EXHIBIT 3.2
LLC OPERATING AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT
OF
RIDGEWOOD ENERGY U FUND, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made and
entered as of October 1, 2006 by and among Ridgewood Energy Corporation, a
Delaware corporation ("Manager"), and the Investors as defined below.
WHEREAS, the Manager has formed and the Investors have agreed to become
members of RIDGEWOOD ENERGY U FUND, LLC, a Delaware limited liability company
(the "Fund") and the Manager has caused a certificate of formation to be
executed and filed with the Delaware Secretary of State pursuant to Section
18-201 of the Delaware Limited Liability Company Act ("Delaware Act").
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions contained herein, the parties agree as follows:
ARTICLE 1: ORGANIZATION AND POWERS
1.1 Name. The name of the Fund is "RIDGEWOOD ENERGY U FUND, LLC". The
Manager may conduct the business of the Fund or hold its property under other
names as necessary to comply with law or to further the affairs of the Fund, as
it deems advisable in its sole discretion. This Agreement, the Certificate and
any other documents, and any amendments of any of the foregoing, required by law
or appropriate, shall be recorded in all offices or jurisdictions where the Fund
shall determine such recording to be necessary or advisable for the conduct of
the business of the Fund.
1.2 Purpose. (a) The Fund's purpose is to acquire, drill, construct and
develop natural gas and oil prospects, including infrastructure projects, in
shallow and deep offshore waters in the Gulf of Mexico ("Projects"). In addition
to these acquisition and development activities, the Fund may participate in
pre-development and other preparatory activities for the Projects, including
without limitation, evaluation, investigation, due diligence activities,
permitting, and other development activities. The Fund may affect any of these
transactions on its own, together with Affiliates, or together with
non-Affiliates, and may do so with the encouragement or consent of management
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or controlling equity holders of the entity it invests in or without such
consent.
(b) In carrying out its purposes, the Fund has the power to perform
any act that is necessary, advisable, customary or incidental thereto. It may
invest in a passive or active manner in, develop, plan, construct, manage,
operate, advise, transfer or dispose of, any facility or interest and produce or
market products or services. The Fund may act independently, through subsidiary
organizations, in cooperation with others or through business entities in which
others have interests whether as principal, agent, partner, owner, member,
associate, joint venturer or otherwise. When related to its purposes, the Fund
may also guarantee obligations of other persons, supply collateral for those
obligations or for the issuance of letters of credit or surety bonds benefiting
other persons, enter into leases as lessor or lessee or acquire goods or
services for the use or benefit of other persons.
(c) Without the prior affirmative vote or written consent of Investors
whose aggregate Capital Contributions constitute more than 50% of all Capital
Contributions to the Fund at such time, the Fund will not take any action that
would cause it to be required to register as an "investment company" subject to
the requirements of the Investment Company Act of 1940 and will not hold itself
out as an "investment company."
(d) The Fund may make interim investments of funds and may take all
action necessary, advisable or appropriate to maintain its existence, enforce
this Agreement and its rights or the rights of the Shareholders and comply with
legal requirements.
1.3 Relationships among Shareholders; No Partnership. As among the Fund,
the Shareholders and the officers and agents of the Fund, a limited liability
company and not a partnership is created by this Agreement and the Certificate
irrespective of whether any different status may be held to exist for tax
purposes. The Shareholders hold only the relationship of members of the Fund
with only such rights as are conferred on them by this Agreement and the
Delaware Act.
1.4 Organization Certificates. The parties hereto have or shall cause to be
executed and filed (a) the Certificate, (b) such certificates as may be required
by so-called "assumed name" laws in each jurisdiction in which the Fund has a
place of business, (c) all such other certificates, notices, statements or other
instruments required by law or appropriate for the formation and operation of a
Delaware limited liability company in all jurisdictions where the Fund may elect
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to do business, and (d) any amendments of any of the foregoing required by law
or otherwise appropriate.
1.5 Principal Place of Business. The principal place of business of the
Fund shall be 1314 King Street, Wilmington, Delaware 19801, or such other place
as the Fund may designate from time to time by notice. The Fund may maintain
such other offices at such other places as the Fund may determine to be in the
best interests of the Fund.
1.6 Admission of Investors. (a) The Fund shall have the unrestricted right
at all times prior to the Class U-1 Termination Date to admit to the Fund such
Class U-1 Investors as it may deem advisable. One Class U-1 Investor Share will
be issued for each accepted subscription for $150,000 of Capital Contributions
(before discounts or incentives) and fractional Shares may be issued in the
Manager's sole discretion for proportional amounts of Capital Contributions.
After the Class U-1 Termination Date, Sections 1.6 (f) and 9.8 shall govern the
sale of Class U-1 Investor Shares (if any) and different Classes or Series of
Investor Shares by the Fund.
(b) The aggregate subscriptions received for Capital Contributions of
the Investors and accepted by the Fund will not exceed 1,000 Class U-1 Investor
Shares ($150,000,000), immediately following the admission of such Investors.
However, at any time prior to the Class U-1 Termination Date, the Manager in its
sole discretion may increase the number of Class U-1 Investor Shares to 1,600
Class U-1 Investor Shares or more.
(c) (i) If, by the close of business on July 31, 2007, Class U-1
Investor Shares representing Investor Capital Contributions in the aggregate
amount of at least $1,500,000 have not been sold, the Fund shall be immediately
dissolved at the expense of the Manager and all subscription funds shall be
forthwith returned to the respective subscribers together with any interest
earned thereon.
(ii) If the Fund withdraws the Offering after the Fund has
received Class U-1 Investor Shares representing Investor Capital Contributions
in the aggregate amount of at least $1,500,000, but before the Class U-1
Termination date, the fund shall be immediately dissolved at the expense of the
Manager and all subscription funds, net of third party fees, shall be returned
to the respective subscribers together with any interest earned thereon. For
purposes of this Section 1.6(c) (ii), third party fees do not include any fees
paid to the Manager or its affiliates.
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(iii) All funds received from such subscriptions until used by
the Fund will be deposited in the Fund's name in an account at a commercial
bank.
(d) Each Class U-1 Investor shall execute a Subscription Agreement and
will make a Capital Contribution to the Fund equal to $150,000 per Class U-1
Investor Share. The Fund may accept or reject any subscription in whole or in
part in its sole discretion and for any reason at any time prior to the Class
U-1 Termination Date. Each Class U-1 Investor who executes a Subscription
Agreement which is accepted by the Fund shall be admitted to the Fund as a
Shareholder.
(e) The Capital Contribution for Class U-1 Investor Shares must be
paid to the Fund at the time of subscription.
(f) Class U-1 Investors shall have the following special rights and
privileges, which shall not be available with respect to any other Class or
Series of Investor Shares unless otherwise authorized by the holders of more
than 50% of the then outstanding Class U-1 Investor Shares:
(i) Any Available Cash from Operations and Available Cash from
Capital Transactions attributable to the South Timbalier 135 Project shall be
distributed to the Class U-1 Investors as provided in Section 8.8.
(ii) The right to receive the Additional Class U-1 Investor Share
Walker Ridge Distribution.
(iii) Qualified Class U-1 Investors shall have the Right of First
Refusal with respect to any Supplemental Offerings, as provided in Section 1.9.
(iv) The Fund shall not issue any Class or Series of Investor
Shares that materially adversely affect the rights provided to holders of Class
U-1 Investor Shares under this Section 1.6 (f) nor increase the number of
outstanding Class U-1 Investor Shares above the amount set forth in Section
1.6(b).
1.7 Term of the Fund. For all purposes, this Agreement shall be effective
on and after its date and the Fund shall continue in existence until December
31, 2047 at which time the Fund shall terminate unless sooner terminated under
any other provision of this Agreement.
1.8 Powers of the Fund. Without limiting any powers granted to the Fund
under this Agreement or applicable law, in carrying out its purposes the Fund
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has all powers granted to a limited liability company organized under the
Delaware Act, including, without limitation:
(a) To borrow money or to loan money and to pledge or mortgage any and
all Fund Property, to execute and provide guarantees, to execute conveyances,
mortgages, security agreements, assignments and any other contract or agreement
deemed proper and in furtherance of the Fund's purposes and affecting it or any
Fund Property; provided, however, that the Fund shall not loan money to the
Manager, or any other Managing Person;
(b) To pay all indebtedness, taxes and assessments due or to be due
with regard to Fund Property and to give or receive notices, reports or other
communications arising out of or in connection with the Fund's business or Fund
Property;
(c) To collect all monies due the Fund;
(d) To establish, maintain and supervise the deposit of funds or Fund
Property into, and the withdrawals of the same from, Fund bank accounts or
securities accounts;
(e) To employ accountants to prepare required tax returns and provide
other professional services and to pay their fees at the Fund's expense;
(f) To make any election relating to adjustments in basis on behalf of
the Fund or the Shareholders which is or may be permitted under the Code,
particularly with respect to Sections 743, 754 and 771 of the Code;
(g) To employ legal counsel for Fund purposes or for the Manager, or
permit the Manager itself to employ legal counsel, for Fund and other purposes
permitted hereunder and to pay their fees and expenses at the Fund's expense;
and
(h) To invest in any asset consistent with the objectives of the Fund
as described in the Memorandum.
1.9 Right of First Refusal. The Fund shall not sell or issue any Shares
pursuant to Section 9.8 or elsewhere in this Agreement except Shares of Class
U-1 Investor Shares (the "Offered Securities") to any Person unless the Fund
first: (i) submits written notice (the "Preemptive Rights Notice") to all
Qualified Class U-1 Investors identifying (if known) the Person(s) to which such
Offered Securities are to be sold or issued and describing the terms of the
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proposed sale (including price, number or aggregate principal amount of the
Offered Securities and all other material terms); and (ii) offers to each
Qualified Class U-1 Investor the opportunity to purchase its Pro Rata Allotment
(as hereinafter defined) of the Offered Securities on terms and conditions not
materially less favorable than those on which the Fund proposes to sell such
Offered Securities to a third party. The Fund's offer to the Qualified Class U-1
Investors shall remain open and irrevocable for a period of thirty (30) days (or
such longer period as the Manager shall determine), during which time each
Qualified Class U-1 Investor may accept such offer by written notice to the
Fund. The written notice shall set forth the maximum number of Offered
Securities which such Qualified Class U-1 Investor elects to purchase, but not
in excess of the Qualified Class U-1 Investor's Pro Rata Allotment. Any Offered
Securities which are not purchased by the Qualified Class U-1 Investors pursuant
hereto may be sold by the Fund, but only on terms and conditions not materially
less favorable to the Fund than as set forth in the Preemptive Rights Notice, at
any time within 240 days following the termination of the above-referenced
30-day (or longer) period.
For purposes of this Section 1.9, each Qualified Class U-1 Investor's "Pro
Rata Allotment" of the Offered Securities shall be the percentage which the
Class U-1 Investor Shares held by it bears to all of the Class U-1 Investor
Shares held by Qualified Class U-1 Investors outstanding on the date of the
Preemptive Rights Notice. The number of Class U-1 Investor Shares deemed held by
a Qualified Class U-1 Investor shall be the total number of outstanding Class
U-1 Investor Shares owned by such Qualified Class U-1 Investor, plus the total
number of Class U-1 Investor Shares issuable to such Qualified Class U-1
Investor upon the exercise of and/or the conversion of any other securities
owned by such Qualified Class U-1 Investor.
ARTICLE 2: DEFINITIONS
The following terms, whenever used herein, shall have the meanings assigned
to them in this Article 2 unless the context clearly indicates otherwise.
References to sections and articles without further qualification denote
sections and articles of this Agreement. The singular shall include the plural
and the masculine gender shall include the feminine, and vice versa, as the
context requires, and the terms "person" and "he" and their derivations whenever
used herein shall include natural persons and entities, including, without
limitation, corporations, partnerships, limited liability companies and trusts,
unless the context indicates otherwise.
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"Act" --- The federal Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder as from time to time in effect.
"Adjusted Capital Account Deficit" --- with respect to any
Shareholder, the deficit balance, if any, in such Shareholder's Capital Account
as of the end of the relevant Fiscal Year, with the following adjustments:
A credit to such Capital Account of any amounts which such Shareholder is
obligated to restore pursuant to any provision of this Agreement or is deemed
obligated to restore pursuant to the penultimate sentences of Regulations
Section 1.704-2(g)(1) and 1.704-2(i)(5); and
A debit from such Capital Account for the items described in Sections 1.704 1
(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of "Adjusted Capital Account Deficit" is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
"Additional Class U-1 Investor Share Walker Ridge Distribution" ---
The Additional Class U-1 Investor Share Walker Ridge Distribution with respect
to Class U-1 Investor Shares provided for in Section 8.9.
"Affiliate" --- An "Affiliate" of, or person "Affiliated" with, a
specified person is a person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
person specified.
"Agreement" --- This Limited Liability Company Agreement, as further
amended from time to time.
"Available Cash from Capital Transactions" --- The amount by which (a)
the sum of (i) the total cash proceeds received by the Fund in connection with
Capital Transactions (other than Available Cash From Temporary Investments),
plus (ii) the proceeds of any insurance payments or financing transactions that
are not otherwise used to construct, replace or repair Fund Property, exceed (b)
the amount that the Manager determines is necessary to be retained by the Fund
(i) to satisfy any debt or other obligation of the Fund that is secured by,
attributable to or otherwise connected with the Fund Property disposed of
(including Shareholder loans, if any) and (ii) to establish reasonable reserves
for actual or contingent obligations of the Fund.
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"Available Cash from Operations" --- The total cash received by the
Fund from operation of the business in the ordinary course (but excluding any
Available Cash from Capital Transactions, Available Cash from Temporary
Investments, and--any Investor Capital Contributions), less (i) all operating
expenses and other cash expenditures, and (ii) such reserves for operating
expenses, debt service and other actual or contingent obligations and
liabilities of the Fund as the Manager may determine are necessary or advisable.
"Available Cash from Temporary Investments" --- The total cash
received by the Fund from Temporary Investments.
"Capital Account" --- The amount representing a Shareholder's capital
interest in the Fund, as determined under Article 6 hereof.
"Capital Contributions" --- The aggregate capital contributions of the
Investors accepted by the Fund in payment of the purchase price of one or more
whole or fractional Investor Shares, minus any return of capital by the Fund
pursuant to Section 5.3.
"Capital Transactions" means a transaction involving, related to or in
connection with the acquisition, transfer, injury, distribution, condemnation,
or other disposition of Fund property or interest therein (other than Temporary
Investments) that is made other than in the ordinary course of the Fund's
business, specifically including but not limited to, transactions involving,
related to or in connection with the drilling and development of Projects (i.e.,
natural gas or oil wells).
"Certificate" --- The Certificate of Formation of the Fund, as amended
from time to time.
"Class" or "Classes" --- As used herein shall have the meaning 9.8
(a).
"Class U-1 Investor Share" --- A Class U-1 Investor Share in the Fund
representing a required Capital Contribution (before any discounts or waivers of
fees) of $150,000.
"Class U-1 Investors" --- The holders of Class U-1 Investor Shares.
"Class U-1 Termination Date" --- The date on which the initial
offering of Class U-1 Investor Shares is ended, as set or extended from time to
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time by the Fund in its sole discretion, provided that the Class U-1 Termination
Date may not occur before the Escrow Date, and that if the Offering is
withdrawn, the Class U-1 Termination Date is the date the Fund elects to do so.
In no event shall the Class U-1 Termination Date extend beyond ninety (90) days
beyond July 31, 2007.
"Code" --- The United States Internal Revenue Code of 1986, as amended
from time to time, or any corresponding provision or provisions of any
succeeding law and, to the extent applicable, any rules and regulations
promulgated thereunder.
"Delaware Act" --- The Delaware Limited Liability Company Act, as
amended from time to time (currently codified as Title 6, Chapter 18 of the
Delaware Code).
"Dry-Hole Costs" --- The cost of drilling a well.
"Election Period" --- shall have the meaning set forth in Section 1.9.
"Escrow Date" --- The later of the dates on which the Fund (i) accepts
Investor subscriptions of at least $1,500,000 in the aggregate, and (ii) has in
deposit at least $1,500,000 in collected funds in escrow under Section 1.6(c),
provided, however, the Escrow Date shall not be later than July 31, 2007.
"Fiscal Year" --- The calendar year ending December 31st.
"Fund"---Ridgewood Energy U Fund, LLC, a Delaware limited Liability
Company.
"Fund Property" --- All property owned or acquired by the Fund.
"Investor" --- A purchaser of whole or fractional Investor Shares
(which will include the Manager to the extent it acquires Investor Shares for
its own account) whose subscription is accepted by the Fund.
"Investor Share" --- A share of any Class or Series of shares of the
Fund representing the requisite Capital Contribution for such Class or Series of
shares by an Investor.
"Management Share" --- The equity interest in the Net Profits and Net
Losses of the Fund and in distributions granted to Ridgewood as compensation for
organizing and sponsoring the Fund and acting as its Manager.
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"Manager" --- Ridgewood Energy Corporation and any successor,
substitute or different Manager under this Agreement.
"Managing Person" --- Any of the following: (a) Fund officers, agents,
consultants or Affiliates, the Manager and (b) any directors, trustees,
officers, agents or Affiliates of any organizations named in (a), above, when
acting on behalf of the Fund.
"Memorandum" --- The Confidential Offering Memorandum dated as of
October 1, 2006 of the Fund, as the same may be amended or supplemented from
time to time.
"Net Profits" or "Net Losses" --- For a given fiscal period, an amount
equal to the taxable income or loss for such period, determined in accordance
with Code Section 703(a) (for this purpose, all items of income, gain, expense,
loss, deduction or credit required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(a) Any income that is exempt from federal income tax and not
otherwise taken into account in computing Net Profits or Net Losses pursuant to
this definition and any income and gain described in Regulation Section
1.704-1(b)(2)(iv)(g) shall be added to such taxable income or loss;
(b) Any expenditures described in Code Section 705(a)(2)(B) or treated
as Code Section 705(a)(2)(B) expenditures pursuant to Regulation Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net
Profits or Net Losses pursuant to this definition shall be subtracted from such
taxable income or loss;
(c) In the event of a distribution in kind under Section 8.4, the
amount of any unrealized gain or loss deemed to have been realized on the
property distributed shall be added or subtracted from such taxable income or
loss; and
(d) Notwithstanding any other provision of this definition, any items
that are specially allocated pursuant to Sections 4.2 and 7.4 shall not be taken
into account in computing Net Profits or Net Losses.
"Net Profits from Capital Transactions" or "Net Losses from Capital
Transactions" --- means for any given fiscal period, an amount equal to the Net
Profits or Net Losses, as the case may be, resulting from Capital Transactions
"Net Profits from Operations" or "Net Losses from Operations" --- For
a given fiscal period, an amount equal to the Net Profits or Net Losses,
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as the case may be, from operation of the business in the ordinary course (but
excluding-Net Profits from Capital Transactions, Net Losses from Capital
Transactions, and Net Profits from Temporary Investments).
"Net Profits from Temporary Investments" --- For a given fiscal
period, an amount equal to the Net Profits attributable to Temporary
Investments.
"Non-recourse Deductions" --- Shall have the meaning set forth in
Regulations Section 1.704-2(b)(1) and 1.704-2(c).
"Non-recourse Liability" --- Shall have the meaning set forth in
Regulations Section 1.752-1(a)(2).
"Offered Securities" --- Shall have the meaning set forth in Section
1.9.
"Partnership Minimum Gain" --- Shall have the meaning set forth in
Regulations Section 1.704-(2)(b)(2) and 1.704-2(d).
"Placement Agent" --- Ridgewood Securities Corporation, a Delaware.
corporation, or any successor.
"Preemptive Rights Notice" --- Shall have the meaning set forth in
Section 1.9.
"Projects" --- a natural gas or oil project in which the Fund may
invest.
"Pro Rata Allotment" --- Shall have the meaning set forth in Section
1.9.
"Qualified Class U-1 Investor" --- Shall mean a Person who at the date
of the relevant Preemptive Rights Notice (i) owns of record as reflected in the
records of the Fund Class U-1 Investor Shares and (ii) is determined by the
Manager in its sole discretion to be an "accredited investor" as defined in
Regulation D under the Act.
"Regulation" --- A final or temporary Treasury regulation promulgated
under the Code.
"Ridgewood Energy Corporation" or "Ridgewood" -- Ridgewood Energy
Corporation, a Delaware corporation.
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"Salvage Fund" --- Shall have the meaning set forth in Section 9.6.
"Series" --- Shall have the meaning set forth in Section 9.8(a).
"Share" --- A Shareholder's interest as a member of the Fund.
"Shareholder" --- The Investors and the owner of the Management Share.
The Shareholders are the members of the Fund.
"South Timbalier 135 Project" --- a natural gas exploratory project in
shallow waters operated by Chevron Corporation and in which the Fund will
acquire a fifteen (15%) working interest.
"South Timbalier 135 Special Allocation" --- shall have the meaning
set forth in Section 1.6(f).
"Subscription Agreement" --- The form of subscription agreement
(contained in Exhibit D to the Memorandum, which is separately bound) which each
prospective Investor must complete and execute in order to subscribe for an
interest in the Fund.
"Supplemental Offering" --- A supplemental offering of a Class or
Series of Shares by the Fund at a date to be determined and as further described
in Section 9.8 other than an offering of Class U-1 Investor Shares.
"Temporary Investments" --- The investments by the Fund in: (a)
securities that are obligations of or guaranteed by the U.S. government or an
instrumentality thereof; (b) domestic, corporate or governmental indebtedness
rated Aa or Prime-1 (or the equivalent thereof) or better by Moody's Investors
Service Inc. or A-I (or its equivalent) or better by Standard & Poor's
Corporation; (c) certificates of deposit, money market accounts, savings
accounts, checking accounts or any combination thereof in banks which have total
assets of $100,000,000 or more (or in banks insured by the Federal Deposit
Insurance Corporation (the "FDIC") which have total assets of less than
$100,000,000 if the amount of the Fund's funds deposited in such bank is fully
insured by the FDIC); or (d) any other securities that the Manager determines
are appropriate for short term investments.
"Walker Ridge 155" --- A deepwater exploratory oil project that
includes the rights to six Walker Ridge lease blocks covering a total of 543
square miles and 30,000 acres to be operated by Anadarko Petroleum Corporation
and in which the Fund will acquire a six (6%) working interest.
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"Walker Ridge Operations" --- The Fund's interest in Walker Ridge.
"Working Interest" --- For purposes of this Agreement, a Working
Interest is an interest under a natural gas well, which carries with it the
obligation to pay the costs of the operation of such well. The holders of the
entire Working Interest bear 100% of the costs of exploring, drilling,
developing and operating the well and are entitled to receive revenues derived
from the natural gas production of the well which remain after deduction of the
cost of processing, transporting and marketing such natural gas, including
royalty payments.
ARTICLE 3: LIABILITIES
3.1 Liability of Investors in General. No Investor shall be personally
liable for any debt, obligation, or liability of the Fund whether arising in
contract, tort or otherwise, in any amount beyond the unpaid amount, if any, of
the Capital Contribution subscribed for by him, solely by reason of being a
Shareholder of the Fund.
3.2 Liability of Investors to Fund and Shareholders. Except as provided for
in Section 11.4 (j) hereof, no Investor in his capacity as such shall be liable,
responsible or accountable in damages or otherwise to any other Shareholder or
the Fund for any claim, demand, liability, cost, damage or cause of action of
any nature whatsoever that arises out of or that is incidental to the management
of the Fund's affairs.
3.3 Liability of Manacling Persons to Third Persons, Fund and Shareholders.
No Managing Person shall be liable to any person other than the Fund or a
Shareholder for any obligation of the Fund. No Managing Person shall have
liability to the Fund or to any Shareholder for any loss suffered by the Fund
that arises out of any action or inaction of the Managing Person if the Managing
Person, in good faith, determined that such course of conduct was in the Fund's
best interest and such course of conduct did not constitute bad faith, gross
negligence or willful misconduct of such Managing Person. Nothing in this
Section 3.3, however, shall limit or supersede any contractual or other defenses
a Managing Person may have against the Fund or a Shareholder.
3.4 Indemnification of Managing Persons. (a) Each Managing Person shall be
indemnified from Fund Property against any losses, liabilities, judgments,
expenses and amounts paid in settlement of any claims sustained by him in
connection with the Fund or claims by the Fund, in right of the Fund or by or in
right of any Shareholder. The Manager shall have full and complete discretion
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to authorize indemnification of any Managing Person consistent with the
requirements of Section 3.3 and other sections of this Agreement at any time,
regardless of whether a claim is pending or threatened and regardless of any
conflict of interest between the Manager and the Fund that may arise in regard
to the decision to indemnify a Managing Person.
(b) Expenses, including attorneys' fees, incurred by a Managing Person
in defending any action, suit or proceeding shall be paid by the Fund in advance
of the final disposition of the action, suit or proceeding upon receipt of an
undertaking by the recipient to repay such amount if it shall ultimately be
determined that the Managing Person is not entitled to be indemnified by the
Fund under this Agreement or otherwise and if it is reasonable to make the
advance.
(c) Rights to indemnification and advances of expenses under this
Agreement are not exclusive of any other rights to indemnification or advances
to which a Managing Person may be entitled, both as to action in a
representative capacity or as to action in another capacity taken while
representing another. The restrictions of this Article 3 do not apply to
directors and officers' insurance or any other insurance or bond by the Fund or
by a Managing Person on behalf of the Fund, nor do they apply to any claim
against or proceeds of that insurance or bond.
(d) Each Managing Person shall be entitled to rely upon the opinion or
advice of or any statement or computation by any counsel, engineer, accountant,
investment banker or other person retained by such Managing Person or the Fund
that he believes to be within such person's professional or expert competence.
In so doing, he or she will be deemed to be acting in good faith and with the
requisite degree of care unless he or she has actual knowledge concerning the
matter in question that would cause such reliance to be unwarranted.
ARTICLE 4: ALLOCATION OF PROFIT AND LOSS
4.1 General. The rules set forth below in this Article 4 shall apply for
the purposes of determining each Shareholder's allocable share of the items of
income, gain, loss and expense of the Fund comprising Net Profits or Net Losses
of the Fund for each Fiscal Year, determining special allocations of other items
of income, gain, loss and expense, and adjusting the balance of each
Shareholder's Capital Account to reflect the aforementioned general and special
allocations. For each Fiscal Year, the special allocations in Section 4.2 and
Section 7.4 hereof shall be made immediately prior to the general allocations of
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Section 4.2 hereof. Allocations to the Investors shall be made in accordance
with their relative Investor Shares or in accordance with allocations applicable
to a specific Class or Series, if any, offered pursuant to Section 9.8.
4.2 General Allocations.
(a) General.
(i) Net Profits from Operations. Except as otherwise provided in
this Section 4.2 and subject to Article 7 hereof, Net Profits from Operations
shall be allocated in the following amounts and in the following priorities:
(A) First, to each Shareholder, in the amount of and in
proportion to the excess, if any, of: (i) the aggregate Net Losses allocated to
each such Shareholder pursuant to Section 4.2 (a)(ii) and Section 4.2(b) (in
reverse order in which such Net Losses were previously allocated) for the
current and all prior Fiscal Years; minus (ii) the aggregate Net Profits from
Operations allocated to such Shareholder pursuant to this Section 4.2(a)(i)(A)
for all prior Fiscal Years;
(B) Second, to the extent that distributions of cash are
made pursuant to Sections 8.1, 8.8, 8.9, 8.10 and 9.7, to each Shareholder, in
the amount of and in a manner consistent with the distributions made such
Shareholder pursuant to Sections 8.1, 8.8, 8.9, 8.10 and 9.7; and
(C) Finally, 85% to the Investors, pro rata, and 15% to the
Manager.
(ii) Net Losses from Operations. Except as otherwise provided in
this Section 4.2 and subject to Article 7 hereof, Net Losses from Operations
shall be allocated 85% to the Investors, and 15% to the Manager.
(iii) Net Profits from Capital Transactions. Except as otherwise
provided in this Section 4.2 and subject to Article 7 hereof, Net Profits from
Capital Transactions shall be allocated in the following amounts and in the
following priorities:
(A) First, to each of the Shareholders, in the amount of and
in proportion to the excess, if any, of: (i) the aggregate Net Losses allocated
to each such Shareholder pursuant to Section 4.2 (a)(iv) and Section 4.2 (b) (in
reverse order in which such Net Losses were previously allocated) for the
15
current and all prior Fiscal Years; minus (ii) the aggregate Net Profits from
Operations allocated to such Shareholder pursuant to this Section 4.2(a)(iii)(A)
for all prior Fiscal Years;
(B) Second, to the extent that distributions of cash are
made pursuant to Sections 8.2, 8.8 and 8.10 to each of the Shareholders, in the
amount of and in a manner consistent with the distributions made pursuant to
Sections 8.2, 8.8 and 8.10; and
(C) Finally, to the extent that distributions of cash is not
made pursuant to Sections 8.2, 8.8 or 8.10, to each of the Shareholders, in the
amount of and in a manner consistent with the distributions which would have
been made pursuant to Sections 8.2, 8.8 or 8.10 if distributions had been made
pursuant to Sections 8.2, 8.8 or 8.10.
(iv) Net Losses from Capital Transactions. Except as otherwise
provided in this Section 4.2 and subject to Article 7 hereof, Net Losses from
Capital Transactions shall be allocated 99% to the Investors, pro rata, and 1%
to the Manager.
(v) Net Profits from Temporary Investments. Except as otherwise
provided in this Section 4.2 and subject to Article 7 hereof, Net Profits from
Temporary Investments shall be allocated 99% to the Investors, pro rata, and 1%
to the Manager.
(vi) Special Allocations from South Timbalier 135 Project.
Notwithstanding anything to the contrary is this Agreement (except with respect
to limitations set forth in Section 4.2 (b) and Article 7) all items of income,
deduction, gain, loss or credit attributable to the South Timbalier 135 Project
and otherwise allocable to the Investors shall be allocated solely to the Class
U-1 Investor Shares.
(b) Loss Limitation. Notwithstanding anything to the contrary
contained in this Section 4.2, the amount of Net Losses allocated to any
Shareholder shall not exceed the maximum amount of such items that can be so
allocated without causing such Shareholder to have an Adjusted Capital Account
Deficit at the end of any Fiscal Year. All such items in excess of the
limitation set forth in the previous sentence shall be allocated first to
Shareholders who would not have an Adjusted Capital Account Deficit, pro rata,
until no Shareholder would be entitled to any further allocation, and then to
the Manager.
(c) No Deficit Restoration Obligation. Except as provided in Section
14.6, at no time during the term of the Fund or upon dissolution and liquidation
16
thereof shall a Shareholder with a negative balance in his, her or its Capital
Account have any obligation to the Fund or the other Shareholders to restore
such negative balance, except as may be required by law.
(d) Items. Except as otherwise provided in this Agreement, all items
of Fund income, gain, expense, loss, and deduction for a particular Fiscal Year
and any other allocations not otherwise provided for shall be divided among the
Shareholders in the same proportions as they share Net Profits or Net Losses, as
the case may be, for such Fiscal Year.
(e) Tax Reporting. The Shareholders shall be bound by the provisions
of this Agreement in reporting their shares of Fund Net Profits, Net Losses and
other items for income tax purposes.
(f) Allocation to Fiscal Periods. The Fund may use any permissible
method under Code Section 706(d) and the Regulations thereunder to determine Net
Profits, Net Losses and other items on a daily, monthly or other basis for any
Fiscal Year in which there is a change in a Shareholder's interest in the Fund.
(g) Capital Account Regulations. The definition of "Capital Account"
and certain other provisions of this Agreement are intended to comply with
Regulations Sections 1.704-1(b) and 1.704-2 and shall be interpreted and applied
in a manner consistent with such Regulations. These Regulations contain
additional rules governing maintenance of Capital Accounts that may not have
been provided for in this Agreement because, in part, these rules may relate to
transactions that are not expected to occur and in some instances are prohibited
by this Agreement. If the Fund after consultation with its regular accountants
or tax counsel determines that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto, are computed in order to
comply with such Regulations, or to avoid the effects of unanticipated events
that might otherwise cause this Agreement not to comply with such Regulations,
the Fund shall make such modification without the need of prior notice to or
consent of any Shareholder; so long as no such modification is likely to have a
material effect on the amounts distributable to any Shareholder.
4.3 [INTENTIONALLY OMITTED.]
4.4 Tax Allocations. The tax allocations made pursuant to this Section 4.4
shall be solely for tax purposes and shall not affect any Shareholder's Capital
Account or share of non-tax allocations or distributions under this Agreement.
17
(a) Section 704(c) Allocations. In the event any property of the Fund
is credited to the Capital Account of a Shareholder at a value other than its
tax basis, the allocations of taxable income, gain, loss and deductions with
respect to such property shall be made in a manner that will comply with Code
Section 704(b) and 704(c) and the Regulations thereunder. The Fund, in the sole
and absolute discretion of the Manager, may make, or not make, "curative" or
"remedial" allocations (within the meaning of the Regulations under Code Section
704(c) including, but not limited to:
(i) "curative" allocations which offset the effect of the
"ceiling rule" for a prior Fiscal Year (within the meaning of Regulations
Section 1.704-3(c)(3)(ii)); and
(ii) "curative" allocations from dispositions of contributed
property (within the meaning of Regulations Section 1.704-3(c)(3(iii)(B)).
(b) Depreciation Recapture. To the maximum extent permitted by the
Code, income realized by the Fund in the nature of recapture of depreciation or
other cost recovery allowances (other than of Non-recourse Deductions or
Shareholder Non-recourse Deductions) shall be allocated to Shareholders in the
same proportions as depreciation allowances were allocated to them.
ARTICLE 5: CAPITAL CONTRIBUTIONS OF SHAREHOLDERS
5.1 Additional Capital Contributions. Other than the full payment of a
Shareholder's Capital Contribution, no Shareholder of the Fund shall be required
to make additional contributions to the Fund. However, the Manager may from time
to time and within its sole discretion seek additional capital contributions
from Shareholders, and others, through a supplemental offering, as described in
Section 9.8 hereof. No Shareholder shall be required to participate in such
supplemental offering and the failure to do so shall have no impact, adverse or
otherwise, on such Shareholder's rights and obligations under this Agreement.
5.2 Manager's Capital Contributions. The Manager in its capacity as Manager
shall only be required to make Capital Contributions in accordance with Section
14.6.
5.3. Returns of Capital. If the Fund for any reason at any time does not
find it necessary or appropriate to retain or expend all Capital Contributions,
the Manager in its sole discretion may cause the Fund to return any or all such
18
excess Capital Contributions ratably to Investors. The Investors will be
notified of the source of the payment. The Fund is not obligated to return the
amount of any fees charged in connection with the Investor Capital Contribution
and the return of an Investor Capital Contribution is net of any fees so
charged.
ARTICLE 6: CAPITAL ACCOUNTS
6.1 Capital Accounts. A Capital Account shall be established and maintained
for each Shareholder and shall be adjusted as follows:
(a) The Capital Account of each Shareholder shall be increased by:
(i) The amount of such Shareholder's Capital Contributions to the
Fund;
(ii) The amount of Net Profits allocated to such Shareholder
pursuant to Articles 4 and 7;
(iii) The fair market value of property contributed by the
Shareholder to the Fund (net of liabilities secured by the contributed property
that the Fund under Code Section 752 is considered to have assumed or taken
subject to);
(iv) Any items in the nature of income or gain that are specially
allocated to such Shareholder or adjusted pursuant to Sections 4.2 and 7.4; and
(b) The Capital Account of each Shareholder shall be decreased by:
(i) The amount of Net Losses allocated to such Shareholder
pursuant to Articles 4 and 7;
(ii) All amounts of money and the fair market value of property
paid or distributed to such Shareholder pursuant to the terms hereof (other than
payments made with respect to loans made by such Shareholder to the Fund), net
of liabilities secured by that property that the Shareholder under Code Section
752 is considered to have assumed or taken subject to;
19
(iii) Any items in the nature of expenses or losses that are
specially allocated to such Shareholder pursuant to Sections 4.2 and 7.4; and
(iv) Any return of a Capital Contribution under Section 5.3.
6.2 Calculation of Capital Account. Whenever it is necessary to determine
the Capital Account of any Shareholder, the Capital Account of such Shareholder
shall be determined in accordance with the rules of Regulation Sections
1.704-1(b)(2)(iv) and 1.704-2 (as amended from time to time). If necessary to
comply with the Code, an adjusted Capital Account may be employed.
6.3 Effect of Loans. Loans by any Shareholder to the Fund shall not be
considered contributions to the capital of the Fund.
6.4 Withdrawal of Capital. No Shareholder shall be entitled to withdraw any
part of his Capital Account or to receive any distribution from the Fund, except
as specifically provided herein.
6.5 Capital Accounts of New Shareholders. Any person who shall acquire
Shares in accordance with the terms and conditions of Article 13 of this
Agreement shall have the Capital Account of his transferor after adjustments
reflecting the transfer, if any, except as specifically provided herein.
6.6 Limitation. Neither the Manager nor any other Managing Person shall be
required or shall have any personal liability to fund any or all of any negative
Capital Account of any Investor, including without limitation Investor Capital
Contributions.
ARTICLE 7: ADDITIONAL PROVISIONS APPLICABLE TO
ALLOCATIONS
7.1 Determination of Net Profits and Loss. At the end of each Fiscal Year,
and at such other times as the Fund shall deem necessary or appropriate, each
item of Fund income, gain, expense, loss, deduction and credit shall be
determined for the period then ending and shall be allocated to the Capital
Account of each Shareholder in accordance with this Agreement. With respect to
the admission of Shareholders, the Fund will use the "interim closing date"
method of accounting as permitted by the Regulations.
20
7.2 Determination of Net Profits and Loss in the Event of Transfer. In the
event that a Shareholder transfers his interest in the Fund in accordance with
the terms of this Agreement, the determination and allocation described in
Section 7.1 shall be made as of the date of such transfer and thereafter all
such allocations shall be made to the account of the transferee of such
interest; provided, however, that the Fund may determine that such determination
and allocation shall be pro rata to the Shareholders based upon the actual
number of days in such Fiscal Year that each such Shareholder held an interest
in the Fund. In the event of a pro rata determination and allocation, the
foregoing provisions of this Section relating to a pro rata determination and
allocation will not be applicable to the distributive shares, with respect to
the Shares transferred, of items of Fund income, gain, expense, loss, deduction
and credit arising out of (a) the sale or other disposition of all or
substantially all Fund Property, or (b) other extraordinary nonrecurring items,
all of which will be allocated to the holder of such Fund interest on the date
such items of Fund income, gain, expense, loss, deduction and credit are earned
or incurred.
7.3 Allocation of Net Profits and Net Losses. All items of income, gain,
expense, loss, deduction and credit of the Fund from operations and in the
ordinary course of operation of Fund Property shall be allocated among the
Shareholders in accordance with Article 4.
7.4 Qualified Income Offset and Other Allocation Provisions. (a) If there
is a net decrease in "partnership minimum gain" (within the meaning of
Regulation Section 1.704-2(d)) during a fiscal period, then there shall be
allocated to each Shareholder items of income and gain for such fiscal period
(and, if necessary, subsequent fiscal periods) in proportion to, and to the
extent of, an amount equal to the portion of such Shareholder's share of the net
decrease in partnership minimum gain during such fiscal period that is allocable
to the disposition of Fund Property subject to one or more Non-recourse
Liabilities of the Fund. However, such allocation shall be reduced to the extent
(i) the Shareholder contributes capital to the Fund that is used to repay the
Non-recourse Liability and (ii) the Shareholder's share of the net decrease in
partnership minimum gain is caused by the repayment. The foregoing is intended
to be a "minimum gain chargeback" provision as described in Regulation Section
1.704-2(f), and shall be interpreted and applied in all respects in accordance
with such Regulation. If there is a net decrease in the minimum gain
attributable to a "partner non-recourse debt" (as defined in Regulation Section
1.704-2(b) (4)) for a fiscal period, then, in addition to the amounts, if any,
allocated pursuant to the first sentence of this Subsection 7.4 (a), there shall
be allocated to each Shareholder with a share of such minimum gain attributable
to a "partner non-recourse debt" items of income and gain for such fiscal period
(and, if necessary, subsequent fiscal periods) in proportion to, and to the
21
extent of, an amount equal to the portion of such Shareholder's share of the net
decrease in the minimum gain attributable to a partner non-recourse debt during
such fiscal period that is allocable to the disposition of Fund Property subject
to one or more Non-recourse Liabilities of the Fund. However, such amount shall
be reduced to the extent (i) the Shareholder contributes capital to the Fund
that is used to repay the Non-recourse Liability and (ii) the Shareholder's
share of the net decrease in the minimum gain attributable to a partner
non-recourse debt is caused by the repayment.
(b) If during any fiscal period of the Fund a Shareholder unexpectedly
receives an adjustment, allocation or distribution described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases a deficit
balance in the Shareholder's Capital Account, there shall be allocated to the
Shareholder items of income and gain (consisting of a pro rata portion of each
item of Fund income, including gross income, and gain for such period) in an
amount and manner sufficient to eliminate such deficit balance as quickly as
possible. The foregoing is intended to be a "qualified income offset" provision
as described in Regulation Section 1.704-1(b)(2)(ii)(d), and shall be
interpreted and applied in all respects in accordance with such Regulation.
(c) Notwithstanding anything to the contrary in Article 4 or this
Article 7, any item of deduction, loss or Code Section 705(a)(2)(B) expenditure
that is attributable to "partner non-recourse debt" shall be allocated in
accordance with the manner in which the Shareholders bear the economic risk of
loss for such debt (determined in accordance with Regulation Section
1.704-2(i)).
(d) To the extent that any item of income, gain, loss or deduction has
been specially allocated pursuant to paragraph (a), (b) or (c) of this Section
7.4 ("Required Allocations") and such allocation is inconsistent with how the
same amount otherwise would have been allocated under Sections 4.1 and 4.2,
subsequent allocations under Sections 4.1 and 4.2 shall be made, to the extent
possible, in a manner consistent with paragraphs (a), (b) and (c) of this
Section 7.4 which negates as rapidly as possible the effect of all previous
Required Allocations.
(e) Solely for federal, state and local income and franchise tax
purposes and not for book or Capital Account purposes, income, gain, loss and
deduction with respect to property carried on the Fund's books at a value other
than its tax basis shall be allocated (i) in the case of property contributed in
kind, in accordance with the requirements of Code Section 704 (c) and such
22
Regulations as may be promulgated thereunder from time to time, and (ii) in the
case of other property, in accordance with the principles of Code Section 704
(c) and the Regulations thereunder, in each case, as incorporated among the
requirements of the relevant provisions of the Regulations under Code Section
704(b).
ARTICLE 8: DISTRIBUTIONS TO SHAREHOLDERS
8.1 Distributions of Available Cash from Operations. Subject to the terms
of this Agreement, including Sections 8.8, 8.9 and 9.7, the Fund shall make
distributions to Shareholders of Available Cash from Operations with respect to
each Fiscal Year in the manner and at the time determined by the Manager. Except
as provided in Sections 8.8 and 8.9, the amount of Available Cash From
Operations determined to be available, if any, other than amounts determined by
the Manager to be distributable as an Early Investment Incentive pursuant to
Section 9.7, will be distributed 15% to the Manager and 85% to the Investors.
8.2 Distribution of Available Cash from Capital Transactions. Subject to
the terms of this Agreement, including Sections 8.8 and 9.7, the Fund shall
make distributions to Shareholders of Available Cash from Capital Transactions
with respect to each Fiscal Year, in the manner and at the times determined by
the Manager, as follows:
(i) Before Investors have received total distributions (including
distributions from Available Cash From Operations but excluding distributions
attributable to the Early Investment Incentive and distributions of Available
Cash from Temporary Investments) equal to their Capital Contributions, 99% of
Available Cash From Capital Transactions will be distributed to Investors and 1%
to the Manager.
(ii) After Investors have received total distributions (including
distributions from Available Cash From Operations but excluding distributions
attributable to the Early Investment Incentive and distributions of Available
Cash from Temporary Investments) equal to their Capital Contributions, 15% to
the Manager and 85% to the Investors.
8.3 Interim Distributions Based on Estimates. To the extent that the Fund
makes interim distributions prior to the end of any Fiscal Year, such
distributions are provisional and may be made based upon estimates of the
Manager of the results of operations of the Fund for the balance of the Fiscal
Year, subject to a true-up at the end of such Fiscal Year. To the extent that
the Fund subsequently determines that any amounts were improperly distributed,
and not repaid to the Fund by any Shareholder, the Fund may take such action as
the Manager shall determine to recover such amounts, including, without
limitation, to offset any amounts of future distributions to such Shareholder to
satisfy such repayment obligation.
23
8.4 Distribution in Kind. If the Fund elects to make a distribution in kind
of any of the assets of the Fund, it shall give notice of its election to each
Shareholder, specifying the nature and value of all such assets to be
distributed in kind, the deadline for giving notice of refusal to accept a
distribution in kind and to the extent advisable, the estimated time necessary
for the Fund to liquidate assets if those assets are not distributed and other
information as required. In making such election, the Fund shall not arbitrarily
value assets to be distributed in kind nor shall it specify assets to be
distributed in kind in such a manner as to unreasonably advantage or
disadvantage any Shareholder. A Shareholder may refuse to accept a distribution
in kind by giving written notice to the Fund not later than 30 days after the
effective date of the Fund's notice of distribution. If a Shareholder refuses a
distribution in kind, the Fund shall retain in the Fund's name the portion of
the assets which were to be distributed in kind and which were to be allocated
to the refusing Shareholder (the "Retained Assets") and shall liquidate the
Retained Assets in accordance with this Agreement. Upon liquidation of the
Retained Assets, the sum realized shall be distributed to the Shareholder
refusing distribution in kind in full discharge of the Fund's obligation to
distribute the Retained Assets. In determining the Capital Accounts of the
Shareholders, a distribution of assets in kind shall be considered a sale of the
property distributed so that any unrealized gain or loss with respect to such
property shall be deemed to have been realized and allocated among the
Shareholders in accordance with Article 4.
8.5 Amounts Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment or
distribution to the Fund or the Shareholders shall be treated as amounts
distributed to the Shareholders pursuant to this Article 8 for all purposes
under this Agreement. The Fund may allocate any such amounts among the
Shareholders in any manner that is in accordance with applicable law.
8.6 Limitations. Distributions to Shareholders shall not be made to the
extent they are prohibited by restrictions contained in the Delaware Act or
other provisions of this Agreement. Further, distribution shall not be made to
any Investor to the extent that the effect of such distributions would cause the
balance of such Investor's Capital Account to be below zero unless such Investor
undertakes an affirmative obligation to make a cash contribution to the Fund in
the amount of any negative balance in such Investor's Capital Account and posts
security satisfactory to the Manager to satisfy such restoration obligation.
24
8.7 Distribution of Available Cash from Temporary Investments. Subject to
the terms of this Agreement, the Fund shall make distributions to Shareholders
of Available Cash from Temporary Investments with respect to each Fiscal Year,
in the manner and at the times determined by the Manager as follows: 99% to the
Investors, pro rata, and 1% to the Manager.
8.8 Distributions Attributable to the South Timbalier 135 Project.
Notwithstanding anything to the contrary in this Agreement and not in limitation
of any of the other rights to distributions of the Available Cash from
Operations, Available Cash from Capital Transactions, and/or Available Cash from
Temporary Investments, on and after the closing of a Supplemental Offering and
so long as there are outstanding any Class or Series other than Class U-1
Investor Shares thereafter, the Class U-1 Investor Shares shall be distributed
85% and Manager shall be distributed 15% of the Available Cash from Operations
and of the Available Cash from Capital Transactions to the extent that such
Available Cash from Operations and/or Available Cash from Capital Transactions
are attributable to the South Timbalier 135 Project. For purposes of this
Section 8.8, Available Cash from Operations and Available Cash from Capital
Transactions shall be determined without regard to the Fund's operating
expenses, cash expenditures, and reserves for operating expenses, debt service
or other actual or contingent obligations and liabilities of the Fund, except to
the extent that all such items are or would be directly attributable to the
South Timbalier 135 Project.
8.9 Class U-1 Investor Share Priority Payment on Walker Ridge Operations.
On and after a Supplemental Offering and so long as there are Shares outstanding
of any Class or Series other than Class U-1 Investor Shares thereafter and
notwithstanding anything to the contrary in this Agreement, the distribution of
Available Cash from Operations attributable to the Walker Ridge Operations and
which is distributable to Investors shall be distributed as follows: 10% to
Class U-1 Investor Shares and 90% to all Investors pro rata in accordance with
their relative Investor Shares.
8.10 Classes and Series Issued Pursuant to Section 98. Notwithstanding the
provisions of Sections 8.1 through 8.9 except for the distribution to Class U-1
Investor Shares of 10 % of the Available Cash from Operations attributable to
the Walker Ridge Operations as set forth in Section 8.9, the terms of a Class or
Series of Investor Shares issued pursuant to Section 9.8 in a Supplemental
25
Offering may provide for the receipt by such Class or Series of all or a portion
of Available Cash from Operations or Available Cash from Capital Transactions
attributable to assets purchased with the proceeds of such Supplemental Offering
prior to the distribution of such Available Cash from Operations or Available
Cash from Capital Transactions attributable to such assets to Investors
generally.
ARTICLE 9: OPERATION OF FUND
9.1 Investment Fee. The Fund shall pay Ridgewood out of Fund Property an
investment fee in an amount equal to 4.5% of the base amount of each Capital
Contribution per Investor Share. The base amounts are computed at the rate of
$150,000 of Capital Contributions per Investor Share, without considering any
discounts or waivers of fees. The investment fee payable in respect of Investors
whose subscriptions for Shares are accepted by the Fund in 2006 is for the
Manager's services provided in that year and the fee payable by Investors whose
subscriptions for Shares are accepted by the Fund in a later year is for those
services for capital contributed in that year. The fee in respect of services
performed by the Manager during any year in which additional funds are received
by the Fund under Section 9.6 shall be payable in accordance with the terms and
conditions of any such offering pursuant to Section 9.6.
9.2 Placement Agent and other Selling Commissions. (a) The Fund shall pay
out of Fund Property to Ridgewood Securities Corporation or to any broker-dealer
who affects the sale of one or more whole or fractional Shares, cash selling
commissions in an aggregate amount equal to 8% of the base amount of each
Capital Contribution. The base amounts are computed at the rate of $150,000 of
Capital Contributions per Investor Share, without considering any discounts or
waivers of fees. For serving as Placement Agent, Ridgewood Securities
Corporation shall in addition be entitled to receive out of Fund Property a fee
in an amount equal to 1% of each Capital Contribution. Such commissions payable
on each Capital Contribution in respect of sales of Shares prior to the
Termination Date and shall be due and payable promptly after the latest to occur
of (i) acceptance by the Fund of an Investor's subscription, (ii) the Escrow
Date, or (iii) the receipt by the Fund of the Investor's Capital Contribution.
Except as set forth in this Section 9.2(a), the Placement Agent is not entitled
to any other fee or reimbursement from the Fund.
(b) Ridgewood may pay additional compensation to registered
broker-dealers assisting in the sale of Investor Shares out of its own funds,
including a portion of the cash otherwise distributable to the Manager
26
hereunder or the fees payable to it by the Fund. In addition, Ridgewood, in its
sole discretion, may waive or pay over to certain Investors a portion of
distributions or fees from the Fund otherwise payable to it.
9.3 Other Expenses.
(a) Subject to Sections 9.3(b) and (c), the Fund shall reimburse
Ridgewood for all actual and necessary direct expenses paid or incurred in
connection with the operation of the Fund, including but not limited to travel
expenses and third party accounting, legal and consulting fees, to the extent
that those expenses were incurred by Ridgewood in carrying out responsibilities
assigned to it by this Agreement and were consistent with such Agreement.
(b) The Fund shall pay the Manager out of Fund Property an
organizational, distribution and offering fee in an amount equal to 3.5% of the
base amount of each Capital Contribution. The base amounts are computed at the
rate of $150,000 of Capital Contributions per Investor Share, without
considering any discounts or waivers of fees. The organizational, distribution
and offering fee is intended to cover all expenses incurred in the offer and
sale of Shares, including legal, accounting, and consulting fees, printing,
filing, postage and other expenses of organizing the Fund, distribution and
selling costs and closing costs for the offering. The fee shall be payable on
the Escrow Date as to Shares purchased through that date and on each date
thereafter on which the Fund receives and collects full payment for additional
accepted subscriptions for Shares. If these expenses exceed 3.5% of the
aggregate Capital Contributions, the Manager shall pay such excess.
(c) The Fund shall reimburse Ridgewood for direct expenses actually
incurred for operational or project development services provided by Ridgewood
to the extent (i) the charges for the services do not exceed amounts that would
be charged by unrelated firms offering similar services and (ii) the Projects do
not reimburse the Manager for those expenses.
(d) In respect of the acquisition or disposition of all or a portion
of the Fund Property, the Fund may be required to or may find it advantageous to
and is authorized to, engage a broker or similar adviser and to pay a brokerage
fee to the broker or other persons responsible for bringing the acquisition or
disposition opportunity to the Fund's attention or for investigating, evaluating
or negotiating the acquisition or disposition of the Fund's interest therein.
27
9.4 Management Fee. For each 12-month period beginning on the date the
offering of Investor Shares is commenced, and ending upon the winding up of the
Fund's business, the Fund shall pay the Manager from Fund Property a Management
Fee, payable in advance in equal monthly installments, at the annual rate of
2.5% of the aggregate of Capital Contributions.
(a) The Management Fee will be payable by the Fund in equal monthly
installments in advance beginning on the date the offering commences, and is
payable from Fund cash flow, if any, or from other Fund assets, including
without limitation, contributed capital and interest earned on interim
investments.
(b) The Management Fee shall be in lieu of any reimbursement to the
Manager for administrative and overhead expenses, including without limitation
postage, communication, computer service, accounting, regulatory reporting and
compensation costs of the Manager allocable to the Fund.
(c) The Management Fee does not defray fees, expenses and payments
such as legal, outside accounting and consulting expenses, including amounts
paid by the Fund to persons other than Ridgewood or any Affiliate of Ridgewood,
the Fund or Robert E. Swanson for performing due diligence or identifying
investment opportunities for the Fund. The Management Fee also does not defray
extraordinary expenses incurred by Ridgewood or any expenses described in
Section 9.3 (a). Amounts not defrayed by the Management Fee shall be borne by
the Fund or Ridgewood under Section 9.3.
9.5 Payment and Recoupment of Fees. As soon as funds have been released to
the Fund from the escrow account referred to in Section 1.6 (c), they may be
used to pay the fees referred to in Sections 9.1, 9.2, 9.3 and 9.4 then due. If
the Manager withdraws the offering of Shares, or rejects any subscription for
Shares, any person that has received payments from the proceeds of the offering
shall return such payments to the Fund upon demand by the Manager.
9.6 Salvage Fund. The Fund will (and may be required by the operator of any
Project to) reserve and set aside each month in a separate interest-bearing
account ("Salvage Fund") a portion of the Fund's net revenue, if any, that the
Fund may receive form the production and sale of natural gas from each Project
in which the Fund has invested until such time as the Salvage Fund contains an
amount equal to the Fund's anticipated salvage value of dismantling production
platforms, plugging and abandoning the platform wells, and removing the
platforms and platform wells in respect of each such Project after its useful
28
life, in accordance with applicable federal and state law and regulations. Any
portion of the Salvage Fund that remains after the Fund pays its share of the
salvage costs will be distributed to the Investors in accordance with the
provisions of Section 8.1.
9.7 Early Investment Incentive. The Fund is offering to such Early
Investors an Early Investment Incentive upon the following terms and conditions:
(a) For Investors who subscribe to the Fund between October 1, 2006
and November 17, 2006 and have fully paid their Capital Contribution shall be
entitled to receive an Early Investment Incentive equal to $12,000 per $150,000
Share.
(b) For Investors who subscribe to the Fund between November 18, 2006
and December 22, 2006 and have fully paid their Capital Contribution shall be
entitled to receive an Early Investment Incentive equal to $6,000 per $150,000
Share.
(c) Investors who subscribe to the Fund on or after December 22, 2006
shall not be entitled to, nor shall they receive, an Early Investment Incentive.
(d) The Manager anticipates that the Early Investment Incentive, as
described herein, shall be paid either monthly or quarterly and begin when the
Manager determines that the Fund has sufficient cash flow from operations. The
Manager will continue such payments, as described herein until the Early
Investment Incentive to Investors entitled to such Early Investment Incentive
has been paid in full. Thereafter, all Investors share in distributions of the
Fund in accordance with their individual ownership percentage.
(e) Other than any right to receive an Early Investment Incentive, all
other rights, privileges and obligations of Investors of the Fund shall remain
as described in this Agreement. Except for an Early Investment Incentive, as
described herein, all Investors have equal rights as described in this
Agreement.
9.8 Supplemental Offering of Class or Series Shares. The Fund from time to
time may create and sell additional Investor Shares or additional Classes or
Series of Shares if the Manager in its sole discretion determines that the best
interests of the Fund so require. The Manager is authorized to determine or
alter any or all of the powers, rights, qualifications, limitations or
restrictions granted or imposed upon any such Class or Series or supplemental
29
Investor Shares or the offering thereof, and to fix, alter or reduce the number
of Investor Shares comprising any such Class or Series, and to provide for the
rights and terms of redemption or conversion of the Investor Shares of any such
Class or Series. Any such Investor Shares may be offered to such persons and on
such terms and conditions as the Fund may determine.
(a) Establishment and Designation of Class or Series. Notwithstanding
any other limitations on the authority of the Manager set forth elsewhere in
this Agreement except Section 1.6 (f), the Manager, at any time and from time to
time, may authorize the division of members and interests held hereunder into
two or more classes (each hereinafter a "Class" and collectively "Classes") and
the division of any existing or new Classes into two or more series (each
hereinafter a "Series" and collectively "Series"). Any such authorization shall
(1) establish and designate, and fix and determine the relative rights, powers,
privileges, preferences and duties of the Series or Class (including, without
limitation, voting rights, if any, distribution rights, transfer restrictions,
conversion rights and redemption rights) so authorized; (2) set forth the
purposes, powers, policies, restrictions and limitations of the Series or Class
so authorized; (3) be effective as of the date specified therein; and (4) be
incorporated herein by reference.
(b) Assets and Liabilities Associated with Class or Series. The
Manager shall cause the Fund to maintain separate and distinct records for each
Class and Series and shall cause the assets, debts, liabilities, obligations,
expenses, profits and losses associated with any such Class or Series to be held
and accounted for separately from the other assets, debts, liabilities,
obligations, expenses, profits and losses of the Fund or any other Class and
Series.
(i) Except as required by this Agreement, all consideration
received by the Fund for the issue or sale of interests of a particular Class or
Series together with all Fund assets in which such consideration is invested or
reinvested, all income, earnings, profits and proceeds thereof, including any
proceeds received by the Fund from a transaction involving such assets, shall
irrevocably belong to that Series for all purposes, except as may be otherwise
provided in the offering materials of such Class or Series, subject only to the
rights of creditors of such Class or Series and except as may otherwise be
required by applicable tax laws. In the event that there are any Fund assets, or
any income, earnings, profits, and proceeds thereof, funds or payments which are
not readily identifiable as belonging to any particular Class or Series, the
Manager shall allocate them among any one or more Class or Series in such manner
and on such basis as the Manager, in its sole discretion, deems fair and
30
equitable. Each such allocation by the Manager shall be conclusive and binding
upon the Shareholder of all Series and Classes for all purposes.
(ii) All liabilities, expenses, costs, charges, and reserves of
the Fund which are readily associated with a particular Class or Series shall be
charged against the assets associated with that Class or Series, and any
liabilities, expenses, costs, charges and reserves of the Fund that are not
readily associated with a particular Class or Series shall be allocated and
charged by the Manager to, between or among any of or more of the Classes or
Series, in such manner and on such basis as the Manager, in its sole discretion,
deems fair and equitable. Each such allocation by the Manager shall be
conclusive and binding upon the Shareholders of all Series and Classes for all
purposes.
(iii) The debts, liabilities, obligations and expense incurred
by, contracted for or otherwise existing with respect to a particular Class or
Series shall be enforceable against the assets associated with that Class or
Series only, and not against the assets associated with any other Class or
Series (or against the assets of the Fund generally). The Manager shall cause
notice of this limitation on inter-Series or inter-Class liabilities to be set
forth in the Certificate of Formation of the Fund (whether originally or by
amendment) to be filed in the Office of the Delaware Secretary of State pursuant
to the Delaware Act. All Persons who extend credit to (or with respect to) a
particular Class or Series, or who contract with (or with respect to) or have a
claim against a particular Class or Series, may look only to the assets
associated with that Class or Series for repayment of such credit of to enforce
or satisfy any such contract or claim.
(c) Rights of Members. Unless otherwise provided in the authorization
creating the Class or Series and except as set forth in this Section 9.8, the
rights, powers, privileges, limitations, and restrictions, including voting
rights, of the Members of a particular Class or Series shall be as otherwise set
forth in this Agreement.
ARTICLE 10: ACCOUNTING
10.1 Elections. The Fund shall elect the calendar year as its Fiscal Year.
The Fund shall adopt the accrual method of accounting or such other method of
accounting as the Fund shall determine. The Fund shall elect to be taxed only as
a partnership unless this provision is amended with the consent of Investors
whose aggregate Capital Contributions constitute more than 50% of all Capital
Contributions to the Fund. The Fund may but shall not be required to make an
election under Section 754 of the Code or corresponding state taxation laws. The
Manager is empowered to make any other election permitted by law, including
without limitation an election under Code Section 771, without prior notice to
or consent by any other Shareholder.
31
10.2 Books and Records. The Fund's books and records shall be kept at the
principal place of business of the Fund and shall be maintained in accordance
with generally accepted accounting principles, consistently applied. The Fund
shall maintain supplemental records on the basis utilized in preparing the
Fund's federal income tax return with such adjustments in accounting as are
required by this Agreement or as the Fund determines would be in the best
interests of the Fund.
10.3 Reports. Subject to Section 11.4 hereof, the Fund will keep each
Shareholder and assignee complying with Article 13 currently advised as to
activities of the Fund by communications furnished at least quarterly. An
independent certified public accounting firm selected by the Fund will prepare
the Fund's federal income tax return as soon as practicable after the conclusion
of each year and each Shareholder will be furnished, at that time, with the
necessary accounting information for each Shareholder to take into account and
report separately such Shareholder's distributive share of the income and
deductions of the Fund. The Fund will use its reasonable best efforts to obtain
the information necessary for the accounting firm as soon as practicable and to
transmit the resulting accounting and tax information to the Shareholders as
soon as possible aver receipt from the accounting firm.
10.4 Bank Accounts. The Fund shall maintain separate segregated accounts in
its name at one or more commercial banks, and the cash of the Fund shall be kept
in any of those accounts as determined by the Fund.
10.5 Interim Assets. To the extent the Fund's liquid capital is not
otherwise committed to transactions or required for other purposes, the Fund may
invest such liquid capital in any manner it deems prudent, including, but not
limited to, the following:
(a) Obligations of banks or savings and loan associations that are
insured in their entirety by agencies of the United States government;
(b) Obligations of or guaranteed by the United States government or
its agencies; and
(c) Money market or other short-term obligations or financial
instruments (having a maturity of one year or less).
ARTICLE 11: RIGHTS AND OBLIGATIONS OF INVESTORS
32
11.1 Participation in Management. No Shareholder (other than the Manager
acting in its capacity as such) shall have the right, power, authority or
responsibility to participate in the ordinary and routine management of the
Fund's affairs or to bind the Fund in any manner.
11.2 Rights to Engage in Other Ventures. No Investor or any officer,
director, shareholder or other person holding a legal or beneficial interest in
any Investor shall, by virtue of his ownership of a direct or indirect interest
in the Fund, be in any way prohibited from or restricted in engaging in, or
possessing an interest in, any other business venture of a like or similar
nature including any other natural gas fund, project or property.
11.3 Limitations on Transferability. The interest of an Investor shall not
be transferable except under the conditions set forth in Article 13 hereof.
11.4 Information. (a) In addition to information to be provided under
Section 10.3, the Fund will provide each Investor with information as specified
in this Section 11.4. No Investor has any rights to information from the Fund
except as provided in this Section 11.4 and Section 10.3.
(b) No Investor or other person acting in the right of or for the
benefit of an Investor is entitled to receive from the Fund or its Manager any
information concerning any other Investor or offeree of the Fund's securities,
without the prior written consent of the other Investor or offeree.
(c) The Fund may withhold, redact or summarize other types of
information so as to prevent Investor information from being disclosed in
violation of Section 11.4(b).
(d) Each Investor is entitled to obtain the following information from
the Fund upon reasonable written demand stating the purpose of the demand (which
purpose must be reasonably related to the Investor's interest in the Fund):
(i) True and full information regarding the Fund's business and
financial condition and the contributions to the Fund, as such information is
reasonably related to the Investor's stated purpose;
(ii) Promptly after becoming available, a copy of the Fund's
federal, state and local income tax returns or information returns for the
preceding year and prior years to the extent reasonably available, provided
33
however, that information that would otherwise not be available to an Investor
hereunder shall not become available by reason of it being appended or attached
to or part of such tax returns;
(iii) A copy of the Certificate and this Agreement and all
amendments thereto; and
(iv) Copies of material agreements between the Fund and Ridgewood
Energy Corporation or other Ridgewood Programs, if such agreements, or
provisions thereof, are reasonably related to the Investor's stated purpose.
(e) Investors are not entitled to agreements, technical information,
trade secrets and other confidential information relating to the Fund's
development of the Projects, or to the acquisition or transaction documents
related thereto, unless the Manager, in its sole discretion, determines that
disclosure will not harm the Fund or the Projects.
(f) Notwithstanding Section 11.4 (d), the Fund may keep confidential
from Investors for such period of time as it deems reasonable any other
information that it reasonably believes to be in the nature of trade secrets or
other information that the Fund in good faith believes would not be in the best
interests of the Fund to disclose or that could damage the Fund or its business
or that the Fund is required by law or by agreement with a third party to keep
confidential.
(g) The Fund may establish reasonable standards governing, without
limitation, the information and documents to be furnished and the time and the
location, if appropriate, of furnishing that information and documents. Costs of
providing information and documents shall be borne by the requesting Investor
except for de minimis amounts consistent with the Fund's ordinary practices. The
Fund shall be entitled to reimbursement for its direct, out-of-pocket expenses
incurred in declining unreasonable requests (in whole or in part) for
information.
(h) Providing information to one Investor or to persons outside the
Fund does not act as a waiver of the Fund's rights to withhold information to
another Investor.
(i) The Fund may keep its records in other than written form if
capable of conversion into written form within a reasonable time.
(j) (i) In addition to and not in limitation of any other agreement or
covenant relating to confidentiality entered into by any Investor, each Investor
shall maintain all information relating to the Fund contained in the financial
34
reports and books and records of the Fund, in records of any Governmental Body,
or in any other document or record, in strict confidence and, without the
express prior written consent of the Manager, shall not disclose any of such
information (however obtained from the Fund, the Manager, another Investor,
Governmental Body, a vendor of the Fund or otherwise) to any third party other
than such Investor's attorneys and certified public accountants who have agreed
(A) to keep such information confidential and (B) not to use such information
for their own benefit or for the benefit of the Investor. Notwithstanding
anything to the contrary in this Agreement or in any document relating to the
Fund which prohibits an Investor from disclosing any confidential information
regarding the Fund or the offering of its securities, each Investor (and each
employee, representative or other agent of an Investor):
(y) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of (i) the Fund and (ii) the offering
of its securities, and all materials of any kind (including opinions or other
tax analyses) that are provided to the Investors relating to such tax treatment
and tax structure. The preceding sentence is intended to cause the securities of
the Fund not to be treated as having been offered under conditions of
confidentiality for purposes of Treasury Regulations Sections 1.6011-4(b)(3) and
301.6111-2(a)(2)(ii) (or any successor provisions) and shall be construed in a
manner consistent with such purpose; and
(z) may disclose information contained in any filing by the Fund under
Section 12(b), 12(g), 13(a) or 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the Securities
and Exchange Commission (the "SEC") thereunder which is publicly available
through the SEC.
(ii) No Investor may utilize any list of Investors in the Fund to
conduct any tender offer for Investor Shares subject to Section 14 (e) of the
Exchange Act and the rules and regulations of the SEC thereunder, except a
tender offer subject to Section 14 (d) of the Exchange Act, and if the tender
offeror is using a list of Investors, such list of Investors must have been
received from the Fund pursuant to Section 14 (d) of the Exchange Act and the
rules and regulations of the SEC thereunder.
(iii) If an Investor (other than the Manager) violates the
provisions of this Section 11.4(j), the Manager shall be entitled to recover
from such Investor legal and professional fees incurred by the Manager and the
Fund to enforce Section 11.4 (j) against such Investor and the amount determined
in good faith by the Manager of the damages suffered by the Fund and the Manager
as result of the breach by such Investor of Section 11.4 (j) and to obtain such
equitable relief as a court may grant. Each Investor acknowledges by becoming an
Investor that money damages will not adequately compensate the Manager and the
Fund for breaches by an Investor of this Section 11.4(j).
35
ARTICLE 12:
POWERS, DUTIES AND LIMITATIONS OF MANAGER
12.1 Management of the Fund. The Manager shall have full, exclusive and
complete discretion in the management and control of the Fund. The Manager
agrees to manage and control the affairs of the Fund to the best of its ability
and to conduct the operations contemplated under this Agreement in accordance
with good industry practice. The Manager may bind the Fund.
12.2 Acceptance of Subscriptions. The Manager shall not cause the Fund to
accept any subscription for Shares except as provided in Article 1 or in Section
9.6, as the case may be.
12.3 Specific Limitations. (a) The Manager shall not take any of the
following actions without the affirmative vote or written consent of Investors
pursuant to the procedures set forth in Sections 15.1 and 15.2 of this
Agreement:
(i) Any act that would make it impossible to carry on the Fund's
ordinary business;
(ii) Causing the dissolution or termination of the Fund prior to
the expiration of its term, except as provided under Article 14;
(iii) Possessing Fund Property or assigning rights in specific
Fund Property for other than a Fund purpose; or
(iv) Constituting any other person as a Manager, except as
provided in Article 14.
(b) The Manager shall not take any action that would cause the Fund to
be regulated as an "investment company" under the Investment Company Act of 1940
Act, as amended, nor will the Manager take any action that would cause the Fund
to change its investment objectives and policies without the approval of
Investors whose aggregate Capital Contributions constitute more than 50% of all
Capital Contributions to the Fund at such time.
(c) The Manager shall not sell, exchange, lease, mortgage, pledge or
transfer all or a substantially all of the Fund's assets if not in the ordinary
36
course of operation of Fund Property without the approval Investors whose
aggregate Capital Contributions constitute more than 50% of all Capital
Contributions to the Fund at such time.
12.4 Specific Powers. In addition to the powers and duties otherwise
provided for in this Agreement, the Manager has the following powers and duties:
(a) To direct or supervise the Fund and the Fund's agents in the
exercise of any action relating to the Fund's affairs, including without
limitation the powers described in Section 1.8;
(b) To take the actions specified in Section 12.3 or elsewhere in this
Agreement if the approvals specified therein are obtained;
(c) To amend this Agreement as specified in Section 15.8 or other
provisions of this Agreement;
(d) To lend money to the Fund to do so (without being obligated to do
so) if such loan bears interest at a reasonable rate not exceeding the interest
cost to the Manager or the amount that would be charged to the Fund by an
unrelated lender on a comparable loan for the same purpose. The Manager may not
receive points or other financing charges or fees regardless of the amount
loaned to the Fund. Before the Manager makes any loans to the Fund, the Manager
will attempt to obtain a loan from an unrelated lender secured, if at all, only
by Fund Property;
(e) To approve in its sole discretion any transfer of Investor Shares;
(f) To terminate the offering of Shares at any time prior to the
Termination Date;
(g) To withdraw the offering of Shares at any time as provided for in
this Agreement;
(h) To acquire such assets or properties, real or personal, as the
Manager in its sole discretion deems necessary or appropriate for the conduct of
the Fund's business and to sell, exchange, hedge or distribute to Shareholders
in kind or otherwise dispose of any part of the Fund Property;
(i) To operate any Natural Gas Project or other Fund Property acquired
by the Fund, or to contract for operation under Section 12.5, or to engage
non-Affiliates to operate any Project or other Fund Property on such terms as
they may determine in their sole discretion;
37
(j) To waive any fees or compensation payable to it and to credit such
waived amount in its discretion against any obligations it may have to
contribute capital under Section 14.6;
(k) To provide, or arrange for the provision of, managerial assistance
to the Projects in which the Fund invests;
(l) To retain and own Working Interests in natural gas wells that are
in the same lease block as, but are not part of, Fund Property; and
(m) To establish valuation principles and to periodically apply such
principles to the Fund's investment portfolio.
12.5 Operation by an Affiliate. The Fund, by action of the Manager, may
engage an Affiliate of the Manager to provide development, construction,
operating, management, purchasing, planning and administrative services for any
or all Projects operated by the Fund. Any such Affiliate may be paid for its
services, provided that the cost of such services to the Fund is generally
within the range of costs the Fund would have been charged by an unrelated
third-party. Such Affiliate of the Manager under this Section 12.5 shall act
under the supervision and direction of the Manager and does not have the
authority to bind the Fund or act directly in its name except as authorized by
the Manager or an officer of the Fund. The Manager under this Section 12.5 shall
be reimbursed for all costs incurred by it as provided in Section 9.3 (c) but
shall not receive any compensation in excess of its costs. The Fund may enter
into an operating agreement or other agreements to implement this Section 12.5.
The Manager shall not be compensated or reimbursed under this Section 12.5 for
any services related to the administration of the Fund as a whole, to relations
with Investors or the offering of Shares or to the identification, acquisition
or disposition of Projects.
12.6 Officers of Fund. (a) The Manager shall appoint a President, one or
more Vice Presidents, a Secretary and such other officers and agents of the Fund
as the Manager may from time to time consider appropriate, none of who need be a
Shareholder. Each officer shall have the powers and duties usually appertaining
to a similar officer of any similar limited liability company or alternative
entity under the direction of the Manager and shall hold office at the pleasure
of the Manager. Unless otherwise specified by the Manager, the President of the
Fund shall be its chief executive officer. The same person may hold any two or
more offices. Any officer may resign by delivering a written resignation to the
Manager and such resignation shall take effect upon delivery or as otherwise
specified therein.
38
(b) All conveyances of real property or any interest therein by the
Fund may be made by the Manager, which shall execute on behalf of the Fund any
instruments necessary to affect the conveyance. A certificate of the Secretary
of the Fund stating compliance with this Section 12.6 (b) shall be conclusive in
favor of any person relying thereon.
(c) All other documents, agreements, instruments and certificates that
are to be made, executed or endorsed on behalf of the Fund shall be made,
executed or endorsed by such officers of the Fund, the Manager or persons as the
Manager shall from time to time authorize and such authority may be general or
confined to specific instances. In the absence of other provisions, the
President is authorized to execute any document, to take any action on behalf of
the Fund and to authorize other officers to execute confirmatory documents or
certificates.
12.7 Presumption of Power. The execution by the Manager or the Fund's
officers of leases, assignments, conveyances, contracts or agreements of any
kind whatsoever shall be sufficient to bind the Fund. No person dealing with the
Manager or the Fund's officers shall be required to determine their authority to
make or execute any undertaking on behalf of the Fund, nor to determine any fact
or circumstances bearing upon the existence of their authority nor to see the
application or distribution of revenues or proceeds derived therefrom, unless
and until such person has received written notice to the contrary.
12.8 Obligations Not Exclusive. The Manager and the officers of the Fund
shall be required to devote only such part of their time as is reasonably needed
to manage the business of the Fund or discharge their duties, it being
understood that Ridgewood, as Manager, and the officers of the Fund have and
shall have other business interests and therefore shall not be required to
devote their time exclusively to the Fund. Ridgewood Energy Corporation and the
officers of the Fund shall in no way be prohibited from or restricted in
engaging in, or possessing an interest in, any other business venture of a like
or similar nature. Nothing in this Section 12.8 shall relieve Ridgewood Energy
Corporation of its or their fiduciary or contractual obligations to the
Investors, except as limited in Article 3. Notwithstanding anything to the
contrary contained in this Article or elsewhere in this Agreement, Ridgewood
Energy Corporation has no duty to take any affirmative action with respect to
management of the Fund's business or Fund Property which might require the
expenditure of monies by the Fund or Ridgewood Energy Corporation unless the
Fund is then possessed of such monies available for the proposed expenditure.
39
Except as otherwise provided in this Agreement, under no circumstances shall
Ridgewood Energy Corporation be required to expend its own funds in connection
with the day to day operation of Fund business.
12.9 Removal or Incapacity of a Manager. (a) Investors whose aggregate
Capital Contributions constitute at least 25% of all Capital Contributions to
the Fund at such time may propose the removal of the Manager, either by calling
a meeting or soliciting consents in accordance with the terms of this Agreement.
On the affirmative vote of Investors whose aggregate Capital Contributions
constitute more than 50% of all Capital Contributions to the Fund at such time
the Manager shall be removed effective as of the date the vote is completed.
(b) If Ridgewood is removed as Manager or is incapable of acting as
Manager as enumerated in Section 14.1(c), or it resigns for cause, it may elect
in its sole discretion to take and to cause the Fund to take one of the
following courses of action:
(i) The former Manager may elect to exchange its Management Share
for a series of cash payments from the Fund to the former Manager in amounts
equal to the amounts of distributions to which the former Manager would
otherwise have been entitled under this Agreement in respect of investments made
by the Fund prior to the date of the removal or other incapacity. Such payments
shall be payable out of the Fund's available cash before any distributions are
made to the Investors pursuant to this Agreement. For purposes of this Section
12.9 (b)(i), from and after the date of any such removal or other incapacity:
(i) the former Manager's interest in the Fund attributable to its Management
Share shall be terminated and its Capital Account shall be reduced by the amount
which is attributable to its Management Share and (ii) the former Manager shall
continue to receive its pro rata share of all allocations to Investors provided
in this Agreement that are attributable to Investor Shares acquired by the
Manager.
(ii) In the alternative, the former Manager may engage a
qualified independent appraiser and cause the Fund to engage a separate
qualified independent appraiser (at the Fund's expense in each case), who
together shall value the Fund Property as of the date of such removal or other
incapacity as if the Fund Property had been sold at its fair market value so as
to include all unrecognized gains or losses. If the two appraisers cannot agree
on a value, they shall appoint a third independent appraiser (whose cost shall
be borne by the Fund) whose determination, made on the same basis, shall be
final and binding. Based on the appraisal, the Fund shall make allocations to
40
the former Manager's Capital Account of Net Profits, Net Losses and other items
as of the date of such removal or other incapacity as if the Fund's Fiscal Year
had ended, solely for the purpose of determining the former Manager's Capital
Account. If the former Manager has a positive Capital Account after such
allocation, the Fund shall deliver a promissory note of the Fund to the former
Manager, with a principal amount equal to the balance in that Capital Account
and which shall bear interest at a rate per annum equal to the prime rate in
effect at Chase Manhattan Bank, N.A. on the date of removal or other incapacity,
with interest payable annually and principal payable annually only to the extent
of 25% of any available cash before any distributions thereof are made to the
Investors under this Agreement. If the Capital Account of the former Manager has
a negative balance after such allocation, the former Manager shall contribute to
the capital of the Fund, in its discretion, either cash in an amount equal to
the negative balance in its Capital Account or a promissory note to the Fund in
such principal amount maturing five years after the date of such removal or
other incapacity, bearing interest payable annually at the rate specified above.
For purposes of this Section 12.9 (b)(ii), from and after the date of any such
removal or other incapacity, the former Manager's Management Share in the Fund
shall be terminated and the former Manager shall no longer have any interest in
the Fund other than the right to receive the promissory note and payments
thereunder as provided above.
(c) In the event that the Manager is removed or no longer serves as a
Manager due to an incapacity enumerated in Section 14.1(c), the former Manager
shall not be entitled to any uncollected fees specified in Article 9 to the
extent not accrued before the date of such removal or other incapacity.
(d) Notwithstanding anything else contrary contained herein, removal
of the Manager shall only be effective upon the selection and engagement of a
new manager, pursuant to the terms set forth herein
12.10 Indemnification of Placement Agent. (a) The Placement Agent shall not
have any duty, responsibility or obligation to the Fund or any Shareholder as a
consequence of its right to receive any selling commissions or placement agent
fees from the Fund in connection with any offering of Shares, except to the
extent provided under applicable Federal and State law. The Placement Agent has
not assumed, and will not assume, any responsibility with respect to the Fund
nor will it be permitted by the Fund to assume any duties, responsibilities or
obligations regarding the management, operations or any of the business affairs
of the Fund, subsequent to any offering of Shares.
41
(b) The Placement Agent shall be indemnified and held harmless by
the Fund against any losses, damages, liabilities or costs (including reasonable
attorneys' fees) arising from any threatened, pending or completed action, suit,
claim or proceeding by any Shareholder against the Placement Agent (except as
may be limited by the Act or applicable state statutes), based upon the
assertion that the Placement Agent has any continuing duty or obligation,
subsequent to any offering of Shares, to the Fund or any Shareholder or
otherwise to monitor Fund operations or report to Investors concerning Fund
operations.
12.11 Potential Conflicts of Interest. (a) There are potential conflicts of
interest involved in the operation of the Fund, including but not limited to:
(i) competing demands for management resources of Ridgewood and
other Affiliates;
(ii) conflicts between the interests of Ridgewood and its
Affiliates in receiving compensation from the Fund for investment activities,
operating activities, and divestitures, as well as reimbursement for expenses,
and the interests of the Investors;
(iii) conflicts relating to the allocation of costs and expenses
among Ridgewood's other investment programs;
(iv) conflicts arising from the fact that Ridgewood will not make
a capital contribution in respect of its interest as such in the Fund and that
the Investors will supply all of the capital of the Fund;
(v) conflicts caused by the fact that Ridgewood shares in gains
realized from the Projects but does not share in losses realized on such
projects;
(vi) conflicts caused by the fact that Ridgewood has broad
discretion to determine distributions, allocations of profit and loss and other
items and that the entitlements of Ridgewood to fees, distributions and other
items can be increased or decreased as a result of the use of that discretion;
(vii) conflicts caused by the fact that Ridgewood may make
subjective determinations of the value of the Fund's assets, and any such
determination affects the performance record of the Fund;
(viii) conflicts between the interests of the Fund and of other
programs when Ridgewood allocates favorable or unfavorable investment
42
opportunities among them, and conflicts arising if one program or Fund supplies
capital for an investment and another program or Fund later is allocated a
portion of that investment and returns a proportionate amount of capital to the
first;
(ix) conflicts between the interests of the Fund and other
programs sponsored by Ridgewood and its Affiliates;
(x) potential interests of Ridgewood or its Affiliates in
competing investment programs;
(xi) conflicts that may arise because the Fund may effect
acquisition and development activities on its own or together with Affiliates;
(xii) the lack of independent representation of Investors in
structuring this offering and in determining compensation or with respect to
material transactions between the Fund and other programs sponsored by
Ridgewood, which would require only the approval of Ridgewood for authorization;
and
(xiii) the Fund's Projects may be competing against the projects
of other programs sponsored by Ridgewood and, additionally, officers of
Ridgewood and of the Fund may be directors or advisers to competing projects.
(b) In determining a course of action or deciding among various
alternatives, the Manager will consider these and other conflicts that may exist
and exercise reasonable business judgment when determining such action or
choosing among various alternatives. The Manager shall not be liable to
Shareholders hereunder regarding such action unless the Manager exercised bad
faith, gross negligence or willful misconduct.
ARTICLE 13: TRANSFERS OF SHARES
13.1 Transfer or Resignation by a Manager. The Manager shall not sell,
assign or otherwise transfer its Management Share or resign without first
obtaining the consent of more than 50% of the Shareholders, except that (i) a
Manager may pledge its Management Share for a loan; provided that such pledge
does not reduce the cash flow of the Fund distributable to other Shareholders
and (ii) a Manager may waive or assign compensation or fees payable to it.
13.2 Transfers by Investors. An Investor may sell, exchange or transfer his
Shares except as restricted by and upon compliance with all applicable laws,
43
including federal and state securities laws and regulations, and all of the
following provisions of this Section 13.2:
(a) Shares may not be voluntarily transferred to any person or entity
if, as determined by the Fund or the Manager, in its discretion, such sale,
exchange or transfer would have adverse regulatory consequences to the Fund or
any Fund Property, including, but not limited to, imposing upon the Fund, as a
result of such sale, exchange or transfer, a legal requirement to register the
Fund as a public company pursuant to the Securities Exchange Act of 1934.
(b) Within 30 days after written notice of a proposed sale, assignment
or transfer is received by the Fund from an Investor, the Fund may request in
its sole discretion that the transferring Shareholder obtain an opinion of
counsel acceptable to the Fund that the proposed transfer (i) would not
invalidate the exemption afforded by Section 4(2) of the Act or by Regulation D
promulgated under the Act and the exemption afforded by any applicable state
securities laws as to any offering of interests in the Fund and (ii) complies
with the exemption afforded by Section 4(1) of the Act and qualifies for an
exemption from registration under any applicable state securities laws
(including any investor suitability standard applicable to the transferee or the
Fund).
(c) The written approval of the Manager must be obtained, the granting
or denial of which (or the placing of conditions on which) shall be within its
sole and absolute discretion and may be denied for any reason including, without
limitation, that the admission of the proposed transferee or the transfer may be
harmful to the Fund or its operations.
(d) The transferor and transferee must deliver a dated notice in
writing signed by each, confirming that (i) the transferee accepts and agrees to
comply with all the terms of this Agreement and (ii) the transfer was made in
compliance with this Agreement and all applicable laws and regulations.
(e) The transferor, transferee and the Fund must execute all other
certificates, instruments and documents and take all such additional action as
the Fund may deem appropriate.
(f) The Fund may require as a condition to any transfer that may
create a future interest that an opinion of counsel acceptable to the Fund be
delivered to the Fund confirming that the proposed transfer does not have
adverse effects on the Fund under the rule against perpetuities or similar
provisions of law. Transfers shall be effective and recognized upon fulfillment
44
of the requirements of clauses (a) through (f) above and the transferee shall be
an Investor owning Investor Shares with the same rights as appertained to the
transferor. Any purported sale or transfer consummated without first complying
with this Section 13.2 shall be void.
(g) Notwithstanding anything contrary contained in this Article 13,
neither the Fund nor the Manager will allow or facilitate a voluntary transfer,
either by gift or otherwise, or sale of Shares unless the Shares have been held
by the Shareholder for at least one (1) year, in the case of a gift or other
transfer, or two (2) years in the case of a sale, provided however, the
transfers (but not sales) will be considered by the Fund prior to the expiration
of these holding periods if after such transfer the same Shareholder remains the
ultimate owner of the transferred share.
13.3 Assignments by Operation of Law. If any Investor shall die, with or
without leaving a will, or become non compos mentis, bankrupt or insolvent, or
if a corporate, partnership or trust Investor dissolves during the Fund term or
if any other involuntary transfer of an Investor's Shares is made, the legal
representatives, heirs and legatees (and spouse, if the Shares have been
community property of such Investor and his or her spouse), bankruptcy
assignees, successors, assigns and corporate, partnership or trust distributees
or such other involuntary transferees (collectively "Involuntary Transferees")
shall not become transferees but shall have (subject to the other terms and
provisions hereof) such rights as are provided with respect to such persons
under the law; provided, however, that such Involuntary Transferees shall not be
an Investor, as defined herein, unless such Involuntary Transferees become
Investors in accordance with and subject to the provisions of Section 13.2
including, but not limited to the right to of the Fund to deny or place
conditions on any transfer if by granting such transfer it would require the
Fund to register as a public company under the Securities Exchange Act of 1934.
13.4 Expenses of Transfer. In the sole discretion of the Fund, the person
acquiring Shares pursuant to any of the provisions of this Article 13 may be
required to bear all costs and expenses necessary to effect a transfer of such
Shares including, without limitation, reasonable attorney's fees incurred in
preparing any required amendments to this Agreement and the Certificate to
reflect such transfer or acquisition and the cost of filing such amendments with
the appropriate governmental officials.
13.5 Survival of Liabilities. No sale or assignment of Shares shall release
the transferor from those liabilities to the Fund, which survive such
assignment, or sale as a matter of law or that are imposed under Section 3.4.
45
13.6 No Accounting. No transfer of Shares, whether voluntary, involuntary
or by operation of law, shall entitle the transferor or transferee to demand or
obtain immediate valuation, accounting or payment of the transferred Shares.
ARTICLE 14: DISSOLUTION, TERMINATION AND LIQUIDATION
14.1 Dissolution. Unless the provisions of Section 14.2 are elected, the
Fund shall be dissolved and its business shall be wound up upon the decision of
the Manager to withdraw the offering of Shares described in the Memorandum in
accordance with Section 12.4(g) or on the earliest to occur of:
(a) December 31, 2047;
(b) The sale of all or substantially all of the Fund Property;
(c) The death, removal, dissolution, resignation, insolvency,
bankruptcy or other legal incapacity of the Manager or any other event which
would legally disqualify the Manager from acting hereunder;
(d) The decision of all Investors or the Manager and a Majority of
Investors; or
(e) The occurrence of any other event, which, by law, would require
the Fund to be dissolved.
14.2 Continuation of the Fund. Upon the occurrence of any event of
dissolution described in Sections 14.1 (a) through (e), inclusive, the Fund
shall be dissolved and wound up unless (i) the Manager and a majority of the
Shareholders within 90 days after the occurrence of any such event of
dissolution elect to continue the Fund or, (ii) if there are no remaining
Manager within 90 days after the occurrence of any such event of dissolution,
then, by an affirmative vote of a majority of the Shareholders, the Fund shall
be continued on the terms and conditions herein contained and such Shareholders
shall designate one or more persons willing to be substituted as a Manager. In
the event there is no remaining Manager and the Shareholders have elected to
continue the Fund, as set forth herein, it shall be continued with the new
Manager or Manager who shall succeed to and assume all of the powers, privileges
and obligations of the previous Manager hereunder except as specified in Section
12.9. In the event of dissolution under this Section 14.2, the former Manager
shall have the rights specified in Section 12.9.
46
14.3 Liquidation Procedure. Upon dissolution of the Fund for any reason:
(a) A reasonable time shall be allowed for the orderly liquidation of
the assets of the Fund and the discharge of liabilities to creditors so as to
enable the Fund to minimize the losses normally attendant to liquidation;
(b) The Shareholders shall continue to receive Available Cash from
Operations or Available Cash From Capital Transactions, as the case may be,
subject to the other provisions of this Agreement and to the provisions of
subsection (c) hereof, and shall share Net Profits and Net Losses for all tax
and other purposes during the period of liquidation; and
(c) The Manager shall act as liquidating Manager and shall proceed to
liquidate the Fund Properties to the extent that they have not already been
reduced to cash unless the liquidating Manager elects to make distributions in
kind to the extent and in the manner herein provided and such cash, if any, and
property in kind, shall be applied and distributed to the Shareholders to the
extent of, and in proportion to, the positive balances of their Capital Accounts
and then in accordance with Article 8.
14.4 Liquidating Trustee. (a) If the dissolution of the Fund is caused by
circumstances under which no Manager is available to act as liquidating Manager
or if all liquidating Manager are unable or refuse to act, the Shareholders, by
a majority vote, shall appoint a liquidating trustee who shall proceed to wind
up the business affairs of the Fund. If no liquidating trustee is appointed
within 180 days after the event of dissolution, any Shareholder may petition the
Court of Chancery of Delaware to appoint a liquidating trustee. The liquidating
trustee shall have no liability to the Fund or to any Shareholder for any loss
suffered by the Fund which arises out of any action or inaction of the
liquidating trustee if the liquidating trustee, in good faith, determined that
such course of conduct was in the best interests of the Shareholders and such
course of conduct did not constitute negligence or misconduct of the liquidating
trustee. The liquidating trustee shall be indemnified by the Fund against any
losses, judgments, liabilities, expenses and amounts paid in settlement of any
claims sustained by it in connection with the Fund, provided that the same were
not the result of negligence or misconduct of the liquidating trustee.
(b) Notwithstanding the above, the liquidating trustee shall not be
indemnified and no expenses shall be advanced on its behalf for any losses,
liabilities or expenses arising from or out of an alleged violation of federal
47
or state securities laws, unless (1) there has been a successful adjudication on
the merits of each count involving alleged securities law violations as to the
particular indemnitee, or (2) such claims have been dismissed with prejudice on
the merits by a court of competent jurisdiction as to the particular indemnitee,
or (3) a court of competent jurisdiction approves a settlement of the claims
against a particular indemnitee.
14.5 Death, Insanity, Dissolution or Insolvency of an Investor. The death,
insanity, dissolution, winding up, insolvency, bankruptcy, receivership or other
legal termination of an Investor who is not a Manager shall have no effect on
the life of the Fund and the Fund shall not be dissolved thereby.
14.6 Manager's Capital Contributions. Upon or prior to the first
distribution in liquidation, the Manager shall contribute to the capital of the
Fund an amount equal to any deficit in the Capital Account of such Manager
calculated just prior to the date of such distribution, to the extent not
previously contributed. The Manager, in its discretion, may comply with this
Section 14.6 by waiving all or a portion of a distribution or any other
compensation to which it is entitled under this Agreement.
14.7 Withdrawal of Offering. Dissolution of the Fund resulting from
withdrawal of the offering of Shares is governed by Section 1.6(c) and Section
12.4(g).
ARTICLE 15: MISCELLANEOUS
15.1 Notices. Notices or instruments of any kind which may be or are
required to be given hereunder by any person to another shall be in writing and
deposited in the United States Mail, certified or registered, postage prepaid,
or delivered overnight and addressed to the respective person at the address
appearing in the records of the Fund. Any Investor may change his address by
giving notice in writing, stating his new address, to the Fund. Any notice shall
be deemed to have been given effective as of 72 hours, excluding Saturdays,
Sundays and holidays, after the depositing of such notice in an official United
States Mail receptacle. Notice to the Fund may be addressed to its principal
office.
15.2 Meetings of Shareholders. (a) Meetings. The Manager may call meetings
of the Shareholders, the Investors or any subgroup thereof concerning any matter
on which they may vote as provided by this Agreement or by law or to receive and
act upon a report of the Manager on matters pertaining to the Fund's business
and activities. Investors holding 25% or more of the outstanding securities or
Shares entitled to vote on the matter may also call meetings by giving notice to
the Fund demanding a meeting and stating the purposes therefore. After calling a
48
meeting or within 20 days after receipt of a written request or requests meeting
the requirements of the preceding sentence, the Fund shall mail to all
Shareholders entitled to vote on the matter written notice of the place and
purposes of the meeting, which shall be held on a date not less than 15 days nor
more than 45 days after the Fund mails the notice of meeting to the
Shareholders. Any Shareholder entitled to vote on the matter may appear and vote
or consent at a meeting by proxy, provided that such authority is granted by a
writing signed by the Shareholder and delivered to the Fund at or prior to the
meeting.
(b) Consents. Any consent required by this Agreement or any vote or
action by the Shareholders or any subgroup thereof may be effected without a
meeting by a consent or consents in writing signed by the persons required to
give such consent, to vote or to take action. The Manager may solicit consents
or Investors holding 25% or more of the outstanding securities or Shares
entitled to vote on the matter may demand a solicitation of consents by giving
notice to the Fund stating the purpose of the consent and including a form of
consent. The Fund shall effect a solicitation of consents by giving those
Shareholders who may vote a notice of solicitation stating the purpose of the
consent, a form of consent and the date on which the consents are to be
tabulated, which shall be not less than 15 days nor more than 45 days after the
Fund transmits the notice of solicitation for consents. If Investors holding 25%
or more of the outstanding securities or Shares entitled to vote on the matter
demand a solicitation, the Fund shall transmit the notice of solicitation not
later than 20 days after receipt of the demand.
(c) General. To the extent not inconsistent with this Agreement,
Delaware law governing meetings, proxies and consents for limited liability
companies shall apply as to the procedure, validity and use of meetings, proxies
and consents. Any Shareholder may waive notice of or attendance at any meeting
or notice of any consent, whether before or after any action is taken. The date
on which the Fund transmits the notice of meeting or notice soliciting consents
shall be the record date for determining the right to vote or consent. A list of
the names, addresses and shareholdings of all Shareholders shall be maintained
as part of the Fund's books and records.
(d) Interested Parties. A Shareholder may vote Shares owned by it on
any question permitted under this agreement regardless of whether that
Shareholder, Affiliates of that Shareholder or other persons associated with or
related to that Shareholder have a personal interest in the subject matter of
the transaction Delaware law governing the voting of shares in a corporation
shall determine the legal effect of a vote by a Shareholder having an interest
described in the preceding sentence.
49
15.3 Loan to Fund by Shareholder. If any Shareholder shall, in addition to
his Capital Contribution to the Fund, lend any monies to the Fund, the amount of
any such loan shall not increase his Capital Account nor shall it entitle him to
any increase in his share of the distributions of the Fund, but the amount of
any such loan shall be an obligation on the part of the Fund to such Shareholder
and shall be repaid to him on the terms and at the interest rate negotiated at
the time of the loan, and the loan shall be evidenced by a promissory note
executed by the Fund except that no Shareholder shall be personally obligated to
repay the loan, which shall be payable and collectible only out of the assets of
the Fund.
15.4 Delaware Laws Govern. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware. Each Party hereto agrees
and consents (i) to be subject to the personal jurisdiction of the courts of the
State of Delaware, (ii) that venue for any litigation between or against any of
the parties hereto may be maintained in New Castle County, Delaware, and (iii)
that service of process may be achieved by mail return receipt requested,
overnight delivery or personal hand delivery.
15.5 Arbitration.
(a) Binding Arbitration. (i) Except for equitable relief sought by the
Manager or Fund pursuant to Section 11.4(j)(ii) and except as set forth in
Section 15.5 (b) or under any applicable securities laws, any individual claim
or dispute (collectively "Claims") of every type (whether under statute, in
contract, tort or otherwise and whether for money damages, penalties or
declaratory or equitable relief) arising from or related in any way to this
Agreement, including any question regarding its existence, validity or
termination, or the operation and management of the Fund by the Fund or the
Manager, or their employees, officers, directors, agents or assigns, shall be
resolved by binding arbitration governed by the Federal Arbitration Act and
conducted in accordance with rules of the American Arbitration Association,
provided however, that if the Federal Arbitration Act should be held
inapplicable for any reason, including the ruling of a court, then the laws of
the State of Delaware shall apply to such arbitration hearing and proceeding.
The number of arbitrators shall be three (3), with each Party having the right
to appoint one arbitrator, who shall together appoint a third neutral
arbitrator, each such arbitrator having experience in the field of securities
law and offerings, including private securities offerings. Such arbitration
hearing and proceedings shall be conducted in New York, New York.
50
(ii) The Parties hereby expressly waive any right of appeal to
any court. There will be no written record or transcript of the proceedings
required, unless otherwise requested by the Parties or a Party, who shall bear
the costs thereof. All of the Arbitrators' orders and decisions may be
enforceable in, and judgment upon any award may be rendered in the arbitration
proceeding may be confirmed and entered by, a Delaware court having proper
jurisdiction. The Parties agree that all arbitration proceedings concluded
hereunder and the decision of the Arbitrators shall be kept confidential and not
disclosed to any third party, except for a Party's affiliates, accountants and
lawyers.
(iii) Notwithstanding anything else contrary contained herein,
the Arbitrators shall have no authority or power to award consequential,
special, indirect, treble, exemplary or punitive damages of any type, the
Parties hereby waiving their rights, if any, to recover consequential, special,
indirect, treble, exemplary or punitive damages with respect to this Agreement.
(b) No Class Action. The Parties expressly agree that no Claim may be
brought or submitted to arbitration or heard by any arbitration panel pursuant
to this Section 15.5 as a class action, or consolidated with any other Claims
and the arbitrators or arbitration panel shall have no authority to consolidate
claims or certify a class of Claims. Each Shareholder expressly waives any right
it may have to submit or consolidate their Claim with those of other
Shareholders and shall be limited to submitting their individual claim to
arbitration. No arbitrator or arbitration panel shall have the power or
authority to interpret the legality or enforceability of this Section 15.5(b)
and any such dispute regarding the applicability, legality or enforceability of
this Section 15.5 (b) shall be submitted to and exclusively determined by a
court of law in accordance with the requirements of Section 15.4. If this
Section 15.5 (b) is found by a court of law to be invalid or unenforceable under
any law or statute, then the entirety of Section 15.5 shall be null and void
with respect to any Claims and, thereafter, all Claims shall only be resolved by
filing an action in a court of law in accordance with Section 15.4 hereof. The
Parties agree that any arbitration shall be postponed during the pendency of any
appeal of a court's ruling regarding the legality or enforceability of this
Section 15.5(b).
(c) Notwithstanding anything contrary, nothing in this Section 15.5 is
intended to be a waiver of any right that an Investor may have specifically
under the Investment Advisers Act of 1940.
15.6 Limited Power of Attorney. Each Investor irrevocably constitutes and
appoints the Manager as his true and lawful attorney-in-fact and agents to
effectuate and to act in his name, place and stead, in effectuating the
51
purposes of the Fund including the execution, verification, acknowledgment,
delivery, filing and recording of this Agreement as well as all authorized
amendments thereto and hereto, all assumed name and doing business certificates,
documents, bills of sale, assignments and other instruments of conveyances,
leases, contracts, loan documents and counterparts thereof, and all other
documents which may be required to effect a continuation of the Fund and which
the Fund deems necessary or reasonably appropriate, including documents required
to be executed in order to correct typographical errors in documents previously
executed by such Investor and all conveyances and other instruments or other
certificates necessary or appropriate to effect an authorized dissolution and
liquidation of the Fund. The power of attorney granted herein shall be deemed to
be coupled with an interest, shall be irrevocable and shall survive the death,
incompetence or legal disability of an Investor.
15.7 Disclaimer. In forming this Fund, all Investors recognize that the
Fund's businesses are highly speculative and that neither the Fund nor the
Manager nor any other Managing Person makes any guaranty or representation to
any Investor as to the probability or amount of gain or loss from the conduct of
Fund business.
15.8 Amendment and Construction of Agreement. (a) This Agreement may be
amended by the Manager, without notice to or the approval of the Investors, from
time to time for the following purposes: (1) to cure any ambiguity, formal
defect or omission or to correct or supplement any provision herein that may be
inconsistent with any other provision contained herein or in the Memorandum or
to effect any amendment without notice to or approval by Investors, as specified
in other provisions of this Agreement; (2) to make such other changes or
provisions in regard to matters or questions arising under this Agreement that
will not materially and adversely affect the interest of any Investor; (3) to
otherwise equitably resolve issues arising under the Memorandum or this
Agreement, so long as similarly situated Investors are not treated materially
differently; (4) to maintain the federal tax status of the Fund and any of its
Shareholders (so long as no Investor's liability is materially increased without
his consent); (5) as otherwise provided in this Agreement or (6) to comply with
law.
(b) Other amendments to this Agreement may be proposed by either the
Manager or Investors whose aggregate Capital Contributions constitute 25% or
more of the Capital Contributions, in each case by calling a meeting or
requesting consents under Section 15.2 and specifying the text of the amendment
and the reasons therefore. No amendment under this Section 15.8 (b) that
increases any Shareholder's liability, changes the Capital Contributions
required of him or his rights in interest in the Net Profits, Net Losses,
52
deductions, credits, revenues or distributions of the Fund in more than a de
minimis manner, his rights on dissolution, or any voting or management rights
set forth in this Agreement shall become effective as to that Shareholder
without his written approval thereof. Unless otherwise provided herein, all
other amendments must be approved by the holders of a Majority of the
outstanding Voting Shares and, if the terms of a series of Shares or securities
so require, by the vote of the holders of such class, series or group specified
therein.
(c) The Manager has power to construe this Agreement and to act upon
any such construction. Its construction of the same and any action taken
pursuant thereto by the Fund or a Managing Person in good faith shall be final
and conclusive.
15.9 Bonds and Accounting. The Manager shall not be required to give bond
or otherwise post security for the performance of their duties and the Fund
waives all provisions of law requiring or permitting the same. No person shall
be entitled at any time to require the Fund or any Shareholder to submit to a
judicial or other accounting or otherwise elect any judicial, administrative or
executive supervisory proceeding applicable to non-business trusts.
15.10 Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the Shareholders (and their spouses if the Shares of such
Shareholders shall be community property) as well as their respective heirs,
legal representatives, successors and assigns. This Agreement constitutes the
entire agreement between the Fund and the Shareholders with respect to the
formation and operation of the Fund, other than the Subscription Agreement
entered into between the Fund and each Investor and the Management Agreement.
15.11 Headings. Headings of Articles and Sections used herein are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
15.12 Tax Matters Partner. The Manager is the tax matters partner of the
Fund under Code Section 6221.
RIDGEWOOD ENERGY CORPORATION
Initial Manager
By: /s/ Robert E. Swanson
---------------------
Robert E. Swanson, President
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