representative, if any) have had an opportunity to ask questions of and received answers from the Managing Member concerning the terms and conditions of this investment, and all such questions have been answered to my full satisfaction.; (d) I (and my offeree representative, if any) have such knowledge and experience in financial and business matters that I am capable of evaluating the risks and merits of an investment in the Company.; (e) I have completed the Confidential Purchaser Questionnaire and certify that all disclosures therein are accurate and true.; (f) I have substantial means of providing for my current needs and personal contingencies separate and apart from the amount of my investment, and I have no need for liquidity in this investment.; (g) My overall commitment to investments which are not readily marketable or are not liquid is not disproportionate to my net worth and my purchase of the Interest will not cause my overall commitment in this type of investment to become excessive.; (h) I have substantial experience in making investment decisions of this type or am relying upon my own qualified purchaser representative in making this investment decision.; (i) Where appropriate, I have consulted my lawyer, accountant, or other advisor with respect to my investment and all books, records and documents pertaining to the investment have been made available to me and such advisors by the Company.; (j) Except as set forth in the Memorandum and the exhibits thereto (collectively, the “Offering Documents”), no representations or warranties have been made to me by the Company, the Managing Member or any member, director, officer, agent, employee or affiliate of either of them, in entering into this transaction, and I am not relying upon any information, other than that contained in such Offering Documents and the results of my own independent investigation.; (k) I understand that the Interests have not been registered under the Securities Act of 1933, as amended, that the Interests have not been approved or disapproved by the Securities and Exchange Commission or by any federal or state agency, and that no such agency has passed on the accuracy or adequacy of the Memorandum.; (l) I understand that the Company is not registered under the Investment Company Act of 1940 or with any state regulator. Accordingly, I will not be afforded the protections provided by state and federal regulations governing registered investment companies.; (m) I am acquiring my Interest hereunder for my own account, for investment purposes only, and not with a view to the sale or other distribution thereof, in whole or in part.; (n) I am an “Accredited Investor” as that term is defined in Rule 501 of The Securities Act of 1933.; (o) I am a “Qualified Eligible Person” as that term is defined under Commodity Futures Trading Commission Regulation 4.7.; (p) If the undersigned is a corporation, trust, fund, or limited liability company (“Business Organization(s)”, collectively), the officer executing this Subscription Agreement represents and warrants that he or she is authorized to so sign; and that the Business Organization is authorized by the applicable governing written instrument to make this investment and to enter into the LLC Agreement and this Subscription Agreement.; (q) The Business Organization will, upon request of the Managing Member or counsel to the Company, furnish to the Company a true and correct copy of the applicable governing written instrument authorizing the Business Organization to make such investment, and a copy (certified by the authorized officer) of applicable governing written instrument authorizing the specific investment.; 3. I understand the meaning and legal consequences of the representations and warranties contained in paragraph 2 hereof and I hereby agree to indemnify and hold harmless the Company and the Managing Member and each Member thereof from and against any and all loss, damage or liability due to or arising out of any breach of any representation or warranty of the undersigned, whether contained in the LLC Agreement or this Subscription Agreement. Notwithstanding any representation or warranty of the undersigned, I do not thereby or in any other manner waive any rights granted to me under federal or state securities laws.; 4. I understand that this Subscription is not binding on the Company until the Company accepts it, which acceptance is at the sole discretion of the Managing Member, by executing this Subscription Agreement where indicated.; 5. All notices or other communications to be given or made hereunder shall be in writing and shall be delivered personally or mailed, by registered or certified mail, return receipt requested, postage prepaid, to the undersigned or to the Company, as the case may be, at the respective address set forth herein or as otherwise provided in the LLC Agreement.; 6. Limited Power of Attorney. Subscriber irrevocably constitutes and appoints the Managing Member, Viseroij Capital Management LLC , as Subscriber’s true and lawful attorney-in-fact with full power of substitution and with authority in Subscriber's name, place and stead, to execute, acknowledge, deliver, swear to, file and record:; (a) The Company’s LLC Agreement;; (b) Amendments to the LLC Agreement;; (c) The Company’s Certificate of Formation and all amendments thereto;; (d) All documents necessary to qualify or continue the Company in the states where it may do business;; (e) All instruments which effect a change or modification of the LLC Agreement in accordance with the terms thereof;; (f) All conveyances, instruments, or documents necessary to carry on the business of the Company including, but not limited to, brokerage agreements with any brokerage firm or to effect the dissolution of the Company; and; (g) All other filings with governmental agencies that are necessary or desirable to carry out the business of the Company.; This power of attorney shall be deemed coupled with an interest, shall be irrevocable and shall survive a Subscriber’s death or disability.; 7. Items to be Delivered by Subscriber.; I understand that, unless waived in writing by the Managing Member, my subscription is conditioned upon my delivery to the Administrator or the Managing Member of the following:; (a) An executed Subscription Agreement and Limited Power of Attorney;; (b) A completed and executed Confidential Purchaser Questionnaire;; (c) An executed Acknowledgement of Receipt of Confidential Offering Memorandum;; (d) An executed Consent to Electronic Delivery of Statements;; (e) Payment of the subscription and investment amount in the Company; and; (f) An executed IRS Form W-9, which can be accessed using this link: https://www.irs.gov/pub/irs-pdf/fw9.pdf.
RISK DISCLOSURE STATEMENT: YOU SHOULD CAREFULLY CONSIDER WHETHER YOUR FINANCIAL CONDITION PERMITS YOU TO PARTICIPATE IN A COMMODITY POOL. IN SO DOING, YOU SHOULD BE AWARE THAT COMMODITY INTEREST TRADING CAN QUICKLY LEAD TO LARGE LOSSES AS WELL AS GAINS. SUCH TRADING LOSSES CAN SHARPLY REDUCE THE NET ASSET VALUE OF THE POOL AND CONSEQUENTLY THE VALUE OF YOUR INTEREST IN THE POOL. IN ADDITION, RESTRICTIONS ON REDEMPTIONS MAY AFFECT YOUR ABILITY TO WITHDRAW YOUR PARTICIPATION IN THE POOL.; FURTHER, COMMODITY POOLS MAY BE SUBJECT TO SUBSTANTIAL CHARGES FOR MANAGEMENT, ADVISORY, BROKERAGE AND OTHER FEES. IT MAY BE NECESSARY FOR THOSE POOLS THAT ARE SUBJECT TO THESE CHARGES TO MAKE SUBSTANTIAL TRADING PROFITS TO A VOID DEPLETION OR EXHAUSTION OF THEIR ASSETS. THIS DISCLOSURE DOCUMENT CONTAINS A COMPLETE DESCRIPTION OF EACH EXPENSE TO BE CHARGED THIS POOL.; THIS BRIEF STATEMENT CANNOT DISCLOSE ALL THE RISKS AND OTHER FACTORS NECESSARY TO EVALUATE YOUR PARTICIPATION IN THIS COMMODITY POOL. THEREFORE, BEFORE YOU DECIDE TO PARTICIPATE IN THIS COMMODITY POOL, YOU SHOULD CAREFULLY STUDY THIS DISCLOSURE DOCUMENT, INCLUDING A DESCRIPTION OF THE PRINCIPAL RISK FACTORS OF THIS INVESTMENT.; YOU SHOULD ALSO BE AWARE THAT THIS COMMODITY POOL MAY TRADE FOREIGN FUTURES OR OPTIONS CONTRACTS. TRANSACTIONS ON MARKETS LOCATED OUTSIDE THE UNITED STATES, INCLUDING MARKETS FORMALLY LINKED TO A UNITED STATES MARKET, MAY BE SUBJECT TO REGULATIONS WHICH OFFER DIFFERENT OR DIMINISHED PROTECTION TO THE POOL AND ITS PARTICIPANTS. FURTHER, UNITED STATES REGULATORY AUTHORITIES MAY BE UNABLE TO COMPEL THE ENFORCEMENT OF THE RULES OF REGULATORY AUTHORITIES OR MARKETS IN NON-UNITED STATES JURISDICTIONS WHERE TRANSACTIONS FOR THE POOL MAY BE EFFECTED.; YOU SHOULD ALSO BE AWARE THAT THIS COMMODITY POOL MAY ENGAGE IN OFF-EXCHANGE FOREIGN CURRENCY TRADING. SUCH TRADING IS NOT CONDUCTED IN THE INTERBANK MARKET. THE FUNDS THAT THE POOL USES FOR OFF-EXCHANGE FOREIGN CURRENCY TRADING WILL NOT RECEIVE THE SAME PROTECTIONS AS FUNDS USED TO MARGIN OR GUARANTEE EXCHANGE-TRADED FUTURES AND OPTION CONTRACTS. IF THE POOL DEPOSITS SUCH FUNDS WITH A COUNTERPARTY AND THAT COUNTERPARTY BECOMES INSOLVENT, THE POOL'S CLAIM FOR AMOUNTS DEPOSITED OR PROFITS EARNED ON TRANSACTIONS WITH THE COUNTERPARTY MAY NOT BE TREATED AS A COMMODITY CUSTOMER CLAIM FOR PURPOSES OF SUBCHAPTER IV OF CHAPTER 7 OF THE BANKRUPTCY CODE AND THE REGULATIONS THEREUNDER. THE POOL MAY BE A GENERAL CREDITOR AND ITS CLAIM MAY BE PAID, ALONG WITH THE CLAIMS OF OTHER GENERAL CREDITORS, FROM ANY MONIES STILL AVAILABLE AFTER PRIORITY CLAIMS ARE PAID. EVEN POOL FUNDS THAT THE COUNTERPARTY KEEPS SEPARATE FROM ITS OWN FUNDS MAY NOT BE SAFE FROM THE CLAIMS OF PRIORITY AND OTHER GENERAL CREDITORS.
REGULATORY AND OTHER NOTICES: THE LIMITED LIABILITY COMPANY INTERESTS (“INTERESTS”) OF VISEROIJ INVESTMENT FUND LLC (THE “COMPANY”) HAVE NOT BEEN REGISTERED WITH OR APPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES AGENCY, OR ANY OTHER REGULATORY AUTHORITY. THE INTERESTS ARE OFFERED PURSUANT TO EXEMPTIONS FROM REGISTRATION UNDER SECTION 4(a)(2) OF THE SECURITIES ACT OF 1933, AS AMENDED, RULE 506 PROMULGATED THEREUNDER, AND APPLICABLE STATE SECURITIES LAWS. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE AGENCY OR OTHER REGULATORY AUTHORITY HAS P ASSED UPON THE V ALUE OF THESE SECURITIES, MADE ANY RECOMMENDATIONS AS TO THEIR PURCHASE, APPROVED OR DISAPPROVED THIS OFFERING, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS MEMORANDUM, AS DEFINED BELOW. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.; THIS MEMORANDUM CONSTITUTES AN OFFER ONLY IF THE NAME OF AN OFFEREE APPEARS IN THE APPROPRIATE SPACE PROVIDED ON THE COVER PAGE OF THIS MEMORANDUM AND ONLY IF DELIVERY OF THIS MEMORANDUM IS PROPERLY AUTHORIZED BY VISEROIJ CAPITAL MANAGEMENT LLC (THE “MANAGING MEMBER”), WHICH SERVES AS THE MANAGING MEMBER AND COMMODITY POOL OPERATOR OF THE COMPANY. THIS MEMORANDUM HAS BEEN PREPARED BY THE MANAGING MEMBER SOLELY FOR THE BENEFIT OF PERSONS INTERESTED IN THE PROPOSED SALE OF THE INTERESTS, AND ANY FURTHER DISTRIBUTION OR REPRODUCTION OF THIS MEMORANDUM, IN WHOLE OR IN PART, OR THE DIVULGENCE OF ANY OF ITS CONTENTS, WITHOUT THE PRIOR WRITTEN CONSENT OF THE MANAGING MEMBER, IS PROHIBITED. ANY CONTRARY ACTION MAY PLACE THE PERSON OR PERSONS TAKING SUCH ACTION IN VIOLATION OF STATE AND FEDERAL SECURITIES LAWS.; NO PERSON OTHER THAN THE MANAGING MEMBER OF THE COMPANY HAS BEEN AUTHORIZED TO MAKE ANY REPRESENTATIONS OR PROVIDE ANY INFORMATION WITH RESPECT TO THE INTERESTS EXCEPT THE INFORMATION AND REPRESENTATIONS CONTAINED IN THIS MEMORANDUM. ANY FURTHER INFORMATION GIVEN OR REPRESENTATION MADE BY ANY SALES AGENT, BROKER, DEALER, SALESMAN, OR OTHER PERSON MUST BE REGARDED AS UNAUTHORIZED.; THE DELIVERY OF THIS MEMORANDUM AND THE OFFER, ALLOTMENT, SALE OR ISSUANCE OF INTERESTS DO NOT UNDER ANY CIRCUMSTANCES CONSTITUTE A REPRESENTATION THAT EVERY ITEM OF INFORMATION CONTAINED HEREIN IS CORRECT SUBSEQUENT TO THE DATE OF THIS MEMORANDUM.; INTERESTS ARE AVAILABLE ONLY TO PERSONS WHO ARE WILLING AND ABLE TO BEAR THE ECONOMIC RISKS OF THIS INVESTMENT. THE INTERESTS ARE SPECULATIVE, INVOLVE A HIGH DEGREE OF RISK, AND ARE INTENDED FOR SALE TO A LIMITED NUMBER OF EXPERIENCED AND SOPHISTICATED INVESTORS WHO ARE ABLE TO BEAR A COMPLETE LOSS OF THEIR CAPITAL CONTRIBUTIONS IN THE COMPANY.; IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED.; THIS MEMORANDUM DOES NOT CONSTITUTE AN OFFER TO, AN INVITATION TO OR A SOLICITATION OF ANY PERSON OTHER THAN THE PERSON TO WHOM THE COMPANY, OR SOMEONE ON BEHALF OF THE COMPANY, DELIVERED IT, AND IT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION OF ANY PERSON IN ANY STATE OR JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION IS NOT AUTHORIZED OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.; THESE INTERESTS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND CANNOT BE RESOLD, TRANSFERRED OR PLEDGED IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION THEREFROM. THERE IS NO PUBLIC OR OTHER MARKET FOR THE INTERESTS, AND NO SUCH MARKET IS EXPECTED TO DEVELOP. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISK OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.; CERTAIN OF THE STATEMENTS USED IN THIS MEMORANDUM CONSTITUTE “FORWARD- LOOKING STATEMENTS,” THESE CAN BE IDENTIFIED BY THE USE OF FORWARD-LOOKING TERMINOLOGY SUCH AS “MAY,” “WILL,” “SHOULD,” “EXPECT,” “ANTICIPATE,” “PROJECT,” “ESTIMATE,” “INTEND,” “CONTINUE,” “TARGET,” “BELIEVE,” THE NEGATIVES THEREOF, OTHER VARIATIONS THEREON OR COMPARABLE TERMINOLOGY. ALL SUCH FORWARD- LOOKING STATEMENTS INVOLVE VARIOUS RISKS AND UNCERTAINTIES, AND THERE CAN BE NO ASSURANCE THAT THE FORWARD-LOOKING STATEMENTS INCLUDED HEREIN WILL PROVE TO BE ACCURATE. ACTUAL EVENTS OR RESULTS OR THE ACTUAL PERFORMANCE OF THE FUND MAY DIFFER MATERIALLY FROM THOSE REFLECTED OR CONTEMPLATED IN SUCH FORWARD- LOOKING STATEMENTS. THE INCLUSION OF SUCH INFORMATION SHOULD NOT BE REGARDED AS A REPRESENTATION OR WARRANTY BY THE FUND OR ANY OTHER PERSON THAT THE OBJECTIVES AND PLANS OF THE FUND WILL BE ACHIEVED IN ANY SPECIFIED TIME FRAME, IF AT ALL. IN PARTICULAR, INVESTORS SHOULD REFER TO “CERTAIN RISK FACTORS” AND “POTENTIAL CONFLICTS OF INTEREST” FOR A DISCUSSION OF IMPORTANT FACTORS THAT COULD AFFECT THE ABILITY OF THE FUND TO ACHIEVE ITS OBJECTIVES AND PLANS AND WHETHER OR NOT SUCH FORWARD-LOOKING STATEMENTS PROVE TO BE ACCURATE.; THIS MEMORANDUM CONTAINS A SUMMARY OF THE MATERIAL TERMS OF THE INFORMATION PURPORTED TO BE SUMMARIZED HEREIN. HOWEVER, THIS IS A SUMMARY ONLY AND DOES NOT PURPORT TO BE COMPLETE. ACCORDINGLY, REFERENCE IS MADE TO THE LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF THE COMPANY AND THE OTHER AGREEMENTS, DOCUMENTS, STATUTES AND REGULATIONS REFERRED TO HEREIN FOR THE EXACT TERMS OF SUCH LIMITED LIABILITY COMPANY OPERATING AGREEMENT AND OTHER AGREEMENTS, DOCUMENTS, STATUTES AND REGULATIONS.; EACH INVESTOR MUST ACQUIRE INTERESTS SOLELY FOR SUCH INVESTOR’S OWN ACCOUNT, FOR INVESTMENT AND NOT WITH ANY INTENTION TO DISTRIBUTE, TRANSFER OR RESELL SUCH INTERESTS, EITHER IN WHOLE OR IN PART.; THE CONTENTS OF THIS MEMORANDUM SHOULD NOT BE CONSTRUED AS INVESTMENT, FINANCIAL, BUSINESS, LEGAL, REGULATORY, ACCOUNTING OR TAX ADVICE. EACH PROSPECTIVE INVESTOR IS URGED TO SEEK INDEPENDENT PROFESSIONAL ADVICE CONCERNING THE CONSEQUENCES OF INVESTING IN THE COMPANY.
FOR FLORIDA RESIDENTS ONLY: UPON THE ACCEPTANCE OF FIVE OR MORE FLORIDA INVESTORS, AND IF THE FLORIDA INVESTOR IS NOT A BANK, A TRUST COMPANY, A SAVINGS INSTITUTION, AN INSURANCE COMPANY, A DEALER, AN INVESTMENT COMPANY AS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, A PENSION OR PROFIT-SHARING TRUST, OR A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933), THE FLORIDA INVESTOR ACKNOWLEDGES THAT ANY SALE OF INTERESTS TO THE FLORIDA INVESTOR IS VOIDABLE BY THE FLORIDA INVESTOR EITHER WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE FLORIDA INVESTOR TO THE COMPANY, AN AGENT OF THE COMPANY, OR AN ESCROW AGENT, OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO THE FLORIDA INVESTOR, WHICHEVER OCCURS LATER.
PRIVACY POLICY NOTICE: This Privacy Policy Notice is provided to you as a result of certain federal privacy notice and disclosure regulations, and explains the manner in which the Managing Member collects, utilizes, and maintains nonpublic personal information about each of its investors.; A. Information Collected; The Managing Member collects nonpublic personal information about you from the following sources:; Information the Managing Member receives from you through subscription documents, investor questionnaires and other documents; and; Information about your transactions with the Managing Member, its affiliates, or others.; B. Information Disclosed; In order to service your account and process your transactions, the Managing Member may provide your nonpublic personal information to its affiliates and to unaffiliated third party service providers that assist the Managing Member in servicing your account and have a need for such information, such as fund accountants. The Managing Member does not disclose any nonpublic information about its clients or former clients to anyone other than in connection with the administration, processing and servicing of customer accounts as described above or to its accountants, attorneys and auditors or as otherwise permitted or required by law.; C. Security Procedures; The Managing Member restricts access to nonpublic personal information about you to its personnel who need to know that information in order to provide products or services to you. The Managing Member maintains physical, electronic and procedural controls in keeping with federal standards to safeguard your nonpublic personal information. The Managing Member is committed to safeguarding the nonpublic personal information of investors and will adhere to the foregoing policies for both current and former investors.