As filed with the Securities and Exchange Commission on June 23, 2005
Securities Act File No. 333-111561
Investment Company Act File No. 811-21480
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE TO
ISSUER TENDER OFFER STATEMENT
(Under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934)
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
(Name of Issuer)
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
(Name of Person(s) Filing Statement)
Limited Liability Company Interests
(Title of Class of Securities)
23303Q108
(CUSIP Number of Class of Securities)
Joshua Kestler John H. Kim
Vice President Director and Senior Counsel
The Topiary Fund for Benefit Plan Deutsche Asset Management
Investors (BPI) LLC 25 DeForest Avenue
25 DeForest Avenue Summit, New Jersey 07901
Summit, New Jersey 07901 (908) 608-3160
(908) 608-3159
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
Copies to:
John A. MacKinnon, Esq.
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
(212) 839-5300
CALCULATION OF FILING FEE
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Transaction Valuation: $9,383,399(a) Amount of Filing Fee: $1,876.68(b)
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(a) Calculated as the aggregate maximum repurchase price for limited
liability company interests.
(b) Calculated at 1/50th of 1% of the Transaction Valuation.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-1l(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: ______________________________
Form or Registration No.: ____________________________
Filing Party: ______________________________________________
Date Filed: ________________________________________________
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third-party tender offer subject to Rule 14d-1.
[x] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
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ITEM 1: Summary Term Sheet
The Topiary Fund for Benefit Plan Investors (BPI) LLC, a closed-end,
non-diversified, management investment company organized as a Delaware limited
liability company (the "Fund"), is offering to repurchase limited liability
company interests (the "Interests") in the Fund from members of the Fund
("Members"). Subject to the conditions set forth in the Offer to Repurchase
document and related Letter of Transmittal (attached as Exhibit (a)(1)(ii) and
Exhibit (a)(1)(iii), respectively), the Fund will repurchase up to $9,383,399
(approximately 15% of the net asset value of the Master Fund estimated as of
June 30, 2005) of limited liability company Interests that are tendered by
Members and not withdrawn prior to 12:00 midnight, Eastern Time, on July 27,
2005, subject to any extensions of the offer to repurchase Interests
("Repurchase Offer").
Members may tender all or a portion of their Interests in the Fund
(defined as a specific dollar value) up to an amount such that they maintain
the minimum required capital account balance of $25,000 after the repurchase
of Interests. If a Member tenders a portion of its Interests, the Fund
reserves the right to repurchase less than the amount a Member tenders if the
repurchase would cause the Member's capital account to have less than the
required minimum balance of $25,000. If the Fund accepts the tender of all or
a portion of a Member's Interests, the Fund intends to make payment for the
Interests it repurchases from one or more of the following sources: cash on
hand, proceeds from the Master Fund's redemption of interests in the
Investment Funds (as defined below), or borrowings. None of the Fund, the
Master Fund, DB Investment Managers, Inc., the investment adviser of the Fund
("Adviser"), or directors of the Fund ("Directors") has decided at this time
to borrow funds to repurchase Interests in connection with the Repurchase
Offer. However, depending on the dollar amount of Interests tendered and
prevailing general economic and market conditions, the Fund, in its sole
discretion, may decide to borrow money to fund all or a portion of the
repurchase price.
The amount due to any Member who tenders all of its Interests in the
Fund (and which are all accepted for repurchase by the Fund) will be equal to
the value of that Member's capital account based on the Fund's net asset value
as of September 30, 2005 or, if the Repurchase Offer is extended, as of a date
designated by the Fund in an amended notice to Members (the "Full Repurchase
Valuation Date"), after giving effect to all allocations, including, but not
limited to, withholding tax, to be made to the Member's capital account as of
such date. The Fund reserves the right to adjust the Full Repurchase Valuation
Date to correspond with any extension of the Repurchase Offer.
The Fund invests substantially all of its assets in The Topiary
Offshore Fund for Benefit Plan Investors (BPI) LDC, a Cayman Islands limited
duration company (the "Offshore Fund"), which in turn invests substantially
all of its assets in The Topiary Master Fund for Benefit Plan Investors (BPI)
LLC (the "Master Fund"), a separate closed-end, non-diversified, management
investment company with the same investment objectives as the Fund and the
Offshore Fund. This structure is sometimes called a "master/feeder" structure.
The Fund has been advised by the Master Fund that the Master Fund is making a
concurrent tender offer to the Offshore Fund to repurchase interests in the
Master Fund at least equivalent in value to the value of the Interests that
the Fund is offering to repurchase. The Offshore Fund will then distribute the
proceeds of such repurchases to the Fund. The Fund cannot make a repurchase
offer larger than the repurchase offer made by the Master Fund.
The Fund's net asset value as of September 30, 2005 will be based in
part on oral or written estimates of the value of the Master Fund's
investments in the private funds in which the Master Fund invests ("Investment
Funds"). Therefore, repurchase payments to Members who tender all of their
Interests in the Fund may not reflect final net asset values for the Full
Repurchase Valuation Date calculated by the Investment Funds; however, the
Fund will generally not make any adjustments for final valuations from the
Master Fund based on adjustments received from the Investment Funds, and the
withdrawing Member (if such valuations are adjusted upwards) or the remaining
Members (if such valuations are adjusted downwards) will bear the risk of
change of any such valuations.
The Repurchase Offer remains open to Members until 12:00 midnight,
Eastern Time, Wednesday, July 27, 2005, or, if the Repurchase Offer is
extended, such time and date as the Fund designates in an amended notice to
Members ("Repurchase Request Deadline"). Until that time, Members have the
right to change their minds and withdraw the tenders of their Interests in the
Fund. Withdrawn Interests may be re-tendered, however, provided that such
tenders are made before the Repurchase Request Deadline by following the
tender procedures described herein. Members who tender Interests may bear a
share of any withdrawal charge imposed on the Master Fund by any Investment
Fund from which the Master Fund withdraws in order to meet tender requests.
If a Member would like the Fund to repurchase all or a portion of the
Member's Interests, the Member should complete, sign and either (i) mail (via
certified mail return receipt requested) or otherwise deliver a Letter of
Transmittal, attached to this document as Exhibit (a)(1)(iii), to PFPC Inc.,
P.O. Box 219, Claymont, Delaware 19703, attention: The Topiary Fund for
Benefit Plan Investors (BPI) LLC, or (ii) fax it to the Adviser, c/o of PFPC
Inc. at (302) 791-2790, so that it is received before 12:00 midnight, Eastern
Time, on Wednesday, July 27, 2005. If the Member chooses to fax the Letter of
Transmittal, it should mail the original Letter of Transmittal to PFPC Inc.
promptly after it is faxed (although the original does not have to be received
before 12:00 midnight, Eastern Time, on Wednesday, July 27, 2005). Of course,
the net asset value of the Interests in the Fund will change between June 30,
2005 (the last time prior to the date of this filing as of which the Fund's
net asset value has been calculated), and September 30, 2005, the date as of
which the value of Interests in the Fund will be determined for purposes of
calculating the repurchase price paid to Members who have tendered all of
their Interests in the Fund (and which have all been accepted for repurchase
by the Fund). Members may obtain the net asset value of the Fund and their
Interests, which the Fund calculates monthly based on the information the
Master Fund receives from the investment advisers of the Investment Funds, by
contacting the Adviser, c/o PFPC Inc., at (302) 791-2810 or at the address
listed above, Monday through Friday, except holidays, during normal business
hours of 9:00 a.m. to 5:00 p.m. (Eastern Time).
Please note that just as each Member has the right to withdraw the
tender of Interests in the Fund, the Fund has the right to cancel, amend,
suspend or postpone this Repurchase Offer at any time before 12:00 midnight,
Eastern Time, on Wednesday, July 27, 2005. Also realize that although the
Repurchase Offer expires on July 27, 2005, a Member that tenders all of its
Interests in the Fund (and which are all accepted for repurchase by the Fund)
will remain a Member through September 30, 2005, when the value of that
Member's Interests is determined.
Within five days of the Repurchase Request Deadline, or no later than
August 3, 2005, each Member whose Interests in the Fund or portion thereof
have been accepted for repurchase will be given a non-interest bearing,
non-transferable promissory note by the Fund entitling the Member to be paid
an amount equal to 100% of the unaudited net asset value of such Member's
capital account (or portion thereof) being repurchased. In the case of both a
full or partial tenders of Interests, the note will entitle the Member to be
paid within thirty (30) days after the Full Repurchase Valuation Date or, if
the Master Fund has requested withdrawals of its capital from any Investment
Funds in order to fund the repurchase of Interests, ten business days after
the Master Fund has received at least 90% of the aggregate amount withdrawn by
the Master Fund from such Investment Funds, whichever is the later (either
such date, a "Payment Date").
ITEM 2. Subject Company Information
The information required by Item 2 is incorporated by reference to
the Offer to Repurchase (Exhibit (a)(1)(ii)) and the Letter of Transmittal
(Exhibit (a)(1)(iii)), which are attached as exhibits to this Schedule TO.
ITEM 3. Identity and Background of Filing Person.
(a) The name of the filing person is The Topiary Fund for Benefit
Plan Investors (BPI) LLC. The Fund's address is 25 DeForest Avenue, Summit,
New Jersey 07901, and the Fund's telephone number is, c/o Scudder Distributors
Inc., (888) 262-0695. The Adviser of the Fund is DB Investment Managers, Inc.
The Adviser's address is 25 DeForest Avenue, Summit, New Jersey 07901, and the
Adviser's telephone number is (908) 608-3000. The Fund's Directors are Nolan
T. Altman, Louis S. Citron, Edward T. Tokar and Raymond C. Nolte. Their
address is c/o DB Absolute Return Strategies, 25 DeForest Avenue, Summit, New
Jersey 07901.
(b) - (d) Not applicable.
ITEM 4. Terms of the Transaction
The information required by Item 4 is incorporated by reference to
the Offer to Repurchase (Exhibit (a)(1)(ii)) and the Letter of Transmittal
(Exhibit (a)(1)(iii)), which are attached as exhibits to this Schedule TO.
3
ITEM 5. Past Contracts, Transactions, Negotiations and Agreements
(a) - (d) Not applicable.
(e) Under the Fund's Limited Liability Operating Agreement ("LLC
Agreement"), which was included as an appendix to the Fund's prospectus
contained in a pre-effective amendment to the Fund's registration statement on
Form N-2, as filed with the SEC via EDGAR on September 14, 2004, and as
disclosed in the Fund's prospectus dated September 14, 2004 (the
"Prospectus"), the Fund's Board of Directors has sole discretion to determine
whether the Fund will repurchase Interests from Members from time to time
pursuant to written tenders. The Board of Directors expects that, subsequent
to this offer to repurchase Interests from Members as of September 30, 2005,
the Fund will offer to repurchase Interests as of December 31, 2005 and
thereafter as of the last business day of June and December. Neither the Fund
nor the Master Fund is aware of any contract, arrangement, understanding or
relationship relating, directly or indirectly, to this Repurchase Offer
(whether or not legally enforceable) between or among: (i) the Fund, the
Master Fund, the Adviser, any Director of the Fund, or any person controlling
the Fund, the Master Fund, the Adviser or any Director of the Fund; and (ii)
any person, with respect to Interests in the Fund. However, the LLC Agreement
provides that the Fund will be dissolved if any Member that has submitted a
written request, in accordance with the terms of the LLC Agreement, to tender
all of such Member's Interests for repurchase by the Fund has not been given
the opportunity to so tender within a period of two years after the request
(whether in a single repurchase offer or multiple consecutive offers within
the two-year period). A Member who intends to cause the Fund to be dissolved
must so indicate in a separate written request submitted within the applicable
two-year period.
ITEM 6. Purposes of the Repurchase Offer and Plans or Proposals of the Fund
and its Affiliates.
The information required by Item 6 is incorporated by reference to
the Offer to Repurchase (Exhibit (a)(1)(ii)) and the Letter of Transmittal
(Exhibit (a)(1)(iii)), which are attached as exhibits to this Schedule TO.
ITEM 7. Source and Amount of Funds or Other Consideration
The information required by Item 7 is incorporated by reference to
the Offer to Repurchase (Exhibit (a)(1)(ii)) and the Letter of Transmittal
(Exhibit (a)(1)(iii)), which are attached as exhibits to this Schedule TO.
ITEM 8. Interest in Securities of the Fund
The information required by Item 8 is incorporated by reference to
the Offer to Repurchase (Exhibit (a)(1)(ii)) and the Letter of Transmittal
(Exhibit (a)(1)(iii)), which are attached as exhibits to this Schedule TO.
ITEM 9. Persons/Assets, Retained, Employed, Compensated or Used
(a) No persons have been employed, retained or are to be compensated
by the Fund to make solicitations or recommendations in connection with the
Repurchase Offer.
(b) Not applicable.
ITEM 10. Financial Statements.
(a) The information required by Item 10(a)-(b) is incorporated by
reference to Fund's and the Master Fund's audited financial statements for the
period from October 1, 2004 (commencement of operations) through March 31,
2005, each of which were previously filed on EDGAR on Form N-CSR on June 6,
2005, and which the Fund and the Master Fund have prepared and furnished to
members pursuant to Rule 30d-l under the 1940 Act and filed with the
Securities and Exchange Commission pursuant to Rule 30b2-1 under the 1940 Act.
(b) Not applicable.
4
ITEM 11. Additional Information.
(a) (1) None.
(2) None.
(3) Not applicable.
(4) Not applicable.
(5) None.
(b) The Offer to Repurchase, attached hereto as Exhibit (a)(1)(ii),
is incorporated herein by reference in its entirety.
ITEM 12. Exhibits.
(a)(1) (i) Cover Letter to the Offer to Repurchase and Letter of
Transmittal.
(ii) Offer to Repurchase.
(iii) Form of Letter of Transmittal.
(iv) Form of Notice of Withdrawal of Tender.
(a)(2)-(4) Not Applicable
(a)(5) (i) Audited Financial Statements of the Fund for the period from
October 1, 2004 (commencement of operations) through March 31,
2005.*
(ii) Audited Financial Statements of the Master Fund for the
period from October 1, 2004 (commencement of operations) through
March 31, 2005.**
(iii) Consent of PricewaterhouseCoopers LLP.
ITEM 13. Information Required by Schedule 13E-3.
Not applicable.
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* Incorporated by reference to the Fund's Annual report for the period from
October 1, 2004 (commencement of operations) through March 31, 2005 on Form
N-CSR as filed with the Securities and Exchange Commission ("SEC") on June 6,
2005.
** Incorporated by reference to the Master Fund's Annual report for the period
from October 1, 2004 (commencement of operations) through March 31, 2005 on
Form N-CSR as filed with the Securities and Exchange Commission ("SEC") on
June 6, 2005.
5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS
(BPI) LLC
By: /s/ Marielena Glassman
----------------------------------
Name: Marielena Glassman
Title: Treasurer
June 23, 2005
6
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS
(BPI) LLC
By: /s/ Marielena Glassman
----------------------------------
Name: Marielena Glassman
Title: Treasurer
June 23, 2005
EXHIBIT INDEX
Exhibit
(a)(1)(i) Cover Letter to the Offer to Repurchase and Letter of Transmittal
(a)(1)(ii) Offer to Repurchase
(a)(1)(iii) Form of Letter of Transmittal
(a)(1)(iv) Form of Notice of Withdrawal
(a)
EXHIBIT (a)(1)(i)
The Topiary Fund for Benefit Plan Investors (BPI) LLC
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If you do not want to sell your limited liability company interests at this
time, please disregard this notice. This is simply a notification of the
Fund's tender offer.
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June 23, 2005
Dear Investor in
The Topiary Fund for Benefit Plan Investors (BPI) LLC:
We are writing to inform you of important dates related to
the repurchase offer relating to The Topiary Fund for Benefit Plan Investors
(BPI) LLC (the "Fund"). If you are not interested in selling all or a portion
of your limited liability company interests in the Fund ("Interests") at this
time, please disregard this notice and take no action.
The repurchase offer period will begin on June 23, 2005 and
end on July 27, 2005 (the "Repurchase Request Deadline"). For Members
tendering all of their Interests in the Fund (and which are all accepted for
repurchase by the Fund), the value of their Interests for purposes of
calculating repurchase price will be determined as of September 30, 2005 (the
"Full Repurchase Valuation Date"). Members tendering Interests for repurchase
will be given a promissory note no later than August 3, 2005 entitling them to
payment for their tendered Interests. For both Members making full or partial
tenders of their Interests, payment will either be made within thirty (30)
days of the Full Repurchase Valuation Date, or ten business days after The
Topiary Master Fund for Benefit Plan Investors (BPI) LLC, in which
substantially all of the Fund's assets are invested, has received from the
Investment Funds in which it invests, 90% of the amount needed to fund the
repurchase of Interests, whichever is later. The purpose of the tender offer
is to provide some liquidity to investors who hold Interests in the Fund.
Interests can be redeemed by means of a tender offer only during one of the
Fund's announced repurchase offers.
Should you wish to sell all or a portion of your Interests
in the Fund during this tender offer period, please complete and return the
enclosed Letter of Transmittal to PFPC Inc. in the enclosed postage-paid
envelope. If you do not wish to sell any of your Interests, simply disregard
this notice. No action is required if you do not wish to redeem at this time.
All requests to tender Interests must be received by the
Fund's Administrator, PFPC Inc., either by mail or by fax (if by fax, please
deliver an original, executed copy promptly thereafter) in good order by July
27, 2005. If you elect to tender, it is your responsibility to confirm receipt
of the Letter of Transmittal with PFPC Inc. by calling the number below.
If you have any questions, please refer to the attached
Offer to Repurchase document, which contains additional important information
about the repurchase offer, or call your Financial Advisor or PFPC Inc. at
(302) 791-2810.
Sincerely,
The Topiary Fund for Benefit Plan Investors (BPI) LLC
EXHIBIT (a)(1)(ii)
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
25 DeForest Avenue
Summit, New Jersey 07901
OFFER TO REPURCHASE $9,383,399 (APPROXIMATELY 15% OF THE NET ASSET VALUE
OF THE MASTER FUND ESTIMATED AS OF JUNE 30, 2005)
OF LIMITED LIABILITY COMPANY INTERESTS
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 27, 2005,
UNLESS THE OFFER IS EXTENDED
SUMMARY TERM SHEET
o WHAT IS THE BACKGROUND AND PURPOSE OF THE REPURCHASE OFFER? The purpose
of the Repurchase Offer is to provide limited liquidity to Members who
hold Interests in the Fund. The Fund invests substantially all of its
assets in The Topiary Offshore Fund for Benefit Plan Investors (BPI)
LDC, a Cayman Islands limited duration company (the "Offshore Fund"),
which in turn invests substantially all of its assets in The Topiary
Master Fund for Benefit Plan Investors (BPI) LLC (the "Master Fund"), a
separate closed-end, non-diversified, management investment company
with the same investment objectives as the Fund and the Offshore Fund.
This structure is sometimes called a "master/feeder" structure. The
Fund has been advised by the Master Fund that the Master Fund is making
a concurrent tender offer to the Offshore Fund to repurchase interests
in the Master Fund at least equivalent in value to the value of the
Interests that the Fund is offering to repurchase. The Offshore Fund
will then distribute the proceeds of such repurchases to the Fund.
The repurchase of Interests pursuant to the Repurchase Offer will have
the effect of decreasing the net assets of the Fund and increasing the
proportionate interest in the Fund of Members who do not tender
Interests. A reduction in the net assets of the Fund could limit the
Master Fund's, and in turn the Fund's, access to certain investment
opportunities, cause the Fund, through the Master Fund, to sell assets
it would not have sold otherwise (including public securities), or
result in Members who do not tender Interests bearing higher costs to
the extent that certain expenses borne by the Fund are relatively fixed
and may not decrease if assets decline.
o WHAT ARE THE TERMS OF THE REPURCHASE OFFER? We will repurchase up to
$9,383,399 (approximately 15% of the net asset value of the Master Fund
estimated as of June 30, 2005) of limited liability company interests.
If the offer is oversubscribed, we may repurchase, in our sole
discretion, all or only a pro-rata portion of the Interests you tender.
This offer will remain open until 12:00 midnight, Eastern Time,
Wednesday, July 27, 2005, or, if the Repurchase Offer is extended, such
time and date as the Fund designates in an amended notice to Members
("Repurchase Request Deadline"). For a Member who tenders all of its
Interests in the Fund (and which are all accepted for repurchase by the
Fund), Interests will be valued for the purposes of determining their
repurchase price as of September 30, 2005 or, if the Repurchase Offer
is extended, as of a date designated by the Fund in an amended notice
to Members (the "Full Repurchase Valuation Date"). Such Member will
receive the net asset value of its capital account determined as of the
Full Repurchase Valuation Date and based on the net asset value of the
Fund's assets (based on oral or written estimates of the value of the
Master Fund's investments).
You must determine whether to tender all or a portion of your Interests
prior to the Repurchase Request Deadline but, if you are tendering all
of your Interests in the Fund (and if all are accepted for repurchase
by the Fund), the net asset value at which the Fund will repurchase
your Interests will not be determined until the Full Repurchase
Valuation Date. The net asset value of the Fund can fluctuate and may
fluctuate between the date you submit your repurchase request and the
Repurchase Request Deadline and the Full Repurchase Valuation Date. The
net asset value of the Fund on the Repurchase Request Deadline and the
Full Repurchase Valuation Date could be higher or lower than on the
date you submit a Repurchase Request.
If you would like to obtain the most recently calculated net asset
value of the Fund or your Interests, you may contact PFPC Inc., at the
phone number or address listed above, Monday through Friday, except
holidays, during normal business hours of 9:00 a.m. to 5:00 p.m.
(Eastern Time).
Members who tender Interests may bear a share of any withdrawal charge
imposed on the Fund by any Investment Fund from which the Fund, through
the Master Fund, withdraws in order to meet tender requests.
o WHAT IS THE AMOUNT OF EACH MEMBER'S TENDER? If you tender a portion of
your Interests in the Fund, you must leave an amount equal to at least
$25,000 (the "Required Minimum Balance") in the Fund. The Fund reserves
the right to reduce the amount of Interests repurchased from you so
that the Required Minimum Balance is maintained.
o WHAT IS THE PROCEDURE FOR TENDERS? If you would like us to repurchase
all or a portion of your Interests in the Fund, you should mail or fax
a Letter of Transmittal, enclosed with our offer, to PFPC Inc. at the
address/fax number listed on page 2 of this Offer to Repurchase, so
that it is received before 12:00 midnight, July 27, 2005. If you choose
to fax the Letter of Transmittal, you should mail the original Letter
of Transmittal to PFPC Inc. promptly after you fax it (although the
original does not have to be received before 12:00 midnight, July 27,
2005). Of course, the net asset value of Interests in the Fund is
likely to change between May 31, 2005 (the last time the Fund's net
asset value was calculated), June 30, 2005 (the next time it will be
calculated), and September 30, 2005, when the net asset value of the
capital accounts of Members tendering all of their Interests in the
Fund (and which are all accepted for repurchase by the Fund) will be
determined for purposes of calculating the repurchase price of such
Members' Interests. Generally, the net asset value of the Fund is
determined monthly.
If you elect to tender, it is your responsibility to confirm receipt of
the Letter of Transmittal with PFPC Inc. To assure good delivery,
please send the Letter of Transmittal to PFPC Inc. and not to your
financial advisor.
o DO MEMBERS HAVE ANY WITHDRAWAL RIGHTS? Following this summary is a
formal notice of our offer to repurchase your Interests in the Fund.
Our offer remains open to you until 12:00 midnight on July 27, 2005.
Until this time, you have the right to change your mind and withdraw
your Interests from consideration for repurchase. Withdrawn Interests
may be re-tendered, however, provided that such tenders are made before
the Repurchase Request Deadline by following the tender procedures
described herein.
o WHEN WILL PAYMENT BE MADE TO MEMBERS? Within five days of the
Repurchase Request Date, or no later than August 3, 2005, each Member
whose Interests or portion thereof have been accepted for repurchase
will be given a non-interest bearing, non-transferable promissory note
by the Fund entitling the Member to be paid an amount equal to 100% of
the unaudited net asset value of such Member's capital account (or
portion thereof) being repurchased. For both a Member making full or
partial tenders of its Interests, the note will entitle the Member to
be paid within thirty (30) days after the Full Repurchase Valuation
Date or, if the Master Fund has requested withdrawals of its capital
from the private investment funds in which the Master Fund invests
("Investment Funds") in order to fund the repurchase of Interests, ten
business days after the Master Fund has received at least 90% of the
aggregate amount withdrawn by the Master Fund from such Investment
Funds, whichever is the later (either such date, a "Payment Date"). We
will pay you from one or more of the following sources: cash on hand,
proceeds from the redemption of interests in the Investment Funds, or
borrowings. Payment may be delayed if it is determined that the Master
Fund redeem its interests in Investment Funds to make such payments,
but has experienced unusual delays in receiving payments from the
Investment Funds. None of the Fund, the Master Fund, the Adviser or
Directors has determined at this time to borrow funds to repurchase
Interests in connection with the Repurchase Offer. However, depending
on the dollar amount of Interests tendered and prevailing general
economic and market conditions, the Fund, in its sole discretion, may
decide to borrow money to fund all or a portion of the repurchase
price.
2
o WHAT ARE THE MOST SIGNIFICANT CONDITIONS OF THE REPURCHASE OFFER?
Please note that just as you have the right to withdraw your Interests,
we have the right to cancel, amend, suspend or postpone this offer at
any time before 12:00 midnight, July 27, 2005. Also realize that
although the tender offer expires on 12:00 midnight, July 27, 2005, if
you tender all of your Interests (and if all are accepted for
repurchase by the Fund), you remain an investor in the Fund until
September 30, 2005 when the net asset value of your Interests is
calculated for purposes of determining their repurchase price.
o BACKGROUND INFORMATION ABOUT THE FUND. The Fund is registered under the
1940 Act as a closed-end, non-diversified, management investment
company and is organized as a Delaware limited liability company. The
Fund's address is 25 DeForest Avenue, Summit, New Jersey 07901, and the
Fund's telephone number is, c/o Scudder Distributors Inc., (888)
262-0695.
o WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF TENDERING INTERESTS? If
you elect to tender all of your Interests in the Fund (and if we accept
all of your Interests), you generally will recognize capital gain or
loss to the extent of the difference between the proceeds you receive
and your adjusted tax basis in your Interests. This capital gain or
loss will be short-term or long-term depending upon your holding period
for your Interests at the time gain or loss is recognized. Your
long-term capital gain may be reduced as a result of the special
allocations of short-term capital gains that the Fund intends to make
to all Members whose tender of Interests is accepted. Your short-term
capital loss may be reduced as a result of the special allocations of
long-term capital loss that the Fund intends to make to all Members
whose tender of Interests is accepted. You will recognize ordinary
income to the extent your allocable share of the Fund's "unrealized
receivables" exceeds your basis in such unrealized receivables, as
determined pursuant to the Code and Treasury Regulations. If you tender
less than all of your Interests to us for repurchase, you will
recognize gain (but not loss) in a similar manner, but only to the
extent that the amount of proceeds you receive exceeds your aggregate
adjusted tax basis in all of your Interests.
3
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
25 DeForest Avenue
Summit, New Jersey 07901
OFFER TO REPURCHASE $9,383,399 (APPROXIMATELY 15% OF THE NET ASSET VALUE
OF THE MASTER FUND ESTIMATED AS OF JUNE 30, 2005)
OF LIMITED LIABILITY COMPANY INTERESTS
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 27, 2005,
UNLESS THE OFFER IS EXTENDED
To the Investors of
The Topiary Fund for Benefit Plan Investors (BPI) LLC:
The Topiary Fund for Benefit Plan Investors (BPI) LLC, a
closed-end, non-diversified, management investment company organized as a
Delaware limited liability company (the "Fund"), is offering to repurchase on
the terms and conditions set forth in this offer to repurchase ("Offer to
Repurchase") and the related Letter of Transmittal (which together with the
Offer to Repurchase constitutes the "Repurchase Offer") $9,383,399
(approximately 15% of the net asset value of the Master Fund estimated as of
June 30, 2005) of limited liability interests in the Fund (the "Interests") or
portions thereof pursuant to tenders by investors. Members who tender all of
their Interests (and which are all accepted for repurchase by the Fund) will
be paid a repurchase price equal to the net asset value of their Interests as
of September 30, 2005, or, if the Repurchase Offer is extended, as of a date
designated by the Fund in an amended notice to Members (the "Full Repurchase
Valuation Date"). If the Fund elects to extend the tender period for any
reason, for the purpose of determining such repurchase price, the net asset
value of such Interests will be determined as of the close of business on the
last business day of the calendar quarter in which the tender offer actually
expires. This Repurchase Offer is being made to all investors of the Fund
("Members") and is not conditioned on any minimum amount of Interests being
tendered, but is subject to certain conditions described below. Interests in
the Fund are not traded on any established trading market and are subject to
strict restrictions on transferability pursuant to the Fund's Limited
Liability Company Operating Agreement, dated as of July 21, 2004 (the "LLC
Agreement").
Members should realize that the net asset value of the Fund
likely will change between May 31, 2005 (the last time the Fund's net asset
value was calculated), June 30, 2005 (the next time the Fund's net asset value
will be calculated) and September 30, 2005, when the value of the Interests of
Members making a full tender to the Fund will be determined for purposes of
calculating the repurchase price of such Interests. Members tendering all of
their Interests in the Fund should also note that although the Repurchase
Offer expires at 12:00 midnight, Eastern Time, Wednesday, July 27, 2005, or,
if the offer is extended, such time and date as the Fund designates in an
amended notice to Members ("Repurchase Request Deadline"), they remain Members
in the Fund until the Full Repurchase Valuation Date. Generally, the Fund
determines its net asset value monthly. Any tendering Members that wish to
obtain the most recently calculated net asset value of the Fund should contact
PFPC Inc., at the telephone number or address set forth below, Monday through
Friday, except holidays, during normal business hours of 9:00 a.m. to 5:00
p.m. (Eastern Time).
Members desiring to tender all or any portion of their
Interests in accordance with the terms of the Repurchase Offer should complete
and sign the attached Letter of Transmittal and mail or fax it to the Fund in
the manner set forth below.
IMPORTANT
None of the Fund, DB Investment Managers, Inc., the Fund's
investment adviser ("Adviser"); any affiliate of the Adviser; or any of the
directors of the Fund makes any recommendation to any Member as to whether to
tender or refrain from tendering Interests. Members must make their own
decisions whether to tender Interests, and if so, the portion of their
Interests to tender.
Because each Member's investment decision is a personal one
based on its financial circumstances, no person has been authorized to make
any recommendation on behalf of the Fund as to whether investors should tender
Interests pursuant to the Repurchase Offer. No person has been authorized to
give any information or to make any representations in connection with the
Repurchase Offer other than those contained herein or in the Letter of
Transmittal. If given or made, such recommendation and such information and
representations must not be relied on as having been authorized by the Fund.
This transaction has not been approved or disapproved by the
Securities and Exchange Commission nor has the Securities and Exchange
Commission or any state securities commission passed on the fairness or merits
of such transaction or on the accuracy or adequacy of the information
contained in this document. Any representation to the contrary is unlawful.
Questions and requests for assistance and requests for
additional copies of the Repurchase Offer may be directed to PFPC Inc., the
Fund's Administrator.
June 23, 2005
PFPC Inc.
P.O. Box 219
Claymont, Delaware 19703
Attention: The Topiary Fund for Benefit Plan Investors (BPI) LLC
Phone: (302) 791-2810
Fax: (302) 791-2790
2
TABLE OF CONTENTS
1. Background and Purpose of the Repurchase Offer........................4
2. Offer to Repurchase and Price.........................................4
3. Amount of Tender......................................................5
4. Procedure for Tenders.................................................5
5. Withdrawal Rights.....................................................6
6. Repurchases and Payment...............................................6
7. Certain Conditions of the Repurchase Offer............................7
8. Certain Information About the Fund....................................7
9. Certain Federal Income Tax Consequences...............................8
10. Miscellaneous.........................................................9
3
1. Background and Purpose of the Repurchase Offer. The purpose
of the Repurchase Offer is to provide limited liquidity to Members who hold
Interests in the Fund. The Fund's prospectus, dated September 14, 2004 (the
"Prospectus"), provides that the Fund may offer, from time to time, pursuant
to written tenders, to repurchase its outstanding Interests from Members, and
that the directors of the Fund ("Directors") have the discretion to determine
whether the Fund will offer to repurchase its outstanding Interests. The Board
expects that, subsequent to the offer to repurchase Interests from Members as
of September 30, 2005, the Fund will offer to repurchase Interests from
Members as of December 31, 2005 and thereafter twice a year, as of the last
business day of June and December. Because there is no secondary trading
market for Interests in the Fund and transfers of Interests are prohibited
without prior approval of the Fund, the Directors have determined, after
consideration of various matters, including, but not limited to, those set
forth in the Prospectus, that the Repurchase Offer is in the best interests of
Members of the Fund to provide some liquidity for Interests as contemplated in
the Prospectus. The Directors intend to consider, in March and September of
each year, the continued desirability of the Fund making offers to repurchase
Interests, but the Fund is not required to make any such offer.
The Fund invests substantially all of its assets in The Topiary
Offshore Fund for Benefit Plan Investors (BPI) LDC, a Cayman Islands limited
duration company (the "Offshore Fund"), which in turn invests substantially
all of its assets in The Topiary Master Fund for Benefit Plan Investors (BPI)
LLC (the "Master Fund"), a separate closed-end, non-diversified, management
investment company with the same investment objectives as the Fund and the
Offshore Fund. This structure is sometimes called a "master/feeder" structure.
The Fund has been advised by the Master Fund that the Master Fund is making a
concurrent tender offer to the Offshore Fund to repurchase interests in the
Master Fund at least equivalent in value to the value of the Interests that
the Fund is offering to repurchase. The Offshore Fund will then distribute the
proceeds of such repurchases to the Fund. The Fund cannot make a repurchase
offer larger than the repurchase offer made by the Master Fund.
The repurchase of Interests pursuant to the Repurchase Offer will
have the effect of decreasing the net assets of the Fund and increasing the
proportionate interest in the Fund of Members who do not tender Interests. A
reduction in the net assets of the Fund could limit the Master Fund's, and in
turn the Fund's, access to certain investment opportunities, cause the Master
Fund to sell assets it would not have sold otherwise (including public
securities), or result in Members who do not tender Interests bearing higher
costs to the extent that certain expenses borne by the Fund are relatively
fixed and may not decrease if assets decline. The effects of decreased Fund
size and increased proportionate Interests of Members who do not tender may be
reduced or eliminated to the extent that additional subscriptions for
Interests in the Fund are made from time to time.
Interests that are tendered to the Fund in connection with this
Repurchase Offer will be retired. The Fund may issue Interests to "Eligible
Investors," as that term is defined in the Prospectus, from time to time. The
Fund currently expects that it will continue to accept subscriptions for
Interests on a monthly basis.
2. Offer to Repurchase and Price. The Fund will repurchase,
upon the terms and subject to the conditions of the Repurchase Offer, up to
$9,383,399 (approximately 15% of the net asset value of the Master Fund
estimated as of June 30, 2005) of limited liability company interests that are
properly tendered by and not withdrawn (in accordance with Section 5 below)
before the Repurchase Request Deadline. The Fund reserves the right to extend,
amend or cancel the Repurchase Offer, or postpone the acceptance of Interests
tendered pursuant to the Repurchase Offer, as described in Sections 3 and 7
below. The amount due to any Member who tenders all of its Interests (and
which are all accepted for repurchase by the Fund) will be equal to the value
of such Member's capital account based on the Fund's net asset value as of
September 30, 2005 or, if the Repurchase Offer is extended, as of a date
designated by the Fund in an amended notice to Members (the "Full Repurchase
Valuation Date"), after giving effect to all allocations, including, but not
limited to, withholding tax, to be made to the Member's capital account as of
such date. The Fund reserves the right to adjust the Full Repurchase Valuation
Date to correspond with any extension of the Repurchase Offer. The Fund's net
asset value as of September 30, 2005 will be based in part on oral or written
estimates of the value of the Master Fund's investments in the private funds
in which the Master Fund invests ("Investment Funds"). Therefore, repurchase
payments to Members tendering all of their Interests in the Fund may not
reflect final net asset values for the Full Repurchase Valuation Date
calculated by the Investment Funds; however, the Fund will generally not make
any adjustments for final valuations from the Master Fund based on adjustments
received from the Investment Funds, and the withdrawing Member (if such
valuations are adjusted
4
upwards) or the remaining Members (if such valuations are adjusted downwards)
will bear the risk of change of any such valuations.
As of the close of business on April 30, 2005, there was
approximately $33,580,311.49 outstanding in capital of the Fund and
$59,122,693 outstanding in capital of the Master Fund. Generally, the Fund and
the Master Fund determine their net asset values monthly. Members may obtain
the most recently calculated information regarding the net asset value of the
Fund and their Interests by contacting PFPC Inc., at the telephone number or
address set forth on page 2, Monday through Friday, except holidays, during
normal business hours of 9:00 a.m. to 5:00 p.m. (Eastern Time). Of course, the
net asset value of Interests in the Fund likely will change between May 31,
2005 (the last time net asset value was calculated), June 30, 2005 (the next
time it will be calculated), and September 30, 2005, the Full Repurchase
Valuation Date.
3. Amount of Tender. Members may tender all their Interests or
a portion of their Interests in the Fund. The Repurchase Offer is being made
to all Members of the Fund and is not conditioned on any minimum amount of
Interests being tendered. If you tender a portion of your Interests, you must
leave an amount equal to at least $25,000 in the Fund (the "Required Minimum
Balance"). The Fund reserves the right to reduce the amount of Interests
repurchased from you so that the Required Minimum Balance is maintained.
If the amount of the Interests that are properly tendered pursuant to
the Repurchase Offer, and not withdrawn pursuant to Section 5 below, is less
than or equal to $9,383,399 (or such greater amount as the Fund may elect to
repurchase pursuant to the Repurchase Offer), the Fund will, on the terms and
subject to the conditions of the Repurchase Offer, repurchase all of the
Interests so tendered unless the Fund elects to cancel or amend the Repurchase
Offer, or postpone acceptance of tenders made pursuant to the Repurchase
Offer, as provided in Section 7 below. If more than $9,383,399 are duly
tendered to the Fund before the Repurchase Request Deadline and not withdrawn
pursuant to Section 5 below, the Fund will, in its sole discretion, either (a)
purchase an additional amount of Interests not to exceed 2% of the net asset
value of the Fund as of the Repurchase Request Deadline in conformity with
Rule 13e-4(f)(1)(ii) under the Securities Exchange Act of 1934; (b) extend the
Repurchase Offer, if necessary, and increase the amount of Interests that the
Fund is offering to repurchase, to an amount it believes sufficient to
accommodate the excess Interests tendered as well as any Interests tendered
during the extended Repurchase Offer; or (c) accept Interests tendered on or
before the Repurchase Request Deadline for payment on a pro-rata basis based
on the aggregate net asset value of tendered Interests. The Repurchase Offer
may be extended, amended or canceled in various other circumstances described
in Section 7 below.
4. Procedure for Tenders. Members wishing to tender Interests
pursuant to the Repurchase Offer should mail a completed and executed Letter
of Transmittal to PFPC Inc., to the attention of The Topiary Fund for Benefit
Plan Investors (BPI) LLC, at the address set forth on page 2, or fax a
completed and executed Letter of Transmittal to PFPC Inc., also to the
attention of The Topiary Fund for Benefit Plan Investors (BPI) LLC, at the fax
numbers set forth on page 2. The completed and executed Letter of Transmittal
must be received by PFPC Inc., either by mail or by fax, no later than the
Repurchase Request Deadline. The Fund recommends that all documents be
submitted to PFPC Inc. by certified mail, return receipt requested, or by
facsimile transmission. An investor choosing to fax a Letter of Transmittal to
PFPC Inc. must also mail the original completed and executed Letter of
Transmittal to PFPC Inc. promptly thereafter. If a Member elects to tender, it
is the tendering Member's responsibility to confirm receipt of the Letter of
Transmittal or other document with PFPC Inc.
Members wishing to confirm receipt of a Letter of Transmittal may
contact PFPC Inc. at the address and phone number set forth on page 2. The
method of delivery of any documents is at the election and complete risk of
the Member tendering its Interests in the Fund, including, but not limited to,
the failure of PFPC Inc. to receive any Letter of Transmittal or other
document. All questions as to the validity, form, eligibility (including time
of receipt) and acceptance of tenders will be determined by the Fund, in its
sole discretion, and such determination shall be final and binding. The Fund
reserves the absolute right to reject any or all tenders determined by it not
to be in appropriate form or the acceptance of or payment for which would, in
the opinion of counsel for the Fund, be unlawful. The Fund also reserves the
absolute right to waive any of the conditions of the Repurchase Offer or any
defect in any tender with respect to any particular Member, and the Fund's
interpretation of the terms and conditions of the Repurchase Offer will be
final and binding. Unless waived, any defects or irregularities in connection
with tenders must be cured within such time as the Fund shall determine.
Tenders will not be deemed to have been made until the defects or
irregularities have been cured or waived. Neither the Fund, the Adviser nor
the Directors shall
5
be obligated to give notice of any defects or irregularities in tenders, nor
shall any of them incur any liability for failure to give such notice.
5. Withdrawal Rights. Any Member tendering Interests pursuant
to this Repurchase Offer may withdraw its tender at any time on or before the
Repurchase Request Deadline. To be effective, any notice of withdrawal must be
timely received by PFPC Inc. at the address or fax numbers set forth on page
2. A form to use to give notice of withdrawal is enclosed herewith. All
questions as to the form and validity (including time of receipt) of notices
of withdrawal will be determined by the Fund, in its sole discretion, and such
determination shall be final and binding. Interests properly withdrawn shall
not thereafter be deemed to be tendered for purposes of the Repurchase Offer.
However, withdrawn Interests may be tendered prior to the Repurchase Request
Deadline by following the procedures described in Section 4.
6. Repurchases and Payment. For purposes of the Repurchase
Offer, the Fund will be deemed to have accepted Interests that are tendered if
and when it gives oral or written notice to the tendering Member of its
election to repurchase such Interests. As stated in Section 2 above, the
repurchase price paid to Members who tender all of their Interests in the Fund
(and which are all accepted for repurchase by the Fund) will be the net asset
value thereof as of the Full Repurchase Valuation Date. If the Fund elects to
extend the tender period for any reason, the net asset value of such
Interests, for the purpose of determining their repurchase price, will be
determined as of the close of business on the last business day of the
calendar quarter in which the tender offer actually expires.
Within five days of the Repurchase Request Date, or no later than
August 3, 2005, each Member whose Interests or portion thereof has been
accepted for repurchase will be given a non-interest bearing, non-transferable
promissory note by the Fund entitling the Member to be paid an amount equal to
100% of the unaudited net asset value such Member's capital account (or
portion thereof) being repurchased. For Members who tender all of their
Interests in the Fund (and which are all accepted for repurchase by the Fund),
the repurchase price for such Interests will be determined as of the Full
Repurchase Valuation Date (after giving effect to all allocations to be made
as of that date to such Member's capital account).
For both a Member making full or partial tenders of their Interests,
the note will entitle the Member to be paid within thirty (30) days after the
Full Repurchase Valuation Deadline, or, if the Master Fund has requested
withdrawals of its capital from any Investment Funds in order to fund the
repurchase of Interests, ten business days after the Master Fund has received
at least 90% of the aggregate amount withdrawn by the Master Fund from such
Investment Funds, whichever is later (either such date, a "Payment Date").
Notwithstanding the foregoing, if a Member has requested the repurchase of 90%
or more of the Interests held by such Member, such Member shall receive (i)
cash or a non-transferable promissory note, which need not bear interest, in
an amount equal to 90% of the estimated unaudited net asset value of such
Member's capital account (or portion thereof) being repurchased, determined,
only with respect to a Member making a full tender of its Interests, as of the
Full Repurchase Valuation Date (after giving effect to all allocations to be
made as of that date to such Member's capital account) (the "Initial
Payment"), which will be paid on or prior to the Payment Date; and (ii) a
promissory note entitling the holder thereof to the balance of the proceeds,
to be paid following the later of (x) 90 days following the applicable Full
Repurchase Valuation Date (for both a Member making a full or partial tender
of its Interests), so as to effectuate the orderly liquidation of enough
Investment Funds in which the Master Fund is invested or otherwise, or (y)
such longer period as the Board of Directors in its discretion deems necessary
to protect the interests of the remaining Members. Payment for tendered
Interests that are accepted for repurchase will generally be made via wire
transfer in accordance with the instructions provided in the Letter of
Transmittal.
The Fund expects that payment for Interests acquired pursuant to the
Repurchase Offer will be derived from the following sources: cash on hand,
proceeds from the redemption of interests in the Investment Funds in which the
Master Fund invests, or borrowings. Payment may be delayed if it is determined
to redeem the Master Fund's interests in Investment Funds to make such
payments, but has experienced unusual delays in receiving payments from the
Investment Funds. None of the Fund, the Master Fund, the Adviser or Directors
has determined at this time to borrow funds to repurchase Interests in
connection with the Repurchase Offer. However, depending on the dollar amount
of Interests tendered and prevailing general economic and market conditions,
the Fund, in its sole discretion, may decide to borrow money to fund all or a
portion of the repurchase price.
6
The Board in its discretion may pay repurchase proceeds, in whole or
in part, in securities of equivalent value. The Fund does not expect that it
will distribute securities as payment for repurchased Interests except in
unusual circumstances, such as in the unlikely event that (i) making a cash
payment would result in a material adverse effect on the Fund or on Members
not requesting that their Interests be repurchased or (ii) that the Master
Fund has received distributions from Investment Funds in the form of
securities that are transferable to the Members. In the event that the Fund
makes such a distribution of securities as payment for Interests, Members will
bear any risks of the distributed securities and may be required to pay a
brokerage commission or other costs in order to dispose of such securities.
Members who tender Interests may bear a share of any withdrawal
charge imposed on the Master Fund by any Investment Fund from which the Master
Fund withdraws in order to meet tender requests.
7. Certain Conditions of the Repurchase Offer. The Fund
reserves the right, at any time and from time to time, to extend the period of
time during which the Repurchase Offer is pending by notifying Members of such
extension. If the Fund elects to extend the tender period for any reason, for
the purpose of determining the repurchase price paid to Members tendering all
of their Interests in the Fund (and which are all accepted for repurchase by
the Fund), the net asset value of such Interests will be determined as of the
close of business on the last business day of the calendar quarter in which
the tender offer actually expires. During any such extension, all Interests
previously tendered and not withdrawn will remain subject to the Repurchase
Offer. The Fund also reserves the right, at any time and from time to time, up
to and including acceptance of tenders pursuant to the Repurchase Offer, in
the circumstances set forth in the following paragraph, to: (a) cancel the
Repurchase Offer and in the event of such cancellation, not to repurchase or
pay for any Interests tendered pursuant to the Repurchase Offer; (b) suspend
or amend the Repurchase Offer; or (c) postpone the acceptance of Interests. If
the Fund determines to amend the Repurchase Offer or to postpone the
acceptance of Interests tendered, it will, to the extent necessary, extend the
period of time during which the Repurchase Offer is open as provided above and
will promptly notify Members.
The Fund may cancel, suspend or amend the Repurchase Offer, or
postpone the acceptance of tenders made pursuant to the Repurchase Offer, by
vote of a majority of the Board, including a majority of the Directors who are
not "interested persons," within the meaning of the Investment Company Act of
1940, as amended ("Independent Directors"), of the Fund, including but not
limited to: (a) for any period during which an emergency exists as a result of
which it is not reasonably practicable for the Master Fund to dispose of
securities it owns or to determine the value of the Fund's and/or the Master
Fund's net assets; (b) for any other periods that the SEC permits by order for
the protection of Members; or (c) under such other unusual circumstances as
the Board deems advisable for the benefit of the Fund and its Members. For
example, the Fund may cancel, suspend or amend the Repurchase Offer, or
postpone the acceptance of tenders made pursuant to the Repurchase Offer, if
(a) the Master Fund would not be able to dispose of securities it owns in a
manner that is orderly and consistent with the Fund's and the Master Fund's
investment objectives and policies in order for the Fund to repurchase
Interests tendered pursuant to the Repurchase Offer; or (b) there is any (i)
legal action or proceeding instituted or threatened challenging the Repurchase
Offer or that otherwise would have a material adverse affect on the Fund
and/or the Master Fund, (ii) declaration of a banking moratorium by Federal or
state authorities or any suspension of payment by banks in the United States
or New York State that is material to the Fund and/or the Master Fund, (iii)
limitation imposed by Federal or state authorities on the extension of credit
by lending institutions, (iv) suspension of trading on any organized exchange
or over-the-counter market where the Master Fund has a material investment,
(v) commencement of war, armed hostilities or other international or national
calamity directly or indirectly involving the United States that is material
to the Fund and/or the Master Fund, or (vi) material decrease in the estimated
net asset value of the Fund and the Master Fund from the net asset value of
the Fund and the Master Fund as of the commencement of the Repurchase Offer.
However, there can be no assurance that the Fund will exercise its right to
extend, amend or cancel the Repurchase Offer or to postpone acceptance of
tenders pursuant to the Repurchase Offer.
8. Certain Information About the Fund. The Fund is registered
under the 1940 Act as a closed-end, non-diversified, management investment
company and is organized as a Delaware limited liability company. The Fund's
address is 25 DeForest Avenue, Summit, New Jersey 07901, and the Fund's
telephone number is, c/o Scudder Distributors Inc., (888) 262-0695. Interests
in the Fund are not traded on any established trading market and are subject
to strict restrictions on transferability pursuant to the LLC Agreement. The
Fund's Directors are
7
Nolan T. Altman, Louis S. Citron, Edward T. Tokar and Raymond C. Nolte. Their
address is c/o DB Absolute Return Strategies, 25 DeForest Avenue, Summit, New
Jersey 07901.
Neither the Fund nor the Master Fund has any plans or proposals that
relate to or would result in: (a) the acquisition by any person of further
Interests in the Fund (other than the Fund's intention to accept subscriptions
for Interests from time to time in the discretion of the Fund) or the
disposition of Interests, other than as disclosed in the Prospectus; (b) an
extraordinary transaction, such as a merger, reorganization or liquidation,
involving the Fund and/or the Master Fund; (c) any material change in the
present distribution policy or indebtedness or capitalization of the Fund
and/or the Master Fund; (d) any change in the identity of the Adviser or
Directors of the Fund and the Master Fund, or in the management of the Fund
and the Master Fund including, but not limited to, any plans or proposals to
change the number or the term of the Directors of the Fund and the Master
Fund, to fill any existing vacancy for a Director of the Fund and the Master
Fund or to change any material term of the investment advisory arrangements
with the Adviser; (e) a sale or transfer of a material amount of assets of the
Fund and/or the Master Fund (other than as the Directors determine may be
necessary or appropriate to fund any portion of the repurchase price for
Interests acquired pursuant to this Repurchase Offer or in connection with the
ordinary portfolio transactions of the Master Fund ); (f) any other material
change in the Fund's and/or the Master Fund's structure or business, including
any plans or proposals to make any changes in its fundamental investment
policy for which a vote would be required by Section 13 of the 1940 Act; or
(g) any changes in the LLC Agreement or other actions that may impede the
acquisition of control of the Fund and/or the Master Fund by any person.
During the past 60 days, other than the monthly acceptance of
subscriptions for Interests and the offer to purchase Interests on March 24,
2005, no transactions involving the Interests were effected by the Fund, the
Adviser of the Fund, the Directors or any person controlling the Fund or
controlling the Adviser or any Directors of the Fund.
As of April 30, 2005, the Adviser, indirectly through an affiliate,
beneficially owned $25,846,461, or 43.7%, of the outstanding capital of the
Master Fund, and thereby may be deemed to have controlled the Master Fund, and
indirectly the Fund, as of that date. This ownership reflects such affiliate's
initial contribution of capital to the Master Fund of $25,000,000 prior to the
Interests in the Fund being publicly offered.
The Fund has been informed that, in addition to its tender of
$10,000,000 of Interests in the Master Fund, of which $8,309,069 was accepted
for repurchase by the Master Fund as of June 30, 2005, such affiliate of the
Adviser intends to tender $9,500,000 of Interests in the Master Fund in the
Master Fund's Repurchase Offer, or a pro rata portion thereof if
oversubscribed.
9. Certain Federal Income Tax Consequences. The following
discussion is a general summary of certain Federal income tax consequences to
Members that are subject to Federal income taxation of the repurchase of
Interests by the Fund from Members pursuant to the Repurchase Offer. Members
should consult their own tax advisers for a complete description of the tax
consequences to them of a repurchase of their Interests by the Fund pursuant
to the Repurchase Offer.
A Member who tenders all its Interests (and whose entire interest is
accepted) to the Fund for repurchase generally will recognize capital gain or
loss to the extent of the difference between the proceeds received by such
Member and such Member's adjusted tax basis in its Interests in the Fund. This
capital gain or loss will be short-term or long-term depending upon the
Member's holding period for its Interests at the time the gain or loss is
recognized. A tendering Member will recognize ordinary income to the extent
such Member's allocable share of the Fund's "unrealized receivables" exceeds
the Member's basis in such unrealized receivables, as determined pursuant to
the Treasury Regulations. A Member who tenders less than all its Interests to
the Fund for repurchase will recognize gain (but not loss) in a similar manner
only to the extent that the amount of the proceeds received exceeds such
Member's aggregate adjusted tax basis in all its Interests.
A Member's basis in its Interests is adjusted for income, gain or
loss allocated (for tax purposes) to such Member for periods until such Member
ceases to be a Member of the Fund. Pursuant to the authority granted to it
under the LLC Agreement, the Adviser intends to specially allocate items of
Fund capital gain, including short-term capital gain, to a withdrawing Member
to the extent its liquidating distribution would otherwise exceed its adjusted
tax basis in its Interests. Such a special allocation may result in the
withdrawing Member recognizing capital gain,
8
which may include short-term gain, in the Member's last taxable year in the
Fund, thereby potentially reducing the amount of any long-term capital gain
that, absent the special allocation, would otherwise have been recognized by
the withdrawing Member.
Pursuant to the authority granted to it under the LLC Agreement, the
Adviser intends to specially allocate items of Fund capital loss, including
long-term capital loss, to a withdrawing Member to the extent its liquidating
distribution would otherwise be less than its adjusted tax basis in its
Interests. Such a special allocation may result in the withdrawing Member
recognizing capital loss, which may include long-term capital loss, in the
Member's last taxable year in the Fund, thereby potentially reducing the
amount of any short-term capital loss that, absent the special allocation,
would otherwise have been recognized by the withdrawing Member.
10. Miscellaneous. The Repurchase Offer is not being made to,
nor will tenders be accepted from, Members in any jurisdiction in which the
Repurchase Offer or its acceptance would not comply with the securities or
Blue Sky laws of such jurisdiction. The Fund reserves the right to exclude
Members from the Repurchase Offer in any jurisdiction in which it is asserted
that the Repurchase Offer cannot lawfully be made. The Fund believes such
exclusion is permissible under applicable laws and regulations, provided the
Fund makes a good faith effort to comply with any state law deemed applicable
to the Repurchase Offer.
The financial information of each of the Fund and the Master Fund for
the period from October 1, 2004 (commencement of operations) through March 31,
2005 is incorporated by reference to each of the Fund's and the Master Fund's
audited financial statements, both of which were previously filed on EDGAR on
Form N-CSR on June 6, 2005 and which were prepared and furnished to members
pursuant to Rule 30d-l under the 1940 Act and filed with the Securities and
Exchange Commission pursuant to Rule 30b2-1 under the 1940 Act.
The Fund has filed an Issuer Tender Offer Statement on Schedule TO
with the Securities and Exchange Commission, which includes certain
information relating to the Repurchase Offer summarized herein. A free copy of
such statement may be obtained from the Fund by contacting PFPC Inc. at the
address and phone number set forth on page 2 or from the Securities and
Exchange Commission's internet web site, http://www.sec.gov. For a fee, a copy
may be obtained from the public reference office of the Securities and
Exchange Commission at 100 F Street, N.E., Washington, DC 20549.
9
EXHIBIT (a)(1)(iii)
LETTER OF TRANSMITTAL
to be used to Tender Limited Liability Company Interests
in
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
Pursuant to the Offer to Repurchase
Dated June 23, 2005
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT, AND THIS LETTER OF TRANSMITTAL MUST BE
RECEIVED BY PFPC INC. EITHER BY MAIL OR BY
FAX BY, 12:00 MIDNIGHT, EASTERN TIME, ON
WEDNESDAY, JULY 27, 2005, UNLESS THE
OFFER IS EXTENDED.
Complete This Letter Of Transmittal and Fax
or Mail in the Enclosed Postage-Paid Envelope To:
PFPC Inc.
P.O. Box 219
Claymont, Delaware 19703
Attention: The Topiary Fund for Benefit Plan Investors (BPI) LLC
For additional information:
Phone: (302) 791-2810
Fax: (302) 791-2790
To Assure Good Delivery, please send this Letter of Transmittal
to PFPC Inc. and not to your Financial Advisor.
If you do not wish to sell all or a portion of your Interests in the Fund,
please disregard this Letter of Transmittal.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to The Topiary Fund for Benefit Plan
Investors (BPI) LLC, a closed-end, non-diversified, management investment
company organized under the laws of the State of Delaware (the "Fund"), the
limited liability company interests in the Fund or portion thereof held by the
undersigned ("Interests"), described and specified below, on the terms and
conditions set forth in the offer to repurchase, dated June 23, 2005 ("Offer
to Repurchase"), receipt of which is hereby acknowledged, and in this Letter
of Transmittal (which together constituted the "Repurchase Offer"). The tender
and this Letter of Transmittal are subject to all the terms and conditions set
forth in the Offer to Repurchase, including, but not limited to, the absolute
right of the Fund to reject any and all tenders determined by it, in its sole
discretion, not to be in the appropriate form.
The undersigned hereby sells to the Fund Interests tendered hereby
pursuant to the Repurchase Offer. The undersigned hereby warrants that the
undersigned has full authority to Interests tendered hereby and that the Fund
will acquire good title thereto, free and clear of all liens, charges,
encumbrances, conditional sales agreements or other obligations relating to
the sale thereof, and not subject to any adverse claim, when and to the extent
the same are repurchased by it. Upon request, the undersigned will execute and
deliver any additional documents necessary to complete the sale in accordance
with the terms of the Repurchase Offer.
The undersigned recognizes that under certain circumstances set forth
in the Repurchase Offer, the Fund may not be required to repurchase any of the
Interests tendered hereby. The undersigned recognizes that, if the Repurchase
Offer is oversubscribed, not all of the undersigned's Interests will be
repurchased.
The undersigned acknowledges that the method of delivery of any
documents is at the election and the complete risk of the undersigned,
including, but not limited to, the failure of the Fund's administrator, PFPC
Inc., to receive any Letter of Transmittal or other document.
Payment for tendered Interests that are accepted for repurchase will
generally be made via wire transfer. For Members who tender all of their
Interests (and which are all accepted for repurchase by the Fund), the amount
of the payment will be based on the Fund's net asset value, the calculation of
which is described in the Fund's Prospectus under the heading "Net Asset
Valuation," as of September 30, 2005, or, if the Repurchase Offer is extended,
as of a date designated by the Fund in an amended notice to Members.
All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned and the obligation of the
undersigned hereunder shall be binding on the heirs, personal representatives,
successors and assigns of the undersigned. Except as stated in Section 5 of
the Offer to Repurchase, this tender is irrevocable.
If you do not want to sell your limited liability company interests
at this time, please disregard this notice. This is simply notification of the
Fund's tender offer. If you choose to tender, you are responsible for
confirming that PFPC Inc. has received your documents. To assure good
delivery, please send this Letter of Transmittal to PFPC Inc. and not to your
Financial Advisor.
Please fax or mail (the following
pages only) in the enclosed
postage-paid envelope (if by mail)
as instructed on the following
pages.
2
Part 1. Name:
Name of Member: ________________________________|
Phone #__|__|__| |__|__|__| |__|__|__|__|
Part 2. Amount of Limited Liability Company Interests to be Tendered:
|__| Entire amount of limited liability company interests in the Fund
(pro-rated, if oversubscribed).
|__| Partial amount of limited liability company interests expressed as a
specific dollar value, $_____________________ subject to maintenance of a
minimum limited liability company interest equal to $25,000 (the "Required
Minimum Balance"). The undersigned understands that if the undersigned tenders
an amount that would cause the undersigned's capital account balance to fall
below the Required Minimum Balance, the Fund reserves the right to reduce the
amount to be repurchased from the undersigned so that the Required Minimum
Balance is maintained.
Part 3. Wire Transfer Instructions
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Bank:
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Address:
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(city) (state)
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ABA #:
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Account Name:
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Account #:
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For the Account of:
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Part 4. Signature(s):
------------------------------------------------------------------------------
FOR INDIVIDUAL MEMBERS AND JOINT TENANTS:
----------------------------------------
------------------------------------------------------------------------------
Signature: __________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
Print Name of Member: __________________________________
------------------------------------------------------------------------------
Joint Tenant Signature:
(If joint tenants, both must sign.) __________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name of Joint Tenant: __________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
3
------------------------------------------------------------------------------
FOR OTHER MEMBERS:
------------------
------------------------------------------------------------------------------
Print Name of Member: _________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Signature: _________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name of Signatory and Title: _________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Co-Signatory if necessary _________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name and Title of Co-Signatory: ________________________________
------------------------------------------------------------------------------
Please fax or mail these pages to:
PFPC Inc.
P.O. Box 219
Claymont, Delaware 19703
Attention: The Topiary Fund for Benefit Plan
Investors (BPI) LLC
For additional information:
Phone: (302) 791-2810
Fax: (302) 791-2790
4
EXHIBIT (a)(1)(iv)
NOTICE OF WITHDRAWAL OF TENDER
To be used to Withdraw Limited Liability Company Interests
in
THE TOPIARY FUND FOR BENEFIT PLAN INVESTORS (BPI) LLC
Tendered Pursuant to the Offer to Repurchase
Dated June 23, 2005
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT, AND THIS NOTICE OF WITHDRAWAL MUST BE
RECEIVED BY PFPC INC. EITHER BY MAIL OR BY
FAX BY, 12:00 MIDNIGHT, EASTERN TIME, ON
WEDNESDAY, JULY 27, 2005, UNLESS THE
OFFER IS EXTENDED.
Complete this Notice of Withdrawal and Fax or Mail to:
PFPC Inc.
P.O. Box 219
Claymont, Delaware 19703
Attn: The Topiary Fund for Benefit Plan Investors (BPI) LLC
For additional information:
Phone: (302) 791-2810
Fax: (302) 791-2790
To assure good delivery, please send this Notice of Withdrawal
to PFPC Inc. and not to your Financial Advisor.
------------------------------------------------------------------------------
You are responsible for confirming that this Notice is received by PFPC Inc.
To assure good delivery, please send this page to PFPC Inc. and not to your
Financial Advisor.
------------------------------------------------------------------------------
Ladies and Gentlemen:
Please withdraw the tender previously submitted by the undersigned in a Letter
of Transmittal.
------------------------------------------------------------------------------
FOR INDIVIDUAL MEMBERS AND JOINT TENANTS:
----------------------------------------
------------------------------------------------------------------------------
Signature: __________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
Print Name of Member: __________________________________
------------------------------------------------------------------------------
Joint Tenant Signature:
(If joint tenants, both must sign.) __________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name of Joint Tenant: __________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
FOR OTHER MEMBERS:
------------------
------------------------------------------------------------------------------
Signature: _________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
Print Name of Member: _________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name of Signatory and Title: _________________________________
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Co-Signatory if necessary _________________________________
(Signature of Owner(s) Exactly as
Appeared on Member
Certification)/Date
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Print Name and Title of Co-Signatory: ________________________________
------------------------------------------------------------------------------
EXHIBIT (a)(5)(iii)
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Issuer
Tender Offer Statement on Schedule TO of our report dated May 20, 2005,
relating to the financial statements and financial highlights which appear in
the March 31, 2005 Annual Report to Shareholders of The Topiary Fund for
Benefit Plan Investors (BPI) LLC, and of our report dated May 20, 2005,
relating to the financial statements and financial highlights which appear in
the March 31, 2005 Annual Report to Shareholders of The Topiary Master Fund
for Benefit Plan Investors (BPI) LLC, both of which are incorporated by
reference into the Issuer Tender Offer Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
June 23, 2005