SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
(Name of Issuer)
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
(Name of Person(s) Filing Statement)
LIMITED LIABILITY COMPANY INTERESTS
(Title of Class of Securities)
N/A
(CUSIP Number of Class of Securities)
DOUGLAS A. LINDGREN
Excelsior Absolute Return Fund of Funds, LLC
225 High Ridge Road
Stamford, CT 06905
(203) 352-4497
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
Kenneth S. Gerstein, Esq.
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
(212) 756-2533
April 14, 2005
(Date Tender Offer First Published,
Sent or Given to Security Holders)
CALCULATION OF FILING FEE
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Transaction Valuation: $15,000,000 (a) Amount of Filing Fee: $1,765.50 (b)
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(a) Calculated as the aggregate maximum purchase price for Interests.
(b) Calculated at $117.70 per million of Transaction Valuation.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: ________________________
Form or Registration No.: ______________________
Filing Party: __________________________________
Date Filed: ____________________________________
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third-party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
ITEM 1. SUMMARY TERM SHEET.
As stated in the offering documents of Excelsior Absolute Return Fund
of Funds, LLC (the "Fund"), the Fund is offering to purchase limited liability
company interests in the Fund ("Interest" or "Interests" as the context
requires) from members of the Fund ("Members") at their net asset value (that
is, the value of the Fund's assets minus its liabilities, multiplied by the
proportionate interest in the Fund a Member desires to tender). The offer to
purchase Interests (the "Offer") will remain open until 12:00 midnight, Eastern
Time, on Wednesday, May 11, 2005, unless the Offer is extended. The net asset
value of the Interests will be calculated for this purpose on June 30, 2005 or,
if the Offer is extended, on the last business day of the month in which the
Offer expires (the "Valuation Date"). The Fund reserves the right to adjust the
Valuation Date to correspond with any extension of the Offer. The Fund will
review the net asset value calculation of Interests as of June 30, 2005, during
the Fund's audit for its fiscal year ending March 31, 2006, which the Fund
expects will be completed by the end of May 2006. This June 30, 2005 net asset
value, as reviewed, will be used to determine the final amount paid for tendered
Interests.
Members may tender their entire Interest, a portion of their Interest
defined as a specific dollar value or the portion of their Interest above the
required minimum capital account balance. If a Member tenders its entire
Interest (or a portion of its Interest) and the Fund accepts that Interest for
repurchase, the Fund will give the Member a non-interest bearing,
non-transferable promissory note (the "Note") entitling the Member to receive an
amount equal to the net asset value of the Interest tendered (valued in
accordance with the Fund's Limited Liability Company Agreement dated September
2, 2003 (the "LLC Agreement")) determined as of June 30, 2005 (or if the Offer
is extended, the net asset value determined on the Valuation Date). The Note
will be held in a special custody account with PFPC Trust Company (PFPC Trust
Company, together with its affiliated banks, "PFPC").
If a Member tenders its entire Interest, the Note will entitle the
Member to receive an initial payment in cash and/or marketable securities
(valued in accordance with the LLC Agreement) equal to at least 95% of the
unaudited net asset value of the Interest tendered by the Member that is
accepted for purchase by the Fund (the "Initial Payment") and will be paid to
the Member's account with PFPC or mailed to the Member if the Member does not
have a PFPC account, within 30 calendar days after the Valuation Date or, if the
Fund has requested withdrawals of its capital from any investment funds in order
to finance the purchase of Interests, within ten business days after the Fund
has received at least 95% of the aggregate amount withdrawn by the Fund from
such investment funds.
The Note will also entitle the Member to receive a contingent payment
(the "Contingent Payment") equal to the excess, if any, of (a) the net asset
value of the Interest tendered by the Member and accepted by the Fund for
repurchase, determined as of the Valuation Date, as it may be adjusted based on
the next annual audit of the Fund's March 31, 2006, financial statements, over
(b) the Initial Payment. The Fund will deposit the aggregate amount of the
Contingent Payments in a separate, interest bearing account and will pay any
interest actually earned thereon PRO RATA to the Members whose Interests have
been repurchased. The Contingent Payment (plus any interest earned) will be paid
within ten calendar days after the completion of the Fund's annual audit. The
Contingent Payment will also be deposited into the tendering Member's account at
PFPC or mailed to the Member if the Member does not have a PFPC account.
A Member that tenders for purchase only a portion of such Member's
Interest will receive a Note that will entitle the Member to a payment in cash
and/or marketable securities (valued in accordance with the LLC Agreement) equal
to 100% of the net asset value of the Interest tendered by the Member that is
accepted for purchase by the Fund. Payment pursuant to the Note will be made to
the Member's account at PFPC or mail to the Member if the Member does not have a
PFPC account, within 30 calendar days after the Valuation Date or, if the Fund
has requested withdrawals of its capital from any investment funds in order to
finance the purchase of Interests, within ten business days after the Fund has
received at least 95% of the aggregate amount withdrawn by the Fund from such
investment funds.
A Member that tenders for purchase only a portion of such Member's
Interest must tender a minimum of $25,000 and will be required to maintain a
capital account balance equal to $100,000 or more.
The Fund reserves the right to purchase less than the amount tendered
by a Member if the purchase would cause the Member's capital account in the Fund
to have a value less than the required minimum balance or if the total amount
tendered by Members is more than $15 million.
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If the Fund accepts the tender of the Member's entire Interest or a portion of
such Member's Interest for repurchase, the Fund will make payment for Interests
it purchases from one or more of the following sources: cash on hand;
withdrawals of capital from investment funds in which the Fund has invested;
proceeds from the sale of securities and portfolio assets held by the Fund;
and/or borrowings (which the Fund does not currently intend to do).
Following this summary is a formal notice of the Fund's offer to
purchase the Interests. The Offer remains open to Members until 12:00 midnight,
Eastern Time, Wednesday, May 11, 2005, the expected expiration date of the
Offer. Until that time, Members have the right to change their minds and
withdraw the tenders of their Interests. Members will also have the right to
withdraw tenders of their Interests at any time after Thursday, June 9, 2005, 40
business days from the commencement of the Offer, assuming their Interest has
not been accepted for purchase by the Fund on or before that date.
If a Member would like the Fund to purchase its Interest or a portion
of its Interest, it should complete, sign and either (i) mail (via certified
mail return receipt requested) or otherwise deliver a Letter of Transmittal,
attached to this document as Exhibit C, to U.S. Trust Hedge Fund Management,
Inc., the investment adviser of the Fund (the "Adviser"), 225 High Ridge Road,
Stamford, CT 06905, attention Kathleen Flores, or (ii) fax it to U.S. Trust
Hedge Fund Management, Inc. at (203) 352-4456, so that it is received before
12:00 midnight, Eastern Time, on Wednesday, May 11, 2005. If the Member chooses
to fax the Letter of Transmittal, it should mail the original Letter of
Transmittal to the Adviser promptly after it is faxed (although the original
does not have to be received before 12:00 midnight, Eastern Time, on Wednesday,
May 11, 2005). Of course, the value of Interests will change between March 31,
2005 (the last time prior to the date of this filing as of which net asset value
has been calculated) and June 30, 2005, the date as of which the value of
Interests will be determined for purposes of calculating the purchase price for
Interests. Members may obtain the estimated net asset value of their Interests,
which the Fund calculates monthly based on the information the Fund receives
from the managers of the investment funds in which it invests, by contacting the
Adviser at (203) 352-4497 or at the address listed above, Monday through Friday,
except holidays, during normal business hours of 9:00 a.m. to 5:00 p.m. (Eastern
Time).
Please note that just as each Member has the right to withdraw the
tender of an Interest, the Fund has the right to cancel, amend or postpone this
Offer at any time before 12:00 midnight, Eastern Time, on Wednesday, May 11,
2005. Also realize that although the Offer expires on May 11, 2005, a Member
that tenders its Interest will remain a Member with respect to the Interest
tendered and accepted for purchase by the Fund through June 30, 2005, when the
net asset value of the Member's Interest tendered to the Fund for repurchase is
calculated.
ITEM 2. ISSUER INFORMATION.
(a) The name of the issuer is Excelsior Absolute Return Fund of Funds,
LLC. The Fund is registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), as a closed-end, non-diversified, management investment
company. It is organized as a Delaware limited liability company. The principal
executive office of the Fund is located at 225 High Ridge Road, Stamford, CT
06905 and the telephone number is (203) 352-4497.
(b) The title of the securities that are the subject of the Offer is
limited liability company interests or portions thereof in the Fund. (As used
herein, the term "Interest" or
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"Interests," as the context requires, refers to the limited liability company
interests in the Fund and portions thereof that constitute the class of security
that is the subject of this Offer or the limited liability company interests in
the Fund or portions thereof that are tendered by Members pursuant to the
Offer.) As of the close of business on March 31, 2005, there was approximately
$224,484,639 outstanding in capital of the Fund, represented by Interests.
Subject to the conditions set forth in the Offer, the Fund will purchase up to
$15 million of Interests that are tendered and not withdrawn as described in
ITEM 1, subject to any extension of the Offer.
(c) Interests are not traded in any market, and any transfer thereof is
strictly limited by the terms of the LLC Agreement.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) The name of the filing person is Excelsior Absolute Return Fund of
Funds, LLC. The Fund's principal executive office is located at 225 High Ridge
Road, Stamford, CT 06905 and the telephone number is (203) 352-4497. The
investment adviser of the Fund is U.S. Trust Hedge Fund Management, Inc. The
principal executive office of U.S. Trust Hedge Fund Management, Inc. is located
at 225 High Ridge Road, Stamford, CT 06905, and its telephone number is (203)
352-4497. The Fund's managers ("Manager(s)" or "Board of Managers" as the
context requires) are Virginia Breen, Jonathan B. Bulkeley, Douglas A. Lindgren
and Thomas F. McDevitt. The Managers' address is c/o Excelsior Absolute Return
Fund of Funds, LLC, 225 High Ridge Road, Stamford, CT 06905.
ITEM 4. TERMS OF THIS TENDER OFFER.
(a) (1) (i) Subject to the conditions set forth in the Offer, the Fund
will purchase up to $15 million of Interests that are tendered by Members and
not withdrawn as described in ITEM 1. The initial expiration date of the Offer
is 12:00 midnight, Eastern Time, on Wednesday, May 11, 2005, (such time and
date, the "Initial Expiration Date"), subject to any extension of the Offer. The
later of the Initial Expiration Date or the latest time and date to which the
Offer is extended is called the "Expiration Date."
(ii) The purchase price of Interests tendered to the Fund for
repurchase will be their net asset value, determined as of the Valuation Date
or, if the Offer is extended, on the last business day of the month in which the
Offer expires.
Members may tender their entire Interest, a portion of their
Interest defined as a specific dollar value or the portion of their Interest
above the required minimum capital account balance. Each Member that tenders its
entire Interest or a portion thereof that is accepted for purchase will be given
a Note within ten calendar days of the acceptance of the Member's Interest for
repurchase. The Note will be held for the Members in a special custody account
with PFPC. The Note will entitle the Member to be paid an amount equal to the
value, determined as of the Valuation Date, of the Interest or portion thereof
being purchased (subject to adjustment upon completion of the next annual audit
of the Fund's financial statements). This amount will be the value of the
Member's capital account (or the portion thereof being purchased) determined as
of the Valuation Date and will be based on the net asset value of the Fund's
assets determined as of that date, after giving effect to all allocations to be
made as of that date.
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If a Member tenders its entire Interest, the Note will entitle
the Member to receive an Initial Payment. Payment of this amount will be made
within 30 calendar days after the Valuation Date or, if the Fund has requested
withdrawals of its capital from any investment funds in order to finance the
purchase of Interests, within ten business days after the Fund has received at
least 95% of the aggregate amount withdrawn by the Fund from such investment
funds. The Note will also entitle a Member to receive a Contingent Payment equal
to the excess, if any, of (a) the net asset value of the Interest tendered by
the Member and accepted by the Fund for purchase as of the Valuation Date, as it
may be adjusted based on the annual audit of the Fund's March 31, 2006,
financial statements, over (b) the Initial Payment. The Fund will deposit the
aggregate amount of the Contingent Payments in a separate, interest bearing
account and will pay any interest actually earned thereon PRO RATA to the
Members whose Interests have been repurchased. The Contingent Payment (plus any
interest earned) will be payable within ten calendar days after the completion
of the Fund's next annual audit. It is anticipated that the annual audit of the
Fund's financial statements will be completed within 60 days after March 31,
2006, the fiscal year end of the Fund.
A Member that tenders for purchase only a portion of such
Member's Interest will receive a Note that will entitle the Member to a payment
in cash and/or marketable securities (valued in accordance with the LLC
Agreement) equal to 100% of the net asset value of the Interest tendered by the
Member that is accepted for purchase by the Fund. Payment pursuant to the Note
will be made within 30 calendar days after the Valuation Date or, if the Fund
has requested withdrawals of its capital from any investment funds in order to
finance the purchase of Interests, within ten business days after the Fund has
received at least 95% of the aggregate amount withdrawn by the Fund from such
investment funds.
Although the Fund has retained the option to pay all or a
portion of the purchase price for Interests by distributing marketable
securities, the purchase price will be paid entirely in cash except in the
unlikely event that the Board of Managers determines that the distribution of
securities is necessary to avoid or mitigate any adverse effect of the Offer on
the remaining Members. In such event, the Fund would make such payment on a pro
rata basis so that each Member would receive the same type of consideration.
A Member that tenders only a portion of such Member's Interest
for repurchase must tender a minimum of $25,000 and will be required to maintain
a capital account balance equal to $100,000 or more.
A copy of: (a) the Cover Letter to the Offer and Letter of
Transmittal; (b) the Offer; (c) a form of Letter of Transmittal; (d) a form of
Notice of Withdrawal of Tender; and (e) forms of Letters to Members from the
Fund that will be sent in connection with the Fund's acceptance of tenders of
Interest for repurchase are attached hereto as Exhibits A, B, C, D and E,
respectively.
(iii) The scheduled expiration date of the Offer is 12:00
midnight, Eastern Time, Wednesday, May 11, 2005.
(iv) Not applicable.
(v) The Fund reserves the right, at any time and from time to
time, to extend the period of time during which the Offer is pending by
notifying Members of such
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extension. If the Fund elects to extend the tender period, for the purpose of
determining the purchase price for tendered Interests, the estimated net asset
value of such Interests will be determined at the close of business on the last
business day of the month after the month in which the Offer actually expires.
During any such extension, all Interests previously tendered and not withdrawn
will remain subject to the Offer. The Fund also reserves the right, at any time
and from time to time, up to and including the Expiration Date, to: (a) cancel
the Offer in the circumstances set forth in Section 7 of the Offer and in the
event of such cancellation, not to purchase or pay for any Interests tendered
pursuant to the Offer; (b) amend the Offer; or (c) postpone the acceptance of
Interests for repurchase. If the Fund determines to amend the Offer or to
postpone the acceptance of Interests tendered, it will, to the extent necessary,
extend the period of time during which the Offer is open as provided above and
will promptly notify Members.
(vi) A tender of an Interest may be withdrawn at any time
before 12:00 midnight, Eastern Time, Wednesday, May 11, 2005 and, if the Fund
has not accepted such Interest for repurchase, at any time after Thursday, June
9, 2005, 40 business days from the commencement of the Offer.
(vii) Members wishing to tender an Interest pursuant to the
Offer should mail or fax a completed and executed Letter of Transmittal to the
Adviser, to the attention of Kathleen Flores, at the address set forth on page 2
of the Offer, or fax a completed and executed Letter of Transmittal to the
Adviser, also to the attention of Kathleen Flores, at the fax number set forth
on page 2 of the Offer. The completed and executed Letter of Transmittal must be
received by the Adviser, either by mail or by fax, no later than the Expiration
Date. The Fund recommends that all documents be submitted to the Adviser by
certified mail, return receipt requested, or by facsimile transmission. A Member
choosing to fax a Letter of Transmittal to the Adviser must also send or deliver
the original completed and executed Letter of Transmittal to the Adviser
promptly thereafter.
Any Member tendering an Interest pursuant to the Offer may
withdraw its tender as described above in ITEM 4(vi). To be effective, any
notice of withdrawal must be timely received by the Adviser at the address or
fax number set forth on page 2 of the Offer. A form to use to give notice of
withdrawal of a tender is available by calling the Adviser at the telephone
number indicated on page 2 of the Offer. A tender of an Interest properly
withdrawn shall not thereafter be deemed to be tendered for purposes of the
Offer. However, subsequent to the withdrawal of a tendered Interest, the
Interest may be tendered again prior to the Expiration Date by following the
procedures described above.
(viii) For purposes of the Offer, the Fund will be deemed
to have accepted (and thereby purchased) Interests that are tendered when it
gives written notice to the tendering Member of its election to purchase such
Member's Interest.
(ix) If more than $15 million of Interests are duly tendered
to the Fund prior to the Expiration Date and not withdrawn, the Fund will in its
sole discretion either: (a) accept additional Interests in accordance with Rule
13e-4(f)(1)(ii) under the Securities Exchange Act of 1934, as amended; (b)
extend the Offer, if necessary, and increase the amount of Interests that the
Fund is offering to purchase to an amount it believes sufficient to accommodate
the excess Interests tendered as well as any Interests tendered during the
extended Offer; or (c) accept Interests tendered on or before the Expiration
Date for payment on a PRO RATA basis based on the
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aggregate net asset value of tendered Interests. The Offer may be extended,
amended or canceled in various other circumstances described in (v) above.
(x) The purchase of Interests pursuant to the Offer will
have the effect of increasing the proportionate interest in the Fund of Members
that do not tender Interests. Members that retain their Interests may be subject
to increased risks that may possibly result from the reduction in the Fund's
aggregate assets resulting from payment for the Interests tendered. These risks
include the potential for greater volatility due to decreased diversification.
However, the Fund believes that this result is unlikely given the nature of the
Fund's investment program. A reduction in the aggregate assets of the Fund may
result in Members that do not tender Interests bearing higher costs to the
extent that certain expenses borne by the Fund are relatively fixed and may not
decrease if assets decline. These effects may be reduced to the extent that
additional subscriptions for Interests are made by new and existing Members on
July 1, 2005 and thereafter from time to time.
(xi) Not applicable.
(xii) The following discussion is a general summary of the
federal income tax consequences of the purchase of Interests by the Fund from
Members pursuant to the Offer. Members should consult their own tax advisors for
a complete description of the tax consequences to them of a purchase of their
Interests by the Fund pursuant to the Offer.
In general, a Member from which an Interest is purchased by
the Fund will be treated as receiving a distribution from the Fund and will
generally reduce (but not below zero) its adjusted tax basis in its Interest by
the amount of cash and the fair market value of property distributed to such
Member. Such Member generally will not recognize income or gain as a result of
the purchase, except to the extent (if any) that the amount of consideration
received by the Member exceeds such Member's then adjusted tax basis in such
Member's Interest. A Member's basis in such Member's Interest will be adjusted
for income, gain or loss allocated (for tax purposes) to such Member for periods
prior to the purchase of such Interest. Cash distributed to a Member in excess
of the adjusted tax basis of such Member's Interest is taxable as a capital gain
or ordinary income, depending on the circumstances. A Member that has its entire
Interest purchased by the Fund for cash may generally recognize a loss, but only
to the extent that the amount of consideration received from the Fund is less
than the Member's then adjusted tax basis in such Member's Interest.
(a) (2) Not applicable.
(b) Not applicable.
ITEM 5. PAST CONTRACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS WITH
RESPECT TO THE ISSUER'S SECURITIES.
The Fund's Confidential Memorandum dated September 2003 (the
"Confidential Memorandum"), and the LLC Agreement, which were provided to each
Member in advance of subscribing for Interests, provide that the Fund's Board of
Managers has the discretion to determine whether the Fund will purchase
Interests from Members from time to time pursuant to written tenders. The
Confidential Memorandum also states that the Adviser expects that it will
recommend to the Board of Managers that the Fund purchase Interests from Members
twice each
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year, effective as of the last business day in June and December. The Fund
previously offered to purchase Interests from Members pursuant to a written
tender offer effective as of December 31, 2004. The Fund is not aware of any
contract, arrangement, understanding or relationship relating, directly or
indirectly, to this Offer (whether or not legally enforceable) between: (i) the
Fund and the Adviser or any Manager of the Fund or any person controlling the
Fund or controlling the Adviser or any Manager of the Fund; and (ii) any person,
with respect to Interests. However, the LLC Agreement provides that the Fund
shall be dissolved if the Interest of any Member that has submitted a written
request, in accordance with the terms of the LLC Agreement, to tender its entire
Interest for purchase by the Fund has not been purchased within a period of two
years of the request.
ITEM 6. PURPOSES OF THIS TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER
OR AFFILIATE.
(a) The purpose of the Offer is to provide liquidity to Members that
hold Interests as contemplated by and in accordance with the procedures set
forth in the Confidential Memorandum and the LLC Agreement.
(b) Interests that are tendered to the Fund in connection with the
Offer will be retired, although the Fund may issue Interests from time to time
in transactions not involving any public offering, conducted pursuant to Rule
506 of Regulation D under the Securities Act of 1933, as amended. The Fund
currently expects that it will continue to accept subscriptions for Interests as
of the first day of each calendar quarter, but is under no obligation to do so.
(c) Neither the Fund nor the Adviser nor the Board of Managers have any
plans or proposals that relate to or would result in: (1) the acquisition by any
person of additional Interests (other than the Fund's intention to accept
subscriptions for Interests on the first day of each calendar quarter and from
time to time in the discretion of the Fund) or the disposition of Interests; (2)
an extraordinary transaction, such as a merger, reorganization or liquidation,
involving the Fund; (3) any material change in the present distribution policy
or indebtedness or capitalization of the Fund; (4) any change in the identity of
the Adviser or the members of the Board of Managers, or in the management of the
Fund including, but not limited to, any plans or proposals to change the number
or the term of the members of the Board of Managers, to fill any existing
vacancy on the Board of Managers or to change any material term of the
investment advisory arrangements with the Adviser; (5) a sale or transfer of a
material amount of assets of the Fund (other than as the Board of Managers
determines may be necessary or appropriate to finance all or a portion of the
purchase price for Interests to be acquired pursuant to the Offer or in
connection with the ordinary portfolio transactions of the Fund); (6) any other
material change in the Fund's structure or business, including any plans or
proposals to make any changes in its fundamental investment policies, as
amended, for which a vote would be required by Section 13 of the 1940 Act; or
(7) any changes in the LLC Agreement or other actions that might impede the
acquisition of control of the Fund by any person. Because Interests are not
traded in any market, Sections (6), (7) and (8) of Regulation M-A ss.229.1006(c)
are not applicable to the Fund.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The Fund expects that the purchase price for Interests acquired
pursuant to the Offer, which will not exceed $15 million (unless the Fund elects
to purchase a greater amount), will be derived from one or more of the following
sources: (i) cash on hand; (ii) the proceeds from
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the sale of and/or delivery of securities and portfolio assets held by the Fund;
and (iii) possibly borrowings, as described in paragraph (b) below. The Fund
will segregate, with its custodian, cash or U.S. government securities or other
liquid securities equal to the value of the amount estimated to be paid under
any Notes as described above.
(b) Neither the Fund nor the Adviser nor the Board of Managers have
determined at this time to borrow funds to purchase Interests tendered in
connection with the Offer. However, depending on the dollar amount of Interests
tendered and prevailing general economic and market conditions, the Fund, in its
sole discretion, may decide to seek to borrow money to finance all or a portion
of the purchase price for Interests, subject to compliance with applicable law.
If the Fund finances any portion of the purchase price in that manner, it will
deposit assets in a special custody account with its custodian, to serve as
collateral for any amounts so borrowed, and if the Fund were to fail to repay
any such amounts, the lender would be entitled to satisfy the Fund's obligations
from the collateral deposited in the special custody account. The Fund expects
that the repayment of any amounts borrowed will be made from additional funds
contributed to the Fund by existing and/or new Members, withdrawal of its
capital from the investment funds in which it has invested, or from proceeds of
the sale of securities and portfolio assets held by the Fund.
(d) Not applicable.
ITEM 8. INTEREST IN SECURITIES OF THE ISSUER.
(a) Based on March 31, 2005 estimated values, the following persons
that may be deemed to control the Fund, may control a person that controls the
Fund and/or may be controlled by a person controlling the Fund, hold Interests:
(i) Douglas A. Lindgren, the principal manager of the Fund, a
Managing Director of U.S. Trust Company, N.A. (U.S. Trust Company, N.A.,
together with its affiliated banks, "U.S. Trust") and head of its alternative
investments division and the Chairman of the Adviser, owns $105,417.95 (less
than 1%) of the outstanding Interests;
(ii) Lee Gardella, a Senior Vice President of U.S. Trust, owns
through the Lee Gardella, IRA $27,352.30 (less than 1%) of the outstanding
Interests;
(iii) James L. Bailey, an Executive Vice President of U.S. Trust,
owns $215,118.18 (less than 1%) of the outstanding Interests;
(iv) Kristina H. McDonough, a Managing Director of U.S. Trust,
owns $109,409.20 (less than 1%) of the outstanding Interests;
(v) Alicia B. Lindgren, the wife of principal manager Douglas
A. Lindgren, owns $209,680.54 (less than 1%) of the outstanding Interests; and
(vi) Alicia B. Lindgren, the wife of principal manager Douglas
A. Lindgren, owns through the Alicia Lindgren IRA $135,743.99 (less than 1%) of
the outstanding Interests.
None of the foregoing persons have decided to tender any of their
Interests at this time.
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(b) Other than the acceptance of subscriptions for Interests as of
April 1, 2005, there have been no transactions involving Interests that were
effected during the past 60 business days by the Fund, the Adviser, any Manager
or any person controlling the Fund or the Adviser.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
No persons have been employed, retained or are to be compensated by the
Fund to make solicitations or recommendations in connection with the Offer.
ITEM 10. FINANCIAL STATEMENTS.
(a) (1) Reference is made to the following financial statements of the
Fund, which the Fund has prepared and furnished to Members pursuant to Rule
30e-1 under the 1940 Act and filed with the Securities and Exchange Commission
pursuant to Rule 30b2-1 under the 1940 Act, and which are incorporated by
reference in their entirety for the purpose of filing this Schedule TO:
Audited financial statements for the period from December 1, 2003
(commencement of operations) to March 31, 2004, previously filed on
EDGAR on Form N-CSR on June 8, 2004; and
Unaudited financial statements for the period from April 1, 2004 to
September 30, 2004, previously filed on EDGAR on Form N-CSR on December
9, 2004.
The Fund's Board of Managers and Audit Committee have terminated Ernst
& Young LLP ("Ernst & Young") as the Fund's independent public accountants as a
result of concerns regarding their independence at the time of the issuance of
their report on the Fund's March 31, 2004 financial statements. These concerns
are the result of certain real estate consulting services performed by Ernst &
Young on a contingent fee basis for Charles Schwab & Co., Inc., an affiliate of
the Fund's Adviser. During the period Ernst & Young served as independent
accountants of the Fund, there was no disagreement between Ernst & Young and the
Fund on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedures, which disagreement, if not resolved
to the satisfaction of Ernst & Young, would have caused it to make reference to
the subject matter of the disagreement in its report. The Fund has no reason to
believe that the Fund's March 31, 2004 financial statements were not prepared in
accordance with generally accepted accounting principles, or that such financial
statements do not fairly represent, in all material respects, the financial
condition of the Fund as of their dates. The Board and the Audit Committee have
engaged the independent accounting firm of Deloitte & Touche LLP to perform a
re-audit of the Fund's March 31, 2004 financial statements ("Re-audit") and to
perform the audit for the fiscal year ended March 31, 2005. The results of the
Re-audit have been reported to the Fund and its shareholders. Deloitte & Touche
LLP reported no material differences in the Re-audit.
(2) The Fund is not required to and does not file quarterly
unaudited financial statements under the Securities Exchange Act of 1934, as
amended. The Fund does not have shares, and consequently does not have earnings
per share information.
(3) Not applicable.
-10-
(4) The Fund does not have shares, and consequently does not have
book value per share information.
(b) The Fund's assets will be reduced by the amount of the tendered
Interests that are purchased by the Fund. Thus, income relative to assets may be
affected by the Offer. The Fund does not have shares and consequently does not
have earnings or book value per share information.
ITEM 11. ADDITIONAL INFORMATION.
(a) (1) None.
(2) None.
(3) Not applicable.
(4) Not applicable.
(5) None.
(b) None.
ITEM 12. EXHIBITS.
Reference is hereby made to the following exhibits which collectively
constitute the Offer to Members and are incorporated herein by reference:
A. Cover Letter to the Offer and Letter of Transmittal.
B. The Offer.
C. Form of Letter of Transmittal.
D. Form of Notice of Withdrawal of Tender.
E. Forms of Letters from the Fund to Members in connection with the
Fund's acceptance of tenders of Interests.
-11-
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
By: Board of Managers
By: /s/ Douglas A. Lindgren
---------------------------
Name: Douglas A. Lindgren
Title: Manager and Chairman
April 14, 2005
-12-
EXHIBIT INDEX
EXHIBIT
A Cover Letter to the Offer and Letter of Transmittal.
B The Offer.
C Form of Letter of Transmittal.
D Form of Notice of Withdrawal of Tender.
E Forms of Letters from the Fund to Members in connection with the Fund's
acceptance of tenders of Interests.
-13-
EXHIBIT A
Cover Letter to the Offer and Letter of Transmittal
Excelsior Absolute Return Fund of Funds, LLC Letterhead
IF YOU DO NOT WANT TO SELL YOUR LIMITED LIABILITY COMPANY INTERESTS
AT THIS TIME, PLEASE DISREGARD THIS NOTICE.
THIS IS SOLELY A NOTIFICATION OF THE FUND'S TENDER OFFER.
April 14, 2005
Dear Member:
We are writing to inform you of important dates relating to a tender
offer by Excelsior Absolute Return Fund of Funds, LLC (the "Fund") to purchase
limited liability company interests in the Fund ("Interest" or "Interests" as
the context requires) from investors. If you are not interested in selling your
Interest at this time, please disregard this notice and take no action.
The tender offer period will begin at 12:01 a.m., Eastern Time, on
Thursday, April 14, 2005. The purpose of the tender offer is to provide
liquidity to members of the Fund holding Interests. Interests may be presented
to the Fund for purchase only by tendering them during one of the Fund's
announced tender offers.
Should you wish to tender your Interest or a portion of your Interest
for purchase by the Fund during this tender offer period, please complete and
return the enclosed Letter of Transmittal in the enclosed postage-paid envelope
or by fax so that it arrives no later than May 11, 2005. If you do not wish to
sell your Interests, simply disregard this notice. NO ACTION IS REQUIRED IF YOU
DO NOT WISH TO SELL ANY PORTION OF YOUR INTEREST AT THIS TIME.
All tenders of Interests must be received by the Fund's adviser, U.S.
Trust Hedge Fund Management, Inc., either by mail or by fax (if by fax, please
deliver an original, executed copy promptly thereafter) in good order by May 11,
2005.
If you have any questions, please refer to the attached Offer document,
which contains additional important information about the tender offer, or call
Kathleen Flores at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
A-1
EXHIBIT B
The Offer
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
225 High Ridge Road
Stamford, CT 06905
OFFER TO PURCHASE UP TO $15 MILLION OF OUTSTANDING
INTERESTS AT NET ASSET VALUE
DATED APRIL 14, 2005
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, MAY 11, 2005,
UNLESS THE OFFER IS EXTENDED
Dear Member:
Excelsior Absolute Return Fund of Funds, LLC, a closed-end,
non-diversified, management investment company organized as a Delaware limited
liability company (the "Fund"), is offering to purchase for cash on the terms
and conditions set forth in this offer to purchase and the related Letter of
Transmittal (which together constitute the "Offer") up to $15 million of
interests in the Fund or portions thereof pursuant to tenders by members of the
Fund ("Members") at a price equal to their net asset value, determined as of
June 30, 2005, if the Offer expires on May 11, 2005. If the Fund elects to
extend the tender offer period, for the purpose of determining the purchase
price for tendered interests, the net asset value of such interests will be
determined at the close of business on the last business day of the month in
which the Offer actually expires. (As used in this Offer, the term "Interest" or
"Interests," as the context requires, shall refer to the interests in the Fund
and portions thereof representing beneficial interests in the Fund.) This Offer,
which is being made to all Members, is conditioned on a minimum of $25,000 in
Interests being tendered by a Member tendering only a portion of an Interest for
repurchase, and is subject to certain other conditions described below.
Interests are not traded on any established trading market and are subject to
strict restrictions on transferability pursuant to the Fund's Limited Liability
Company Agreement dated as of September 2, 2003 (the "LLC Agreement").
Members should realize that the value of the Interests tendered in this
Offer will likely change between March 31, 2005 (the last time net asset value
was calculated) and June 30, 2005, when the value of Interests tendered to the
Fund for repurchase will be determined for purposes of calculating the purchase
price of such Interests. Members tendering their Interests should also note that
they will remain Members, with respect to the Interests tendered and accepted
for purchase by the Fund, through June 30, 2005, the valuation date of the Offer
when the net asset value of their Interest is calculated. Any tendering Members
that wish to obtain the estimated net asset value of their Interests should
contact U.S. Trust Hedge Fund Management, Inc., at the telephone number or
address set forth below, Monday through Friday, except holidays, during normal
business hours of 9:00 a.m. to 5:00 p.m. (Eastern Time).
B-1
Members desiring to tender all or any portion of their Interests for
repurchase in accordance with the terms of the Offer should complete and sign
the attached Letter of Transmittal and mail or fax it to the Fund in the manner
set forth in Section 4 below.
IMPORTANT
Neither the Fund, nor its investment adviser nor its Board of Managers
make any recommendation to any Member as to whether to tender or refrain from
tendering Interests. Members must make their own decisions whether to tender
Interests, and, if they choose to do so, the portion of their Interests to
tender.
Because each Member's investment decision is a personal one, based on
their own financial circumstances, no person has been authorized to make any
recommendation on behalf of the Fund as to whether Members should tender
Interests pursuant to the Offer. No person has been authorized to give any
information or to make any representations in connection with the Offer other
than those contained herein or in the Letter of Transmittal. If given or made,
such recommendation and such information and representations must not be relied
on as having been authorized by the Fund.
This transaction has neither been approved nor disapproved by the
Securities and Exchange Commission. Neither the Securities and Exchange
Commission nor any state securities commission have passed on the fairness or
merits of this transaction or on the accuracy or adequacy of the information
contained in this document. Any representation to the contrary is unlawful.
Questions, requests for assistance and requests for additional copies
of the Offer may be directed to the Adviser:
U.S. Trust Hedge Fund Management, Inc.
225 High Ridge Road
Stamford, CT 06905
Attn: Kathleen Flores
Phone: (203) 352-4497
Fax: (203) 352-4456
B-2
TABLE OF CONTENTS
1. Background and Purpose of the Offer.....................................B-6
2. Offer to Purchase and Price.............................................B-7
3. Amount of Tender........................................................B-8
4. Procedure for Tenders...................................................B-8
5. Withdrawal Rights.......................................................B-9
6. Purchases and Payment...................................................B-9
7. Certain Conditions of the Offer........................................B-11
8. Certain Information About the Fund.....................................B-12
9. Certain Federal Income Tax Consequences................................B-13
10. Miscellaneous..........................................................B-13
11. Financial Information..................................................B-14
B-3
SUMMARY TERM SHEET
o As stated in the offering documents of Excelsior Absolute
Return Fund of Funds, LLC (hereinafter "we" or the "Fund"), we
will purchase your limited liability company interests in the
Fund ("Interest" or "Interests" as the context requires) at
their net asset value (that is, the value of the Fund's assets
minus its liabilities, multiplied by the proportionate
interest in the Fund you desire to redeem). This offer (the
"Offer") will remain open until 12:00 midnight, Eastern Time,
on Wednesday, May 11, 2005 (such time and date being
hereinafter called the "Initial Expiration Date"), or such
later date as corresponds to any extension of the Offer. The
later of the Initial Expiration Date or the latest time and
date to which the Offer is extended is called the "Expiration
Date." The net asset value will be calculated for this purpose
on June 30, 2005 or, if the Offer is extended, on the last
business day of the month in which the Offer actually expires
(the "Valuation Date").
o The Fund reserves the right to adjust the Valuation Date to
correspond with any extension of the Offer. The Fund will
review the net asset value calculation of Interests as of June
30, 2005, during the Fund's audit for its fiscal year ending
March 31, 2006, which the Fund expects will be completed by
the end of May 2006. This June 30, 2005 net asset value, as
reviewed, will be used to determine the final amount paid for
tendered Interests.
o You may tender your entire Interest, a portion of your
Interest defined as a specific dollar value or the portion of
your Interest above the minimum required capital account
balance. If you tender your entire Interest (or a portion of
your Interest) and we accept that Interest for repurchase, we
will give you a non-interest bearing, non-transferable
promissory note (the "Note") that will be held for you in a
special custody account with PFPC Trust Company (PFPC Trust
Company, together with its affiliated banks, "PFPC") and will
entitle you to an amount equal to the net asset value of the
Interest tendered (valued in accordance with the Fund's
Liability Company Agreement dated July 1, 2003 (the "LLC
Agreement")), determined as of June 30, 2005 (or if the Offer
is extended, the net asset value determined on the Valuation
Date).
o If you tender your entire Interest, the Note will entitle you
to an initial payment in cash and/or marketable securities
(valued in accordance with the LLC Agreement) equal to at
least 95% of the unaudited net asset value of the Interest
(the "Initial Payment") which will be paid to your account
with PFPC or mailed to you if you do not have a PFPC account,
within 30 calendar days after the Valuation Date or, if we
have requested withdrawals of capital from any investment
funds in order to finance the purchase of Interests, ten
business days after we have received at least 95% of the total
amount withdrawn from such investment funds.
B-4
o The Note will also entitle you to a contingent payment (the
"Contingent Payment") equal to the excess, if any, of (a) the
net asset value of the Interest tendered as of the Valuation
Date (as it may be adjusted based upon the next annual audit
of the Fund's financial statements) over (b) the Initial
Payment. The Fund will deposit the aggregate amount of the
Contingent Payments in a separate, interest bearing account
and will pay any interest actually earned thereon PRO RATA to
the Members whose Interests have been repurchased. The
Contingent Payment (plus any interest earned) will be paid
within ten calendar days after the completion of the Fund's
next annual audit. The Contingent Payment will also be paid to
your PFPC account or mailed to you if you do not have a PFPC
account.
o If you tender only a portion of your Interest, the Note will
entitle you to a payment in cash and/or marketable securities
(valued in accordance with the LLC Agreement) equal to 100% of
the unaudited net asset value of the Interest and will be paid
to your account with PFPC or mailed to you if you do not have
a PFPC account, within 30 calendar days after the Valuation
Date or, if we have requested withdrawals of capital from any
investment funds in order to fund the purchase of Interests,
within ten business days after we have received at least 95%
of the total amount withdrawn from such investment funds.
o If you tender only a portion of your Interest, you are
required to tender a minimum of $25,000 and you must maintain
a capital account balance of $100,000 or more. We reserve the
right to purchase less than the amount you tender if the
purchase would cause your capital account to have less than
the required minimum balance or if the total amount tendered
by members of the Fund ("Members") is more than $15 million.
o If we accept the tender of your entire Interest or a portion
of your Interest, we will pay the proceeds from: cash on hand;
withdrawals of capital from the investment funds in which we
have invested; the proceeds from the sale of securities and
portfolio assets held by the Fund; and/or borrowings (which we
do not currently intend to do).
o Following this summary is a formal notice of our offer to
purchase your Interest. This Offer remains open to you until
12:00 midnight, Eastern Time, on Wednesday, May 11, 2005, the
expected expiration date of the Offer. Until that time, you
have the right to change your mind and withdraw any tender of
your Interest. You will also have the right to withdraw the
tender of your Interest at any time after June 9, 2005, 40
business days from the commencement of the Offer, assuming
your Interest has not yet been accepted for purchase by the
Fund on or before that date.
o If you would like us to purchase your Interest or a portion of
your Interest, you should (i) mail the Letter of Transmittal
(enclosed with the Offer), to our investment adviser, U.S.
Trust Hedge Fund Management, Inc. (the "Adviser"),
B-5
225 High Ridge Road, Stamford, CT 06905, attention Kathleen
Flores, or (ii) fax it to the Adviser at (203) 352-4456, so
that it is received before 12:00 midnight, Eastern Time, on
Wednesday, May 11, 2005. If you choose to fax the Letter of
Transmittal, you should mail the original Letter of
Transmittal to the Adviser promptly after you fax it (although
the original does not have to be received before 12:00
midnight, Eastern Time, on Wednesday, May 11, 2005). Of
course, the value of your Interests will change between March
31, 2005 (the last time net asset value was calculated) and
June 30, 2005, when the value of your Interest will be
determined for purposes of calculating the purchase price to
be paid by us for your Interest.
o If you would like to obtain the estimated net asset value of
your Interest, which we calculate monthly, based upon the
information we receive from the managers of the investment
funds in which we invest, you may contact the Adviser at (203)
352-4497 or at the address set forth on page 2, Monday through
Friday, except holidays, during normal business hours of 9:00
a.m. to 5:00 p.m. (Eastern Time).
o Please note that, just as you have the right to withdraw the
tender of your Interest, we have the right to cancel, amend or
postpone this Offer at any time before 12:00 midnight, Eastern
Time, on Wednesday, May 11, 2005. Also realize that although
the Offer expires on May 11, 2005, you will remain a Member
with respect to the Interest you tendered that is accepted for
purchase by the Fund through June 30, 2005, when the net asset
value of your Interest is calculated.
1. BACKGROUND AND PURPOSE OF THE OFFER. The purpose of the Offer is to
provide liquidity to Members that hold Interests, as contemplated by and in
accordance with the procedures set forth in the Fund's Confidential Memorandum
dated September 2003 (the "Confidential Memorandum"), and the LLC Agreement. The
Confidential Memorandum and the LLC Agreement, which were provided to each
Member in advance of subscribing for Interests, provide that the board of
managers of the Fund (each a "Manager," and collectively, the "Board of
Managers") has the discretion to determine whether the Fund will purchase
Interests from Members from time to time pursuant to written tenders. The
Confidential Memorandum also states that the Adviser expects that it will
recommend to the Board of Managers that the Fund offer to purchase Interests
from Members twice each year, effective as of the last business day of June and
December. The Fund previously offered to purchase Interests from Members
pursuant to a written tender effective as of December 31, 2004. Because there is
no secondary trading market for Interests and transfers of Interests are
prohibited without prior approval of the Fund, the Board of Managers has
determined, after consideration of various matters, including but not limited to
those set forth in the Confidential Memorandum, that the Offer is in the best
interests of Members in order to provide liquidity for Interests as contemplated
in the Confidential Memorandum and the LLC Agreement. The Board of Managers
intends to consider the continued desirability of the Fund making an offer to
purchase Interests from time to time in the future, but the Fund is not required
to make any such offer.
B-6
The purchase of Interests pursuant to the Offer will have the effect of
increasing the proportionate interest in the Fund of Members that do not tender
Interests. Members that retain their Interests may be subject to increased risks
due to the reduction in the Fund's aggregate assets resulting from payment for
the Interests tendered. These risks include the potential for greater volatility
due to decreased diversification. However, the Fund believes that this result is
unlikely given the nature of the Fund's investment program. A reduction in the
aggregate assets of the Fund may result in Members that do not tender Interests
bearing higher costs to the extent that certain expenses borne by the Fund are
relatively fixed and may not decrease if assets decline. These effects may be
reduced to the extent that additional subscriptions for Interests are made by
new and existing Members on July 1, 2005 and thereafter from time to time.
Interests that are tendered to the Fund in connection with this Offer
will be retired, although the Fund may issue new Interests from time to time in
transactions not involving any public offering conducted pursuant to Rule 506 of
Regulation D under the Securities Act of 1933, as amended. The Fund currently
expects that it will continue to accept subscriptions for Interests as of the
first day of each calendar quarter, but is under no obligation to do so.
2. OFFER TO PURCHASE AND PRICE. The Fund will, on the terms and subject
to the conditions of the Offer, purchase up to $15 million of those outstanding
Interests that are properly tendered by Members and not withdrawn (in accordance
with Section 5 below) prior to the Expiration Date. The Fund reserves the right
to extend, amend or cancel the Offer as described in Sections 3 and 7 below. The
purchase price of an Interest tendered will be its net asset value on June 30,
2005 or, if the Offer is extended, on the Valuation Date, payable as set forth
in Section 6. The Fund reserves the right to adjust the Valuation Date to
correspond with any extension of the Offer. As of the close of business on March
31, 2005, the unaudited net asset value of an Interest corresponding to an
initial capital contribution of $250,000 on the following closing dates of the
Fund was as follows:
If You Invested $250,000 Your Unaudited Net Asset Value As Of
ON THE FOLLOWING CLOSING DATE MARCH 31, 2005 WOULD BE
----------------------------- -----------------------
January 1, 2005 $250,641.44
October 1, 2004 $262,233.08
July 1, 2004 $263,344.73
April 1, 2004 $260,855.09
January 1, 2004 $268,897.96
December 1, 2003 $273,523.00
As of the close of business on March 31, 2005, there was approximately
$224,484,639 outstanding in capital of the Fund held in Interests (based on the
unaudited net
B-7
asset value of the Fund on that date). Members may obtain monthly estimated net
asset value information, which the Fund calculates based on the information it
receives from the managers of the investment funds in which the Fund invests,
until the expiration of the Offer, by contacting the Adviser at the telephone
number or address set forth on page 2, Monday through Friday, except holidays,
during normal business hours of 9:00 a.m. to 5:00 p.m. (Eastern Time).
3. AMOUNT OF TENDER. Subject to the limitations set forth below,
Members may tender their entire Interest, a portion of their Interest defined as
a specific dollar value or the portion of their Interest above the required
minimum capital account balance, as described below. A Member that tenders for
purchase only a portion of such Member's Interest shall be required to maintain
a capital account balance of $100,000 or more. If a Member tenders an amount
that would cause the Member's capital account balance to fall below the required
minimum, the Fund reserves the right to reduce the amount to be purchased from
such Member so that the required minimum balance is maintained. The Offer, which
is being made to all Members, is conditioned on a minimum amount of $25,000 in
Interests being tendered by the Member if the Member is tendering only a portion
of an Interest for repurchase.
If the amount of Interests that are properly tendered pursuant to the
Offer and not withdrawn pursuant to Section 5 below is less than or equal to $15
million (or such greater amount as the Fund may elect to purchase pursuant to
the Offer), the Fund will, on the terms and subject to the conditions of the
Offer, purchase all of the Interests so tendered unless the Fund elects to
cancel or amend the Offer, or postpone acceptance of tenders made pursuant to
the Offer, as provided in Section 7 below. If more than $15 million of Interests
are duly tendered to the Fund prior to the Expiration Date and not withdrawn
pursuant to Section 5 below, the Fund will in its sole discretion either (a)
accept additional Interests in accordance with Rule 13e-4(f)(1)(ii) under the
Securities Exchange Act of 1934, as amended; (b) extend the Offer, if necessary,
and increase the amount of Interests that the Fund is offering to purchase to an
amount it believes sufficient to accommodate the excess Interests tendered as
well as any Interests tendered during the extended Offer; or (c) accept
Interests tendered on or before the Expiration Date for payment on a PRO RATA
basis based on the aggregate net asset value of tendered Interests. The Offer
may be extended, amended or canceled in various other circumstances described in
Section 7 below.
4. PROCEDURE FOR TENDERS. Members wishing to tender Interests pursuant
to the Offer should either: (a) mail a completed and executed Letter of
Transmittal to the Adviser, to the attention of Kathleen Flores, at the address
set forth on page 2, or (b) fax a completed and executed Letter of Transmittal
to the Adviser, also to the attention of Kathleen Flores, at the fax number set
forth on page 2. The completed and executed Letter of Transmittal must be
received by the Adviser, either by mail or by fax, no later than the Expiration
Date.
The Fund recommends that all documents be submitted to the Adviser via
certified mail, return receipt requested, or by facsimile transmission. A Member
choosing to fax a Letter of Transmittal to the Adviser must also send or deliver
the original completed and executed Letter of Transmittal to the Adviser
promptly thereafter. Members wishing to confirm receipt of a Letter of
Transmittal may contact the Adviser at the address or telephone number set forth
on page 2. The method of delivery of any documents is at the election and
complete risk of the Member tendering an Interest including, but not limited to,
the failure of the Adviser to
B-8
receive any Letter of Transmittal or other document submitted by facsimile
transmission. All questions as to the validity, form, eligibility (including
time of receipt) and acceptance of tenders will be determined by the Fund, in
its sole discretion, and such determination shall be final and binding. The Fund
reserves the absolute right to reject any or all tenders determined by it not to
be in appropriate form or the acceptance of or payment for which would, in the
opinion of counsel for the Fund, be unlawful. The Fund also reserves the
absolute right to waive any of the conditions of the Offer or any defect in any
tender with respect to any particular Interest or any particular Member, and the
Fund's interpretation of the terms and conditions of the Offer will be final and
binding. Unless waived, any defects or irregularities in connection with tenders
must be cured within such time as the Fund shall determine. Tenders will not be
deemed to have been made until the defects or irregularities have been cured or
waived. Neither the Fund nor the Adviser nor the Board of Managers shall be
obligated to give notice of any defects or irregularities in tenders, nor shall
any of them incur any liability for failure to give such notice.
5. WITHDRAWAL RIGHTS. Any Member tendering an Interest pursuant to this
Offer may withdraw its tender at any time prior to or on the Expiration Date
and, if such Member's Interest has not yet been accepted for purchase by the
Fund, at any time after June 9, 2005, 40 business days from the commencement of
the Offer. To be effective, any notice of withdrawal of a tender must be timely
received by the Adviser at the address or fax number set forth on page 2. A form
to give notice of withdrawal of a tender is available by calling the Adviser at
the telephone number indicated on page 2. All questions as to the form and
validity (including time of receipt) of notices of withdrawal of the tender will
be determined by the Fund, in its sole discretion, and such determination shall
be final and binding. A tender of Interests properly withdrawn shall not
thereafter be deemed to be tendered for purposes of the Offer. However,
withdrawn Interests may be tendered again prior to the Expiration Date by
following the procedures described in Section 4.
6. PURCHASES AND PAYMENT. For purposes of the Offer, the Fund will be
deemed to have accepted (and thereby purchased) Interests that are tendered as,
if and when, it gives written notice to the tendering Member of its election to
purchase such Interest. As stated in Section 2 above, the purchase price of an
Interest tendered by any Member will be the net asset value thereof determined
as of June 30, 2005, if the Offer expires on the Initial Expiration Date, and
otherwise the net asset value thereof as of the last business day of the month
in which the Offer expires. The net asset value will be determined after all
allocations to capital accounts of the Member required to be made by the LLC
Agreement have been made.
Members may tender their entire Interest, a portion of their Interest
defined as a specific dollar value or the portion of their Interest above the
required minimum capital account balance. Each Member that tenders its entire
Interest or a portion thereof that is accepted for purchase will be given a Note
within ten calendar days of the acceptance of the Member's Interest for
repurchase. The Note will be held for the Member in a special custody account
with PFPC. The Note will entitle the Member to be paid an amount equal to the
value, determined as of the Valuation Date, of the Interest or portion thereof
being purchased (subject to adjustment upon completion of the next annual audit
of the Fund's financial statements). This amount will be the value of the
Member's capital account (or the portion thereof being purchased) determined as
of the Valuation Date and will be based on the net asset value of the Fund's
assets determined as of that date, after giving effect to all allocations to be
made as of that date.
B-9
If a Member tenders its entire Interest, the Note will entitle the
Member to receive an Initial Payment in cash and/or marketable securities
(valued in accordance with the LLC Agreement) equal to at least 95% of the
unaudited net asset value of the Interest tendered and accepted for purchase by
the Fund, determined as of the Valuation Date. Payment of this amount will be
made within 30 calendar days after the Valuation Date or, if the Fund has
requested withdrawals of its capital from any investment funds in order to
finance the purchase of Interests, within ten business days after the Fund has
received at least 95% of the aggregate amount withdrawn by the Fund from such
investment funds. The Note will also entitle a Member to receive a Contingent
Payment equal to the excess, if any, of (a) the net asset value of the Interest
tendered by the Member and accepted by the Fund for purchase as of the Valuation
Date, as it may be adjusted based on the next annual audit of the Fund's March
31, 2006, financial statements, over (b) the Initial Payment. The Fund will
deposit the aggregate amount of the Contingent Payments in a separate, interest
bearing account and will pay any interest actually earned thereon PRO RATA to
the Members whose Interests have been repurchased. The Contingent Payment (plus
any interest earned) will be payable within ten calendar days after the
completion of the Fund's next annual audit. It is anticipated that the annual
audit of the Fund's financial statements will be completed within 60 days after
March 31, 2006, the fiscal year end of the Fund.
A Member that tenders for purchase only a portion of such Member's
Interest will receive a Note that will entitle the Member to a payment in cash
and/or marketable securities (valued in accordance with the LLC Agreement) equal
to 100% of the net asset value of the Interest tendered by the Member that is
accepted for purchase by the Fund. Payment pursuant to the Note will be made
within 30 calendar days after the Valuation Date or, if the Fund has requested
withdrawals of its capital from any investment funds in order to finance the
purchase of Interests, within ten business days after the Fund has received at
least 95% of the aggregate amount withdrawn by the Fund from such investment
funds.
Although the Fund has retained the option to pay all or a portion of
the purchase price for Interests by distributing marketable securities, the
purchase price will be paid entirely in cash except in the unlikely event that
the Board of Managers determines that the distribution of securities is
necessary to avoid or mitigate any adverse effect of the Offer on the remaining
Members. In such event, the Fund would make such payment on a pro rata basis so
that each Member would receive the same type of consideration.
The Note pursuant to which Members will receive the Initial Payment and
Contingent Payment (together, the "Payments") will be held in a special custody
account with PFPC for the benefit of Members tendering Interests in the Fund.
All payments due pursuant to the Note will also be deposited directly to the
tendering Member's account at PFPC if the Member has an account with PFPC and
will be subject upon withdrawal from such accounts to any fees that PFPC would
customarily assess upon the withdrawal of cash from such account. Those Members
that do not have a PFPC account will receive any payments due under the Note
through the mail at the address listed in the Fund's records unless the Fund is
advised in writing of a change of address.
It is expected that cash payments for Interests acquired pursuant to
the Offer, which will not exceed $15 million (unless the Fund elects to purchase
a greater amount), will be
B-10
derived from: (a) cash on hand; (b) withdrawal of capital from the investment
funds in which the Fund invests; (c) the proceeds from the sale of securities
and portfolio assets held by the Fund; and/or (d) possibly borrowings, as
described below. The Fund will segregate with its custodian cash or U.S.
government securities or other liquid securities equal to the value of the
amount estimated to be paid under the Notes, as described above. Neither the
Fund nor the Board of Managers nor the Adviser have determined at this time to
borrow funds to purchase Interests tendered in connection with the Offer.
However, depending on the dollar amount of Interests tendered and prevailing
general economic and market conditions, the Fund, in its sole discretion, may
decide to finance any portion of the purchase price, subject to compliance with
applicable law, through borrowings. If the Fund finances any portion of the
purchase price in that manner, it will deposit assets in a special custody
account with its custodian, PFPC, to serve as collateral for any amounts so
borrowed, and if the Fund were to fail to repay any such amounts, the lender
would be entitled to satisfy the Fund's obligations from the collateral
deposited in the special custody account. The Fund expects that the repayment of
any amounts borrowed will be made from additional funds contributed to the Fund
by existing and/or new Members, withdrawal of capital from the investment funds
in which it has invested or from the proceeds of the sale of securities and
portfolio assets held by the Fund.
7. CERTAIN CONDITIONS OF THE OFFER. The Fund reserves the right, at any
time and from time to time, to extend the period of time during which the Offer
is pending by notifying Members of such extension. In the event that the Fund so
elects to extend the tender period, for the purpose of determining the purchase
price for tendered Interests, the net asset value of such Interests will be
determined as of the close of business on the last business day of the month in
which the Offer expires. During any such extension, all Interests previously
tendered and not withdrawn will remain subject to the Offer. The Fund also
reserves the right, at any time and from time to time, up to and including
acceptance of tenders pursuant to the Offer, to: (a) cancel the Offer in the
circumstances set forth in the following paragraph and in the event of such
cancellation not to purchase or pay for any Interests tendered pursuant to the
Offer; (b) amend the Offer; and (c) postpone the acceptance of Interests for
repurchase. If the Fund determines to amend the Offer or to postpone the
acceptance of Interests tendered, it will, to the extent necessary, extend the
period of time during which the Offer is open as provided above and will
promptly notify Members.
The Fund may cancel the Offer, amend the Offer or postpone the
acceptance of tenders made pursuant to the Offer if: (a) the Fund would not be
able to liquidate portfolio securities in a manner that is orderly and
consistent with the Fund's investment objective and policies in order to
purchase Interests tendered pursuant to the Offer; (b) there is, in the judgment
of the Board of Managers, any (i) legal action or proceeding instituted or
threatened challenging the Offer or otherwise materially adversely affecting the
Fund, (ii) declaration of a banking moratorium by federal or state authorities
or any suspension of payment by banks in the United States or the State of
Connecticut that is material to the Fund, (iii) limitation imposed by federal or
state authorities on the extension of credit by lending institutions, (iv)
suspension of trading on any organized exchange or over-the-counter market where
the Fund has a material investment, (v) commencement of war, significant change
in armed hostilities or other international or national calamity directly or
indirectly involving the United States since the commencement of the Offer that
is material to the Fund, (vi) material decrease in the net asset value of the
Fund from the net asset value of the Fund as of commencement of the Offer, or
(vii) other event or
B-11
condition that would have a material adverse effect on the Fund or its Members
if Interests tendered pursuant to the Offer were purchased; or (c) the Board of
Managers determines that it is not in the best interest of the Fund to purchase
Interests pursuant to the Offer. However, there can be no assurance that the
Fund will exercise its right to extend, amend or cancel the Offer or to postpone
acceptance of tenders pursuant to the Offer.
8. CERTAIN INFORMATION ABOUT THE FUND. The Fund is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as a closed-end,
non-diversified, management investment company. It is organized as a Delaware
limited liability company. The principal office of the Fund is located at 225
High Ridge Road, Stamford, CT 06905 and the telephone number is (203) 352-4497.
Interests are not traded on any established trading market and are subject to
strict restrictions on transferability pursuant to the LLC Agreement.
Neither the Fund nor the Adviser nor the Board of Managers have any
plans or proposals that relate to or would result in: (a) the acquisition by any
person of additional Interests (other than the Fund's intention to accept
subscriptions for Interests on the first day of each calendar quarter and from
time to time in the discretion of the Fund) or the disposition of Interests; (b)
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Fund; (c) any material change in the present
distribution policy or indebtedness or capitalization of the Fund; (d) any
change in the identity of the investment adviser of the Fund, or in the
management of the Fund including, but not limited to, any plans or proposals to
change the number or the term of the members of the Board of Managers, to fill
any existing vacancy on the Board of Managers or to change any material term of
the investment advisory arrangement with the Adviser; (e) a sale or transfer of
a material amount of assets of the Fund (other than as the Board of Managers
determines may be necessary or appropriate to finance any portion of the
purchase price for Interests acquired pursuant to this Offer or in connection
with ordinary portfolio transactions of the Fund); (f) any other material change
in the Fund's structure or business, including any plans or proposals to make
any changes in its fundamental investment policies, as amended, for which a vote
would be required by Section 13 of the 1940 Act; or (g) any changes in the LLC
Agreement or other actions that may impede the acquisition of control of the
Fund by any person.
Other than the acceptance of subscriptions for Interests on April 1,
2005, there have been no transactions involving the Interests that were effected
during the past 60 business days by the Fund, the Adviser, any Manager, or any
person controlling the Fund or the Adviser.
Based on March 31, 2005 estimated values, the following persons that
may be deemed to control the Fund, may control a person that controls the Fund
and/or may be controlled by a person controlling the Fund, held Interests:
(i) Douglas A. Lindgren, the principal manager of the Fund, a
Managing Director of U.S. Trust Company, N.A. (U.S. Trust Company, N.A.,
together with its affiliated banks, "U.S. Trust") and head of its alternative
investments division and the Chairman of the Adviser, owns $105,417.95 (less
than 1%) of the outstanding Interests;
B-12
(ii) Lee Gardella, a Senior Vice President of U.S. Trust, owns
through the Lee Gardella, IRA $27,352.30 (less than 1%) of the outstanding
Interests;
(iii) James L. Bailey, an Executive Vice President of U.S.
Trust, owns $215,118.18 (less than 1%) of the outstanding Interests;
(iv) Kristina H. McDonough, a Managing Director of U.S. Trust,
owns $109,409.20 (less than 1%) of the outstanding Interests;
(v) Alicia B. Lindgren, the wife of principal manager Douglas
A. Lindgren, owns $209,680.54 (less than 1%) of the outstanding Interests; and
(vi) Alicia B. Lindgren, the wife of principal manager Douglas
A. Lindgren, owns through the Alicia Lindgren IRA $135,743.99 (less than 1%) of
the outstanding Interests.
None of the foregoing persons have decided to tender any of their
Interests at this time.
9. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The following discussion is
a general summary of the federal income tax consequences of the purchase of
Interests by the Fund from Members pursuant to the Offer. Members should consult
their own tax advisors for a complete description of the tax consequences to
them of a purchase of their Interests by the Fund pursuant to the Offer.
In general, a Member from which an Interest is purchased by the Fund
will be treated as receiving a distribution from the Fund and will generally
reduce (but not below zero) its adjusted tax basis in its Interest by the amount
of cash and the fair market value of property distributed to such Member. Such
Member generally will not recognize income or gain as a result of the purchase,
except to the extent (if any) that the amount of consideration received by the
Member exceeds such Member's then adjusted tax basis in such Member's Interest.
A Member's basis in such Member's Interest will be reduced (but not below zero)
by the amount of consideration received by the Member from the Fund in
connection with the purchase of such Interest. A Member's basis in such Member's
Interest will be adjusted for income, gain or loss allocated (for tax purposes)
to such Member for periods prior to the purchase of such Interest. Cash
distributed to a Member in excess of the adjusted tax basis of such Member's
Interest is taxable as capital gain or ordinary income, depending on the
circumstances. A Member that has its entire Interest purchased by the Fund for
cash may generally recognize a loss, but only to the extent that the amount of
consideration received from the Fund is less than the Member's then adjusted tax
basis in such Member's Interest.
10. MISCELLANEOUS. The Offer is not being made to, nor will tenders be
accepted from, Members in any jurisdiction in which the Offer or its acceptance
would not comply with the securities or Blue Sky laws of such jurisdiction. The
Fund is not aware of any jurisdiction in which the Offer or tenders pursuant
thereto would not be in compliance with the laws of such jurisdiction. However,
the Fund reserves the right to exclude Members from the Offer in any
jurisdiction in which it is asserted that the Offer cannot lawfully be made. The
Fund
B-13
believes such exclusion is permissible under applicable laws and regulations,
provided the Fund makes a good faith effort to comply with any state law deemed
applicable to the Offer.
The Fund has filed an Issuer Tender Offer Statement on Schedule TO with
the Securities and Exchange Commission, which includes certain information
relating to the Offer summarized herein. A free copy of such statement may be
obtained from the Fund by contacting the Adviser at the address and telephone
number set forth on page 2 or from the Securities and Exchange Commission's
internet web site, http://www.sec.gov. For a fee, a copy may be obtained from
the public reference office of the Securities and Exchange Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549.
11. FINANCIAL INFORMATION. Reference is made to the following financial
statements of the Fund which are incorporated herein by reference.
Audited financial statements for the period from December 1, 2003
(commencement of operations) to March 31, 2004, previously filed on
EDGAR on Form N-CSR on June 8, 2004;* and
Unaudited financial statements for the period from April 1, 2004 to
September 30, 2004, previously filed on EDGAR on Form N-CSR on December
9, 2004.
- ----------------------
* The Fund's Board of Managers and Audit Committee have terminated Ernst & Young
LLP ("Ernst & Young") as the Fund's independent public accountants as a result
of concerns regarding their independence at the time of the issuance of their
report on the Fund's March 31, 2004 financial statements. These concerns are the
result of certain real estate consulting services performed by Ernst & Young on
a contingent fee basis for Charles Schwab & Co., Inc., an affiliate of the
Fund's Adviser. During the period Ernst & Young served as independent
accountants of the Fund, there was no disagreement between Ernst & Young and the
Fund on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedures, which disagreement, if not resolved
to the satisfaction of Ernst & Young, would have caused it to make reference to
the subject matter of the disagreement in its report. The Fund has no reason to
believe that the Fund's March 31, 2004 financial statements were not prepared in
accordance with generally accepted accounting principles, or that such financial
statements do not fairly represent, in all material respects, the financial
condition of the Fund as of their dates. The Board and the Audit Committee have
engaged the independent accounting firm of Deloitte & Touche LLP to perform a
re-audit of the Fund's March 31, 2004 financial statements ("Re-audit") and to
perform the audit for the fiscal year ended March 31, 2005. The results of the
Re-audit have been reported to the Fund and its shareholders. Deloitte & Touche
LLP reported no material differences in the Re-audit.
B-14
EXHIBIT C
LETTER OF TRANSMITTAL
Regarding
Interests
in
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
Tendered Pursuant to the Offer
Dated April 14, 2005
|------------------------------------------------------------------|
| THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE |
| AT, AND THIS LETTER OF TRANSMITTAL MUST BE |
| RECEIVED BY THE FUND BY, 12:00 MIDNIGHT, EASTERN TIME, |
| ON WEDNESDAY, MAY 11, 2005, UNLESS THE OFFER IS |
| EXTENDED. |
|------------------------------------------------------------------|
COMPLETE THIS LETTER OF TRANSMITTAL AND RETURN BY MAIL OR FAX TO:
U.S. Trust Hedge Fund Management, Inc.
225 High Ridge Road
Stamford, CT 06905
Attn: Kathleen Flores
For additional information:
Phone: (203) 352-4497
Fax: (203) 352-4456
C-1
Ladies and Gentlemen:
The undersigned hereby tenders to Excelsior Absolute Return Fund of
Funds, LLC, a closed-end, non-diversified, management investment company
organized under the laws of the State of Delaware (the "Fund"), the limited
liability company interest in the Fund (hereinafter the "Interest" or
"Interests" as the context requires) or portion thereof held by the undersigned,
described and specified below, on the terms and conditions set forth in the
offer to purchase, dated April 14, 2005, receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which together constitute the
"Offer"). THE TENDER AND THIS LETTER OF TRANSMITTAL ARE SUBJECT TO ALL THE TERMS
AND CONDITIONS SET FORTH IN THE OFFER, INCLUDING, BUT NOT LIMITED TO, THE
ABSOLUTE RIGHT OF THE FUND TO REJECT ANY AND ALL TENDERS DETERMINED BY FUND, IN
ITS SOLE DISCRETION, NOT TO BE IN THE APPROPRIATE FORM.
The undersigned hereby sells to the Fund the Interest or portion
thereof tendered hereby pursuant to the Offer. The undersigned hereby warrants
that the undersigned has full authority to sell the Interest or portion thereof
tendered hereby and that the Fund will acquire good title thereto, free and
clear of all liens, charges, encumbrances, conditional sales agreements or other
obligations relating to the sale thereof, and not subject to any adverse claim,
when and to the extent the same are purchased by it. Upon request, the
undersigned will execute and deliver any additional documents necessary to
complete the sale in accordance with the terms of the Offer.
The undersigned recognizes that under certain circumstances set forth
in the Offer, the Fund may not be required to purchase any of the Interests in
the Fund or portions thereof tendered hereby.
A promissory note for the purchase price will be deposited into a
special custody account with PFPC Trust Company (PFPC Trust Company, together
with its affiliated banks, "PFPC"). The initial payment of the purchase price
for the Interest or portion thereof tendered by the undersigned will be made by
transfer of the funds to the undersigned's account at PFPC, or mailed to the
address of record for the undersigned if the undersigned does not have a PFPC
account, as described in Section 6 of the Offer. The undersigned hereby
represents and warrants that the undersigned understands that upon a withdrawal
of such cash payment from a PFPC account, PFPC may subject such withdrawal to
any fees that PFPC would customarily assess upon the withdrawal of cash from
such account.
The promissory note will also reflect the contingent payment (the
"Contingent Payment") portion of the purchase price, if any, as described in
Section 6 of the Offer. Any Contingent Payment of cash due pursuant to the Note
will also be deposited directly to the undersigned's account with PFPC, or will
be mailed to the undersigned if the undersigned does not have a PFPC account.
Upon a withdrawal of such cash from such account, PFPC may impose such fees as
it would customarily assess upon the withdrawal of cash from such account. The
undersigned recognizes that the amount of the purchase price for Interests will
be based on the unaudited net asset value of the Fund, determined as of June 30,
2005, subject to an extension of the Offer as described in Section 7. The
Contingent Payment portion of the purchase price, if any, will be determined
upon completion of the audit of the Fund's financial statements which is
anticipated to be completed not later than 60 days after March 31, 2006, the
Fund's fiscal year end, and will be paid within ten calendar days thereafter.
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned and the obligation of the undersigned
hereunder shall be binding on the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in Section 5 of the Offer, this
tender is irrevocable.
C-2
PLEASE FAX OR MAIL IN THE ENCLOSED POSTAGE PAID ENVELOPE TO:
U.S. TRUST HEDGE FUND MANAGEMENT, INC., 225 HIGH RIDGE RD., STAMFORD, CT 06905
ATTN: KATHLEEN FLORES. FOR ADDITIONAL INFORMATION: PHONE: (203) 352-4497 FAX:
(203) 342-4456
PART 1. NAME AND ADDRESS:
Name of Member:
-----------------------------------------------
Social Security No.
or Taxpayer
Identification No.:
---------------------------------
Telephone Number: ( )
---------------------------------
PART 2. AMOUNT OF LIMITED LIABILITY COMPANY INTEREST IN THE FUND BEING
TENDERED:
[ ] Entire limited liability company interest.
[ ] Portion of limited liability company interest expressed as a specific
dollar value (A minimum tender of $25,000 is required). (A minimum
interest with a value of $100,000, or more must be maintained in the
Fund (the "Required Minimum Balance").)*
$__________________
[ ] Portion of limited liability company interest in excess of the Required
Minimum Balance. (A minimum of $25,000 must be tendered if this option
is chosen).
*The undersigned understands and agrees that if the undersigned tenders
an amount that would cause the undersigned's capital account balance to
fall below the Required Minimum Balance, the Fund may reduce the amount
to be purchased from the undersigned so that the Required Minimum
Balance is maintained.
PART 3. PAYMENT.
CASH PAYMENT
Cash payments will be deposited to the undersigned's account at PFPC,
or mailed to the address of record for the undersigned. The undersigned
hereby represents and warrants that the undersigned understands that,
for cash payments deposited to the undersigned's account, upon a
withdrawal of such cash payment from such account, PFPC may impose such
fees as it would customarily assess upon the withdrawal of cash from
such account.
PROMISSORY NOTE
The promissory note reflecting both the initial and contingent payment
portion of the purchase price, if applicable, will be deposited into a
special custody account with PFPC for the benefit of the undersigned.
The undersigned hereby represents and warrants that the undersigned
understands that any payment of cash due pursuant to the Note will also
be deposited directly to the undersigned's account at PFPC or mailed to
the address of record for the undersigned and upon a withdrawal of such
cash from a PFPC account, PFPC may impose such fees as it would
customarily assess upon the withdrawal of cash from such account.
C-3
PART 4. SIGNATURE(S).
- -----------------------------------------------------------------------------------------
FOR INDIVIDUAL INVESTORS FOR OTHER INVESTORS:
AND JOINT TENANTS:
- ------------------------------------------ ------------------------------------------
Signature Print Name of Investor
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Print Name of Investor Signature
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Joint Tenant Signature if necessary Print Name of Signatory and Title
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Print Name of Joint Tenant Co-signatory if necessary
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
------------------------------------------
Print Name and Title of Co-signatory
- -----------------------------------------------------------------------------------------
Date:
---------------------------
C-4
EXHIBIT D
NOTICE OF WITHDRAWAL OF TENDER
Regarding Interests in
EXCELSIOR ABSOLUTE RETURN FUND OF FUNDS, LLC
Tendered Pursuant to the Offer
Dated April 14, 2005
|------------------------------------------------------------------|
| THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE |
| AT, AND THIS LETTER OF WITHDRAWAL MUST BE |
| RECEIVED BY THE FUND BY, 12:00 MIDNIGHT, EASTERN TIME, |
| ON WEDNESDAY, MAY 11, 2005, UNLESS THE OFFER IS |
| EXTENDED. |
|------------------------------------------------------------------|
COMPLETE THIS NOTICE OF WITHDRAWAL AND RETURN OR DELIVER TO:
U.S. Trust Hedge Fund Management, Inc.
225 High Ridge Road
Stamford, CT 06905
Attn: Kathleen Flores
For additional information:
Phone: (203) 352-4497
Fax: (203) 352-4456
D-1
Ladies and Gentlemen:
The undersigned wishes to withdraw the tender of its limited liability
company interest in Excelsior Absolute Return Fund of Funds, LLC (the "Fund"),
or the tender of a portion of such interests, for purchase by the Fund that
previously was submitted by the undersigned in a Letter of Transmittal dated
_____________________.
Such tender was in the amount of:
[ ] Entire limited liability company interest.
[ ] Portion of limited liability company interest expressed as a specific
dollar value.
$_________________
[ ] Portion of limited liability company interest in excess of the Required
Minimum Balance.
The undersigned recognizes that upon the submission on a timely basis
of this Notice of Withdrawal of Tender, properly executed, the interest in the
Fund (or portion of such interest) previously tendered will not be purchased by
the Fund upon expiration of the tender offer described above.
SIGNATURE(S).
- -----------------------------------------------------------------------------------------
FOR INDIVIDUAL INVESTORS FOR OTHER INVESTORS:
AND JOINT TENANTS:
- ------------------------------------------ ------------------------------------------
Signature Print Name of Investor
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Print Name of Investor Signature
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Joint Tenant Signature if necessary Print Name of Signatory and Title
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
- ------------------------------------------ ------------------------------------------
Print Name of Joint Tenant Co-signatory if necessary
(SIGNATURE OF OWNER(S) EXACTLY AS APPEARED
ON SUBSCRIPTION AGREEMENT)
------------------------------------------
Print Name and Title of Co-signatory
- -----------------------------------------------------------------------------------------
Date:
---------------------------
D-2
EXHIBIT E
Forms of letters from the Fund
to Members in connection with acceptance of offers of tender
THIS LETTER IS BEING SENT TO YOU IF YOU TENDERED YOUR ENTIRE INTEREST IN THE
FUND.
May 24, 2005
Dear Member:
Excelsior Absolute Return Fund of Funds, LLC (the "Fund") has received
and accepted for purchase your tender of your limited liability company interest
in the Fund ("Interest" or "Interests" as the context requires).
Because you have tendered and the Fund has purchased your entire
investment, you have been paid a note (the "Note") entitling you to receive an
initial payment of 95% of the purchase price based on the unaudited net asset
value of the Fund, determined as of June 30, 2005, in accordance with the terms
of the tender offer. A cash payment in this amount will be deposited into your
account with PFPC Trust Company or one of its affiliated banks ("PFPC") on July
30, 2005 or a check will be mailed to you on that date if you do not have a PFPC
account, unless the valuation date of the Interests has changed or the Fund has
requested a withdrawal of its capital from the investment funds in which it has
invested and has not yet received the proceeds of that withdrawal, in accordance
with the terms of the tender offer.
The terms of the Note provide that a contingent payment representing
the balance of the purchase price, if any, will be paid to you after the
completion of the Fund's fiscal year-end audit and is subject to fiscal year-end
audit adjustment. This amount, will be paid within ten calendar days after the
conclusion of the fiscal year-end audit, or on such earlier date as the Fund's
Board of Managers may determine, according to the terms of the tender offer and
will also be deposited into your PFPC account or will be mailed to you if you do
not have a PFPC account. We expect the audit to be completed by the end of May
2006.
Should you have any questions, please feel free to contact the Fund's
adviser, U.S. Trust Hedge Fund Management, Inc. at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
Enclosure
E-1
THIS LETTER IS BEING SENT TO YOU IF YOU TENDERED A PORTION OF YOUR INTEREST IN
THE FUND.
May 24, 2005
Dear Member:
Excelsior Absolute Return Fund of Funds, LLC (the "Fund") has received
and accepted for purchase your tender of a portion of your limited liability
company interest in the Fund ("Interest" or "Interests" as the context
requires).
Because you have tendered and the Fund has purchased a portion of your
investment, you have been paid a note (the "Note") entitling you to receive an
initial payment of 100% of the purchase price based on the unaudited net asset
value of the Fund, determined as of June 30, 2005, in accordance with the terms
of the tender offer. A cash payment in this amount will be deposited into your
account with PFPC Trust Company or one of its affiliated banks ("PFPC") on July
30, 2005 or a check will be mailed to you on that date if you do not have a PFPC
account, unless the valuation date of the Interests has changed or the Fund has
requested a withdrawal of its capital from the investment funds in which it has
invested and has not yet received the proceeds of that withdrawal, in accordance
with the terms of the tender offer.
You remain a member of the Fund with respect to the portion of your
Interest in the Fund that you did not tender.
Should you have any questions, please feel free to contact the Fund's
adviser, U.S. Trust Hedge Fund Management, Inc. at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
Enclosure
E-2
THIS LETTER IS BEING SENT TO YOU WITH THE INITIAL PAYMENT FOR ALL OF YOUR
INTEREST WHICH WAS REPURCHASED BY THE FUND.
July 30, 2005
Dear Member:
Enclosed is a statement showing the breakdown of your capital
withdrawal resulting from our purchase of your interest in Excelsior Absolute
Return Fund of Funds, LLC (the "Fund").
Because you have tendered and the Fund has purchased your entire
investment, you have previously been paid a note entitling you to receive 95% of
the purchase price based on the unaudited net asset value of the Fund,
determined as of June 30, 2005, in accordance with the terms of the tender
offer. A cash payment in this amount is being deposited into your account with
PFPC Trust Company or one of its affiliated banks ("PFPC") on July 30, 2005, if
you have a PFPC account. If you do not have a PFPC account, a check is enclosed
with this letter.
The balance of the purchase price, if any, will be paid to you after
the completion of the Fund's fiscal year-end audit for the year ending March 31,
2006 and is subject to year-end audit adjustment. This amount will be paid
within ten days after the conclusion of the year-end audit, or on such earlier
date as the Fund's Board of Managers may determine, according to the terms of
the tender offer. We expect the audit to be completed by the end of May 2006.
Should you have any questions, please feel free to contact the Fund's
adviser, U.S. Trust Hedge Fund Management, Inc. at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
Enclosure
E-3
THIS LETTER IS BEING SENT TO YOU WITH THE INITIAL PAYMENT FOR THE PORTION OF
YOUR INTEREST WHICH WAS REPURCHASED BY THE FUND.
July 30, 2005
Dear Member:
Enclosed is a statement showing the breakdown of your capital
withdrawal resulting from our purchase of your interest in Excelsior Absolute
Return Fund of Funds, LLC (the "Fund").
Because you have tendered and the Fund has purchased a portion of your
investment, you have been paid 100% of the purchase price based on the estimated
unaudited net asset value of the Fund, determined as of June 30, 2005, in
accordance with the terms of the tender offer. A cash payment in this amount is
being deposited into your account with PFPC Trust Company or one of its
affiliated banks ("PFPC") on July 30, 2005, if you have a PFPC account. If you
do not have a PFPC account, a check is enclosed with this letter.
Should you have any questions, please feel free to contact the Fund's
adviser, U.S. Trust Hedge Fund Management, Inc. at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
Enclosure
E-4
THIS LETTER IS BEING SENT TO YOU WITH THE CONTINGENT PAYMENT FOR THE INTEREST
REPURCHASED BY THE FUND.
June 6, 2006
Dear Member:
Enclosed is a statement showing the breakdown of your capital
withdrawal resulting from our purchase of your interest in Excelsior Absolute
Return Fund of Funds, LLC (the "Fund").
Pursuant to the terms of the tender offer, the contingent payment is
being deposited into your account with PFPC Trust Company or one of its
affiliated banks ("PFPC") on June 9, 2006 if you have a PFPC account. If you do
not have a PFPC account, a check is enclosed with this letter.
Should you have any questions, please feel free to contact the Fund's
adviser, U.S. Trust Hedge Fund Management, Inc. at (203) 352-4497.
Sincerely,
Excelsior Absolute Return Fund of Funds, LLC
Enclosure
E-5