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1
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PLAINTIFFS OPENING BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
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EXTRACTED KEY WORDS
LLC AGREEMENT PLAINTIFF BOOKS FUND INSPECTION ENCORE LIMITED LIABILITY COMPANY COURT DELAWARE DEFENDANT MEMBER PURSUANT PARTNERSHIP WILMINGTON FACTS SUMMARY JUDGMENT OPPORTUNITY FUND CONFIDENTIALITY PROVISION REASONABLE NOTICE RADIX STERLING FUND SAUDER AFF MANAGING MEMBER INVESTMENT COMMON MEMBER ATTORNEYS LLC ACT PAINE WEBBER SCHWARTZBERG |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AUSTIN CAPITAL & RADIX STERLING
FUND, LTD.,
Plaintiff,
C.A. No. 17629
V.
ENCORE OPPORTUNITY FUND, L.L.C., a
Delaware limited liability company,
Defendant.
PLAINTIFF'S OPENING BRIEF IN SZJPPORT .
OF ITS MOTION FOR SUMMARY JUDGMENT --I .
PRICKETT, JONES & ELLIOTT
Bruce E. Jameson
Thomas A. Mullen
Paul A. Fiorava:nti, Jr.
1310 King Street
Wilmington, Delaware 19801
(302) 888-6500
Attorneys for Plaintiff Austin Capital &
Radix Sterling Fund, Ltd.
Dated: January 19, 2000
17142.1\106580v1
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2
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MOTION FOR EXPEDITED PROCEEDINGS AND SUMMARY HEARING
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EXTRACTED KEY WORDS
LLC AGREEMENT FUND MOTION EXPEDITION SCHEDULE BOOKS COURT ENCORE DELAWARE EXPEDITED PROCEEDINGS PURSUANT JUDGEMENT DEL RADIX STERLING LIMITED LIABILITY COMPANY LANGUAGE INSPECTION OPPORTUNITY FUND DEFENDANT PROMPT COMMON REDEMPTION NOTICE CHANCERY PLAINTIFFS CLAIMS COMPEL PARTNERS REASONS MEMBER EXPENSE |
7
IN THE COURT OF CHANCERY OF THE STATE OF &id&tiARE
IN AND FOR NEW CASTLE COUNTY : ,,
AUSTIN CAPITAL & RADIX STERLING
FUND, LTD.,
Plaintiff,
C.A. No. 17629
V.
ENCORE OPPORTUNITY FUND, L.L.C., a
Delaware limited liability company,
Defendant.
NOTICE OF MOTION FOR EXPEDITED PROCEEDINGS
AND TO SCHEDULE SUMMARY HEARING
TO: ENCORE OPPORTUNITY FUND, L.L.C.
Cl0 James P. Hughes, Jr.
Young Conaway Stargatt & Taylor
Rodney Square North
Wilmington, Delaware 19801
PLEASE TAKE NOTICE that plaintiff, Austin Capital & Radix Sterling Fund,
Ltd., will present the attached Motion for Expedited Proceedings at the earliest
convenience of the Court.
PRICKETT, JONES & ELLIOTT
laware 19801
(302) 888-6500
Attorneys for Plaintiff Austin Capital &
Radix Sterling Fund, Ltd.
Dated: January 12, 2000
17142.1\10586Ovl
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3
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ANSWER AND AFFIRMATIVE DEFENSES
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EXTRACTED KEY WORDS
DENIES PARAGRAPH ADMITS COURT AUSTIN ENCORE AFFIRMATIVE DEFENSE EXHIBIT COMPLAINT REFERS CORRECT STATEMENT PLAINTIFFS DEFENDANT LLC RELIEF MEMBER REQUESTS BUSINESS PROPER JUDGMENTS AWARDING YORK ESQUIRE DELAWARE ENCORE OPPORTUNITY FUND ATTORNEYS HEREBY AGREEMENT ALLEGATIONS OFPARAGRAPH |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AUSTIN CAPITAL & RADIX STERLING )
FUND, LTD., . .
; :
Plaintiff, >
V. t CA. No. 17629 NC
1
ENCORE OPPORTUNITY FUND, L.L.C., )
a Delaware limited liability company,
E
Defendant. >
ANSWER AND AFFIRMATIVE DEFENSES
Defendant Encore Opportunity Fund, L.L.C. ("Encore" or the "LLC"), by
and through its undersigned attorneys, hereby responds to and affirmatively defends the
complaint herein (the "Complaint") as follows:
1. Denies the allegations of Paragraph 1, except admits that Austin
Capital is a common member of the LLC, and that it is subject to the LLC Agreement.
2. Admits the allegations of Paragraph 2.
3. Admits the allegations of Paragraph 3.
4. Denies the allegations of Paragraph 4, except admits that Austin
Capital sent the November 11, 1999 letter attached as Exhibit A and refers the Court to
that letter for a true and correct statement of its terms.
5. Denies the allegations of Paragraph 5, except admits that Austin
Capital sent the November 12, 1999 letter attached as Exhibit I3 and refers the Court to
that letter for a true and correct statement of its terms.
WP3 : 446808 1 56492.1001
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4
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COMPLAINT TO INSPECT BOOKS AND RECORDS
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EXTRACTED KEY WORDS
BOOKS REQUEST PLAINTIFF DELAWARE LIMITED LIABILITY MEMBER EXHIBIT ENCORE OPPORTUNITY FUND LIMITED LIABILITY COMPANY AGREEMENT COURT COMMON REVIEW DEMAND INSPECTION RESPONSE EXTRACTS COUNSEL ACT CHANCERY DEFENDANT COMPLAINT DESIGNEES REASONS EXAMINATION ACCOMMODATE PURPOSE REGARD MEETING ZOTH |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AUSTIN CAPITAL & RADIX STERLING ~
FUND, LTD.,
Plaintiff,
v.
ENCORE OPPORTUNITY FUND, L.L.C.,
a Delaware limited liability company,
Defendant.
COMPLAINT TO INSPECT BOOKS AND RECORDS
1. Plaintiff Austin Capital & Radix Sterling Fund, Ltd. ("Austin Capital")
is and at all times pertinent hereto has been a common member of the defendant
Encore Opportunity Fund, L.L.C., a Delaware limited liability company (the "LLC").
Its righ.ts as a member are governed by the terms of a Limited Liability Company
Agreement of Encore Opportunity Fund, L.L.C. (the "LLC Agreement").
2. The LLC's registered agent for service of process within the State of
Delaware is Kenneth J. Marino, Esquire, Chase Manhattan Centre, Suite 2100,
Wilmington, Delaware 19801.
3. Section 9.2 of the LLC Agreement provides as follows:
Section 9.2 Books and Records. At all times during
the existence of the Company, the Company shall cause to
be maintained full and accurate books of account, which
shall reflect all Company transactions. The books and
records of the Company shall be maintained at the offices
of the Company and/or such other places as the Managing
Member may designate. Each Common Member (or such
9999.9999\103665vZ
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